Exhibit 2.8
LOAN PURCHASE AGREEMENT
dated as of
February 5, 2007
between
THE FIRST NATIONAL BANK OF IPSWICH
and
SOUTHERN NEW HAMPSHIRE BANK AND TRUST COMPANY
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LOAN PURCHASE AGREEMENT
LOAN
PURCHASE AGREEMENT, dated as of February 5, 2007, between THE
FIRST
NATIONAL BANK OF IPSWICH, national banking association, having an
address of 31
Market Street, Ipswich, Massachusetts 01938-0031 ("Seller"), and
SOUTHERN NEW
HAMPSHIRE BANK AND TRUST COMPANY, a New Hampshire trust company,
having an
address of 31 Pelham Road, Salem, New Hampshire 03079
("Purchaser").
RECITALS
A. Seller.
Seller is a national banking association and is a member of the
Deposit Insurance Fund (the "DIF") of the Federal Deposit Insurance
Corporation
(the "FDIC") with its principal executive offices located in
Ipswich,
Massachusetts.
B.
Purchaser. Purchaser is a trust company organized under the laws of
the
State of New Hampshire and is a member of the DIF of the FDIC with
its principal
executive offices located in Salem, New Hampshire.
C.
Corporate Approvals. Each of the parties to this Agreement has
obtained
all necessary corporate approvals for the execution and delivery of
this
Agreement.
NOW,
THEREFORE, in consideration of their mutual promises and
obligations
and intending to be legally bound hereby, the parties agree as
follows:
ARTICLE 1
CERTAIN DEFINITIONS
1.1
Certain Definitions. As used in this Agreement, the terms below
shall
have the meanings set forth.
"Affiliate" of a person means any person directly or indirectly
controlling or controlled by or under direct or indirect common
control with
such person.
"Agreement" means this Loan Purchase Agreement, including all
exhibits and
addenda as modified, amended or extended from time to time.
"Bank
Commissioner" means the New Hampshire Bank Commissioner.
"Business Day"
means a day on which Seller is open for business in New
Hampshire and which is not a Saturday or Sunday. Unless the term
Business Day is
used, the term "day" shall refer to a calendar day.
"Closing"
shall have the meaning set forth in Section 10.1.
"Encumbrance" means any mortgage or deed of trust, pledge,
hypothecation,
assignment, deposit arrangement, lien, charge, claim, security
interest,
easement or encumbrance, or preference, priority or other security
agreement or
preferential arrangement of any kind or nature whatsoever
(including any lease
or title retention agreement, any financing lease having
substantially the same
economic effect as any of the foregoing, and the filing of, or
agreement to
give, any financing statement perfecting a security interest under
the UCC or
comparable law of any jurisdiction).
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"Hazardous
Substances" means, without limitation: (a) those substances
included within the definitions of any one or more of the terms
"hazardous
substances", "hazardous materials", "toxic substances", and
"hazardous waste" in
the Comprehensive Environmental Response, Compensation and
Liability Act, as
amended, 42 U.S.C. 9601 et seq., the Resource Conservation and
Recovery Act, as
amended, 42 U.S.C. 6901 et seq., the Toxic Substances Control Act,
as amended,
15 U.S.C. 2601 et seq., and the Hazardous Materials Transportation
Act, as
amended, 49 U.S.C. 1801 et seq., and in the regulations promulgated
pursuant to
said laws; (b) those substances listed in the U.S. Department of
Transportation
Table (49 CFR 172.101 and amendments thereto) or by the
Environmental Protection
Agency (or any successor agency) as hazardous substances (40 CFR
302 and
amendments thereto); (c) such other substances, materials and
wastes as are or
become regulated under applicable local, state or federal laws, or
as are
classified as hazardous or toxic under federal, state or local laws
or
regulations; and (d) any materials, wastes or substances that are
(i) petroleum,
(ii) asbestos, (iii) polychlorinated biphenyls, (iv) within the
definition of
"hazardous substance" set forth in Section 311 of the Clean Water
Act, 13 U.S.C.
1321 et seq. (33 U.S.C. 1321) or designated as "toxic pollutants"
subject to
Chapter 26 of the Clean Water Act pursuant to Section 307 of the
Clean Water Act
(33 U.S.C. 1317); (v) flammable explosives; or (vi) radioactive
materials.
