Exhibit 2.2
LOAN PURCHASE AGREEMENT
between
THE FIRST NATIONAL BANK OF IPSWICH
and
ATLANTIC BANK OF NEW YORK
<PAGE>
TABLE OF CONTENTS
Page
SECTION I
Definitions.................................................1
SECTION II
Agreement to Purchase.......................................5
SECTION III Purchase
of Loans...........................................5
SECTION IV
Rights to Payments on the Loans.............................5
SECTION V
Closing.....................................................6
SECTION VI
Representations, Warranties and Covenants of Seller.........6
SECTION VII
Repurchase.................................................13
SECTION VIII Representations,
Warranties and Covenants of Purchaser.....14
SECTION IX
Closing Documents..........................................15
SECTION X
Costs......................................................16
SECTION XI
Post-Closing Matters.......................................16
SECTION XII
Indemnification............................................16
SECTION XIII
Confidentiality............................................17
SECTION XIV
Termination................................................17
SECTION XV
Notices....................................................17
SECTION XVI Survival
of Agreement......................................19
SECTION XVII
Severability...............................................19
SECTION XVIII
Counterparts...............................................19
SECTION XIX Governing
Law..............................................19
SECTION XX
Successors and Assigns.....................................20
SECTION XXI Further
Agreements.........................................20
SECTION XXII Public
Announcements.......................................20
SECTION XXIII
Amendments.................................................20
SECTION XXIV
Interpretation.............................................20
SECTION XXV Intention
of the Parties...................................21
SECTION XXVI
Modification...............................................21
SECTION XXVII
Waivers....................................................21
SECTION XXVIII Schedules and
Headings.....................................21
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SCHEDULES
SCHEDULE I
Schedule of Loans To Be Purchased at Par (including
Exceptions from loan policy and location of collateral)
SCHEDULE II
Schedule of Loans To Be Purchased Below Par (including
Exceptions from loan policy and location of collateral)
SCHEDULE III Delinquent
Charges on Collateral
SCHEDULE IV
Hazardous Substances
SCHEDULE V
Revolving Loans and approved but not yet funded construction
and other Loans
SCHEDULE VI
Governmental Notifications
SCHEDULE VII
Litigation
SCHEDULE VIII Material
Information
SCHEDULE IX
Letters of credit
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This Loan
Purchase Agreement (this "Agreement") is entered into as of
February 22, 2005 by and between THE FIRST
NATIONAL BANK OF IPSWICH, a national
bank ("Purchaser") and ATLANTIC BANK OF NEW
YORK, a New York commercial bank
("Seller").
RECITALS
WHEREAS,
Seller and Purchaser have entered into a Purchase and
Assumption
Agreement, dated February 22, 2005 (the
"P&A Agreement"), pursuant to which
Purchaser will purchase the Assets (as
defined in the P&A Agreement) and assume
the Liabilities (as defined in the P&A
Agreement); and
WHEREAS,
Seller desires to sell, and Purchaser desires to purchase as
part
of the Assets, certain of the loans of
Seller on the terms and conditions
described below.
NOW,
THEREFORE, in consideration of the premises and mutual agreements
set
forth herein, and for other good and
valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as
follows:
I.
DEFINITIONS.
As used in
this Agreement, the capitalized terms set forth below shall
have the respective meanings set forth
below; terms importing the singular shall
include the plural and vice versa:
"Assignment" means an individual assignment of a Mortgage or
Security
Agreement, notice of transfer or equivalent
instrument in recordable form,
sufficient under the laws of the
jurisdiction wherein the related Real Property
Interest is located to reflect of record
the sale or transfer of the related
Loan.
"Business
Day" means any day other than a Saturday, Sunday or any other
day on which banking institutions in
Massachusetts are permitted or required by
any applicable law or executive order to
close.
"Collateral" means (i) every item of collateral in which a
security
interest, pledge, mortgage, or assignment
is granted by an Obligor in connection
with a Loan, including, without limitation,
the Equipment, Real Property
Interests and Improvements pledged by such
Obligor as collateral under the
related Loan Documents and (ii) any
property interest in which a security
interest or other interest has been granted
under applicable federal or state
law in effect from time to time, including,
without limitation, under the UCC
with respect to the Loans. The foregoing
shall include, without limitation,
Seller's rights (a) under investment or
share owner certificates or other
evidence of the right to receive payment,
(b) as lien holder of any item of
personal property the ownership of which is
evidenced by a certificate of title
and (c) all proceeds of the foregoing
(including all insurance proceeds).