"Loan
Documents" means all documents executed or delivered in
connection
with any Loan, including, without limitation, notes, mortgages,
deeds of trust,
security agreements, loan agreements, including building and loan
agreements,
guarantees, sureties and insurance policies and all modifications,
waivers and
consents relating to any of the foregoing.
"Loan"
means any loan set forth on Exhibit A and shall include (i) any
and
all advances or extensions of credit made in connection with such
loans in the
ordinary course of Seller's business between the date hereof and
the Closing,
and modifications to such existing loans, entered into after the
date hereof in
the ordinary course of Seller's business, and (ii) any and all
other loans made
after the date hereof and before the Closing consented to by
Purchaser. "Loan"
shall exclude all extensions of credit made under overdraft
protection
facilities, but shall include all line of credit facilities of
Seller. Exhibit A
shall be updated as of the Closing. Notwithstanding anything in
this Agreement
to the contrary, Purchaser shall have the right to exclude from the
transaction
any Subject Loan, which excluded loan shall not be transferred to
Purchaser
pursuant to Section 2.1. A "Subject Loan" shall mean any loan
listed on Exhibit
A which is classified or classifiable as of the Closing as "loss,"
"doubtful,"
"substandard," "special mention" or any similar classification in
accordance
with the Purchaser's loan review policies and procedures or any
applicable
rules, regulations, policies or procedures of the FDIC or the Bank
Commissioner.
"Losses"
means any loss, fee, cost, expense, damage, liability or
obligations which a party may receive, suffer, or incur, including
reasonable
attorney's fees, but excludes any punitive or consequential
damages.
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"Material
Adverse Effect" means, with respect to Seller, a material
adverse effect on the Loans, taken as a whole or, with respect to
either Seller
or Purchaser, a material adverse effect on the party's ability to
perform its
obligations under this Agreement and to consummate the transactions
contemplated
hereby.
"Purchase
Premium" means the amount specified as such in Section 2.2.
"Purchaser's knowledge" or other similar phrases shall mean
information
which is known to any executive officer (meaning any officer
holding an office
of senior vice president or above) of Purchaser.
"Records"
means all records and original documents in Seller's possession
which pertain to and are utilized by Seller to administer, reflect,
monitor,
evidence or record information respecting the Loans.
"Seller's
knowledge" or other similar phrases shall mean information
which
is known to any branch manager or to any executive officer (meaning
any officer
holding an office of senior vice president or above) of Seller.
ARTICLE 2
LOAN PURCHASE TRANSACTION
2.1
Transfer and Consideration. Subject to the terms and conditions
set
forth in this Agreement and except as may otherwise be indicated in
any of the
exhibits hereto, at the Closing, Purchaser shall purchase the Loans
for an
amount equal to the sum of the unpaid principal amount of the Loans
transferred
at the Closing, the amount of accrued interest on all such Loans
and the
Purchase Premium; and at the Closing Seller shall sell, assign,
transfer, convey
and deliver to Purchaser, free and clear of all Encumbrances, all
of Seller's
right, title and interest in and to such Loans and deliver all of
the Records to
Purchaser. In addition, Seller shall transfer to Purchaser all
funds held in
escrow for payment of real property taxes due with respect to real
property
securing the Loans. Furthermore, Purchaser shall reimburse Seller
for any
amounts that have been advanced by Seller on behalf of its
borrowers for payment
of real property taxes due with respect to the real property
securing the Loans,
which amounts are being recovered by adjustments to the escrow
payments to be
made by the borrowers. Said amounts shall be listed on Exhibit
A.
2.2
Purchase Premium. The Purchase Premium payable by Purchaser to
Seller
shall be an amount equal to 2.5% of the unpaid principal balance of
the Loans as
of the Closing.
ARTICLE 3
LIMITATION OF LIABILITIES ASSUMED
3.1
Limitation of Liabilities Assumed. Notwithstanding anything in
this
Agreement to the contrary, except as otherwise expressly provided
in this
Agreement, neither Purchaser nor any of its Affiliates shall assume
pursuant
hereto any liabilities, obligations or duties of Seller or any of
its Affiliates
of any kind or nature, whether or not accrued or fixed, absolute or
contingent,
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determined or determinable (including, without limitation, any
penalties, fines
or compensatory or punitive damages of any kind whatsoever),
existing at the
time of or arising out of or relating to acts, events or omissions
to act that
occurred at or prior to the Closing. The Purchaser hereby expressly
agrees to
assume all obligations of Seller under the Loan Documents, arising
on or after
the Closing, including without limitation, (i) obligations to make
future
advances and extensions of credit in accordance with the terms of
the Loan
Documents, and (ii) obligations to make new loans and extensions of
credit
pursuant to commitments made by Seller prior to the Closing and to
which the
Purchaser consented prior to Closing.
ARTICLE 4
TRANSITIONAL MATTERS
4.1
Transitional Arrangements. Seller and Purchaser agree to proceed
as
follows to effect the conversion of data processing responsibility
for the
Loans:
(a)
Promptly after the execution of this Agreement, Seller will meet
with
Purchaser to investigate, confirm and agree upon, to the extent not
otherwise
provided for in this Agreement, mutually acceptable transaction
settlement
procedures and specifications, files, including without limitation
conversion
sample files, procedures and schedules, for the transfer of the
data processing
responsibility with regard to the Loans.
(b) Upon
request by Purchaser, Seller will make available from time to
time a reasonable number of technical personnel for consultation
with Purchaser
concerning the matters referred to in the foregoing provisions of
this Section
4.1, provided, however, that any such post-closing consultation
shall be subject
to Seller's consent, not to be unreasonably withheld.
4.2
Maintenance of Records. Through the Closing, Seller will maintain
the
Records relating to the Loans in the same manner and with the same
care that the
Records have been maintained prior to the execution of this
Agreement. Purchaser
may, at its own expense, make such copies of and excerpts from the
Records as it
may deem desirable. All Records, whether held by Purchaser or
Seller, shall be
maintained for such periods as are required by law, unless the
parties shall,
applicable law permitting, agree in writing to a different period.
From and
after the Closing, each of the parties shall permit the other
reasonable access
to any applicable Records in its possession relating to matters
arising before
or after the Closing and reasonably necessary in connection with
any claim,
action, litigation or other proceeding involving the party
requesting access to
such Records or in connection with any legal obligation owed by
such party to
any present or former customer.
4.3 Data
Processing Conversion. The conversion of the data processing
with
respect to the Loans to be transferred hereunder will be completed
on the
Closing. Seller and Purchaser agree to cooperate to facilitate the
orderly
transfer of all data processing information.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller
represents and warrants as follows:
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5.1
Corporate Organization and Authority. Seller is a national
banking
association, duly organized, validly existing and in good standing
under the
laws of the United States of America and has the requisite power
and authority
to conduct the business with respect to the Loans. Seller has the
requisite
corporate power and authority and has taken all corporate action
necessary in
order to execute and deliver this Agreement and to consummate the
transactions
contemplated hereby. This Agreement and the other documents
executed in
connection herewith are valid and binding agreements of Seller
enforceable in
accordance with their respective terms subject, as to enforcement,
to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and
similar laws of general applicability relating to or affecting
creditors' rights
and to general equity principles.
5.2 No
Conflict; Licenses and Permits; Compliance with Laws and
Regulations.
The
execution, delivery and performance of this Agreement by Seller
does
not, and will not, (i) violate any provision of its charter or
by-laws, (ii)
violate any law, rule or regulation, or (iii) violate or constitute
a breach of
or default under any judgment, decree, ruling or order of any
court, government
or governmental agency to which Seller is subject or under any
agreement or
instrument of Seller, or to which Seller is subject or is a party
or by which
Seller is otherwise bound, or to which any of the Loans are
subject, which
violation, breach, contravention or default referred to in this
clause (iii)
would have a Material Adverse Effect on Seller, individually or in
the
aggregate. Seller has all material licenses, franchises, permits
certificates of
public convenience, orders and other authorizations of all federal
state and
local governments and governmental authorities necessary for the
lawful conduct
of its business as it is now conducted and all such license
franchises, permits,
certificates of public convenience, orders and other
authorizations, are valid
and in good standing and, to Seller's knowledge, are not subject to
any
suspension, modification or revocation or proceedings related
thereto.
5.3
Approvals and Consents. No notices to, consents, approvals, permits
or
authorizations from, or any other filings or registrations with,
any
governmental agency or authority, are required to be made or
obtained by Seller,
nor are any notices to, consents, approvals, permits or
authorizations from, or
any other filings or registrations with, any nongovernmental third
party
required to be made or obtained by Seller; in connection with the
execution and
delivery of this Agreement by Seller and the consummation by Seller
of the
transactions contemplated hereby.