"Due Date"
means, with respect to any Loan, the day of the month set forth
in the related Note on which each monthly
payment on such Loan is scheduled to
be due, without regard to grace
periods.
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"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).
"Environmental Laws" means all federal, state, and local laws,
statutes,
ordinances and regulations, now or
hereafter in effect, and in each case as
amended or supplemented from time to time,
and any judicial or administrative
interpretation thereof, including, without
limitation, any applicable judicial
or administrative order, consent decree or
judgment, relative to any Real
Property Interest, relating to the
regulation and protection of the environment
and natural resources (including, without
limitation, ambient air, surface
water, groundwater, wetlands, land surface
or subsurface strata, wildlife,
aquatic species and vegetation).
Environmental Laws include but are not limited
to 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., the Hazardous
Materials Transportation Act, as amended,
49 U.S.C. 1801 et seq., the Federal
Insecticide, Fungicide, and Rodenticide Act,
as amended (7 U.S.C. 136 et seq.), the
Clean Air Act, as amended (42 U.S.C. 740
et seq.), the Federal Water Pollution
Control Act, as amended (33 U.S.C. 1251 et
seq.), the Occupational Safety and Health
Act, as amended (29 U.S.C. 651 et
seq.), the Safe Drinking Water Act, as
amended (42 U.S.C. 300(f) et seq.), the
Clean Water Act (33 U.S.C. 1251 et seq.),
the National Environmental Policy Act
of 1969 (42 U.S.C. 4321), Title III of the
Superfund Amendment and Authorization
Act (40 U.S.C. 1101 et seq.), Massachusetts
Oil and Hazardous Material Release
Prevention and Response Act (M.G.L. c.
21E), and the Massachusetts Hazardous
Waste Management Act (M.G.L. c. 21C), and
any and all regulations promulgated
thereunder, and all analogous state and
local counterparts or equivalents and
any transfer of ownership or notification
or approval statutes.
"Equipment" means, with respect to any Loan, any and all personal
property
which would constitute "equipment" under
the UCC securing such Loan, together
with all accessories, attachments,
accessions, parts, repairs, substitutions,
replacements and upgrades now or hereafter
affixed to or used in connection
therewith and included in the Collateral
for such Loan.
"Governmental Entity" means a federal, state, provincial, local,
county or
municipal government, governmental,
regulatory or administrative agency,
department, commission board, bureau or
other authority or instrumentality,
domestic or foreign.
"Guarantee" means a guarantee executed by any Person, guaranteeing
payment
and/or performance of all or a part of a
borrower's obligations under a Loan.
"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
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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.
"Improvements" means all buildings, structures, improvements,
parking
areas, landscaping, Equipment, fixtures and
articles of property now or
hereafter erected on, attached to, or used
or adapted for use in the operation
of any Real Property Interests, including,
without limitation, all heating, air
conditioning and incinerating apparatus and
equipment, all boilers, engines,
motors, dynamos, generating equipment,
piping and plumbing fixtures, water
heaters, ranges, cooking apparatus and
mechanical kitchen equipment,
refrigerators, freezers, cooling,
ventilating, sprinkling and vacuum cleaning
systems, fire extinguishing apparatus, gas
and electric fixtures, carpeting,
floor covering, underpadding, elevators,
escalators, partitions, mantels,
built-in mirrors, window shades, blinds,
draperies, screens, storm sashes,
awnings, signs, furnishings of public
spaces, halls and lobbies, and shrubbery
and plants.
"Interest
Accrual Period" means, with respect to each Due Date related to
any Loan, the period commencing on the
immediately preceding Due Date and ending
on the day immediately preceding such Due
Date.
"Interest
Rate" means, with respect to any Loan, the annualized rate at
which interest is scheduled (in the absence
of a default) to accrue on such Loan
from time to time during any Interest
Accrual Period in accordance with the
related Note and applicable law.
"Loans"
means the loans or extensions of credit identified on the Loan
Schedules.
"Loan
Amount" means the sum of (i) the aggregate amount of the
purchase
price for all loans stated on Schedule II
and (ii) the aggregate amount of the
unpaid principal balance and accrued and
unpaid interest stated on Schedule I
for all other Loans.