5.4 Title
to Loans. Seller has sole, good and marketable title to the
Loans free and clear of all Encumbrances, except for such
participations as are
documented in the related Loan Documents or other Records.
5.5
Litigation and Liabilities. There are no actions, suits or
proceedings
pending or, to Seller's knowledge, threatened against Seller or any
of its
subsidiaries, violations of law or regulation, or obligations or
liabilities,
whether or not accrued, contingent or otherwise, or any facts or
circumstances
of which Seller is awarethat could result in any claims against or
obligations
or liabilities of Seller or any of its subsidiaries that,
individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect on
Seller.
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5.6
Regulatory Matters. There are no pending, or, to Seller's
knowledge,
threatened, disputes or controversies between Seller and any
federal, state or
local governmental agency or authority that, individually or in the
aggregate,
directly involve or reasonably could be expected to have a Material
Adverse
Effect on Seller's ability to perform its obligations under this
Agreement.
5.7
Brokers' Fees. Seller has not employed any broker or finder or
incurred any liability for any brokerage fees, commissions or
finders fee in
connection with the transactions contemplated by this Agreement,
except for its
obligations to Northeast Capital and Advisory, Inc. pursuant to the
agreement
with Seller dated October 18, 2006.
5.8
Loans.
(a) Seller
represents and warrants that all of the Loans are presently
serviced by Seller and, prior to the Closing, will continue to be
serviced by
Seller, and that there are no obligations, agreements or
understandings
whatsoever that could result in any Loan becoming subject to any
such third
party servicing, and Seller will not undertake any such obligation
or enter into
any such agreement or understanding.
(b) Seller
further represents and warrants with respect to each Loan as
follows:
(1) With respect
to each Loan:
(i) Such Loan was solicited, originated and currently exists in
material
compliance with all applicable requirements of federal, state,
and local
laws and regulations promulgated thereunder;
(ii) Each note evidencing the Loan constitutes a valid, legal
and
binding
obligation of the obligor thereunder enforceable in accordance
with its
terms, subject as to enforcement to bankruptcy, insolvency and
other laws
of general applicability relating to or affecting creditors'
rights and
to general principles of equity, and any related security
instrument
with respect to primary collateral of the obligor constitutes a
valid,
legal and binding obligation of the obligor thereunder
enforceable
in
accordance with its terms, subject as to enforcement to
bankruptcy,
insolvency
and other laws of general applicability relating to or
affecting
creditors' rights and to general principles of equity;
(iii) To Seller's knowledge, the terms of the Loan Documents
for
each Loan
are consistent in all material respects with the terms of
Seller's
internal loan approval process and underwriting policies and
procedures
and there has been no material modification to or waiver of
such terms
except as evidenced in documents executed by the parties and
included
in the Loan Documents;
(iv) To Seller's knowledge, no written claim or defense as to
the
enforcement of any Loan has been asserted against Seller for which
there
is a
reasonable possibility of adverse determination; and
(v) There is no payment of principal or of interest on the Loan
which is
more than 45 days past due.
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(2) With respect to each Loan that is a commercial real estate
loan
(except as indicated on Exhibit A), Seller is not aware of the
existence of any
Hazardous Substances on or under or within the commercial property
securing such
Loan.
(3) A title insurance policy is in effect for each Loan secured by
a
first mortgage on real property where such real property is
intended to be the
primary collateral for such Loan, and Seller is the sole owner of
each such
Loan, except for such participations as are documented in the
related Loan
Documents or other Records.
5.9
Regulatory Approvals. Neither Seller nor any of its Affiliates
has
received any indication from any federal, state or other
governmental agency
that such agency would oppose or refuse to grant or issue its
consent or
approval, if required, with respect to the transactions
contemplated hereby.
5.10
Agreements with Regulatory Authorities. Seller is not a party to
any
written order, decree, agreement or memorandum of understanding
with, or
commitment letter or similar submission to, any federal or state
governmental
agency or authority charged with the supervision or regulation of
depository
institutions or engaged in the insurance of deposits which order,
decree,
agreement, memorandum of understanding, commitment letter or
submission (i)
could reasonably be expected to prevent or impair the ability of
Seller to
perform its obligations under this Agreement in any material
respect or (ii)
could impair the validity or consummation of this Agreement or the
transactions
contemplated hereby.
5.11
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