"Loan
Documents" means, with respect to each Loan, (i) any and all
agreements between Seller (or any of its
predecessors in interest) and any
third-party with respect to the Loan or the
Collateral described in the Loan and
(ii) any and all documents connected with
the Loan executed by any Obligor with
respect to such loan, including, without
limitation, originally executed copies
of any and all notes, pledge and security
agreements, schedules, Mortgages,
assignments of rents, subordination
agreements, amendments (including any
3
<PAGE>
documents amending, modifying or otherwise
altering any Loan Document), addenda,
riders, UCC financing statements, consents
by landlords or other persons,
indemnity agreements, environmental reports
and assessments with respect to any
Real Property Interests, any appraisals and
surveys with respect to any Real
Property Interests, any Guarantees, any
opinions of counsel, all insurance
certificates and policies, including, but
not limited to, real estate and
leasehold title insurance policies, and any
documents evidencing any credit
enhancements.
"Loan
Files" means the Loan Documents and all other information in
the
possession of Seller pertaining to the
Loans.
"Lost Note
Affidavit and Indemnity" means an affidavit and indemnity
executed by an authorized officer of the
Seller, together with a copy of the
related Note.
"Mortgage"
means a mortgage, deed of trust, leasehold mortgage or
leasehold deed of trust given by an Obligor
to secure the repayment to Seller of
a Loan and the performance of any other
obligations required under the related
Loan Documents.
"Note"
means the original executed promissory note evidencing the
indebtedness of the Obligor under a Loan,
together with any rider, addendum or
amendment thereto, or any renewal,
substitution or replacement of such
promissory note.
"Obligor"
means, with respect to any Loan or credit enhancement, any
Person that is an obligor, borrower or
guarantor under such Loan or credit
enhancement or has granted a mortgage or
security interest in Collateral to
secure such Loan or credit enhancement, and
shall include the successors and
assigns of such Persons.
"Payments"
means, with respect to each Loan, all monies due or to become
due under such Loan, including, without
limitation, all payments of principal
and interest, late fees, prepayment fees,
collections, recoveries or proceeds
(including proceeds from insurance
policies, condemnation or liquidation) on or
in respect of such Loan.
"Permitted
Encumbrance" means (1) the lien of current real property taxes,
water charges, sewer rents and assessments
not yet due and payable or payable
but not yet delinquent, (2) covenants,
conditions and restrictions, rights of
way, easements and other matters of public
record as of the date of recording
which are acceptable to mortgage lending
institutions generally, which are
specifically referred to in the related
Title Policy and which do not,
individually or in the aggregate,
materially and adversely affect the current
use, value or marketability of the related
Real Property Interest, or which are
insured over in the related title policy,
(3) exceptions and exclusions
specifically referred to in such related
Title Policy and (4) other matters to
which like properties are commonly subject
which do not, individually or in the
aggregate, materially interfere with the
benefits of the security intended to be
provided by the Mortgage or the current use
of such Real Property Interest.
"Person"
means any individual, partnership, corporation, trust, limited
liability company, unincorporated
organization, Governmental Entity or any other
entity.
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"Real
Property Interest" means, with respect to each Loan secured in
whole
or in part by a Mortgage, the real property
described in such Mortgage,
including all easements, rights,
appurtenances, tenements, rents, royalties,
mineral, oil and gas rights and profits,
water, water rights and water stock
appurtenant to such property described in
such Mortgage.
"Security
Agreement" means, with respect to any Loan secured by
Collateral
other than Real Property Interests and
Improvements, the pledge, security
agreement or similar instrument that
secures the related Note and creates a lien
on the related Collateral.
"Title
Policy" has the meaning set forth in Section VI. B. 16 of this
Agreement.
"UCC"
means the Uniform Commercial Code as in effect from time to time
in
each applicable jurisdiction.
All
capitalized terms not defined in this Agreement shall have the
meanings provided in the P&A
Agreement.
II.
AGREEMENT TO
PURCHASE.
On the
Closing Date, Seller agrees to sell, and Purchaser agrees to
purchase, on the terms and conditions
stated below, the loans described in the
schedules attached hereto as Schedule I and
Schedule II (which shall hereafter
be referred to as the "Loan Schedules") as
updated as of a date no more than two
(2) Business Days prior to the Closing
Date. The Loan Schedules shall be agreed
to and signed by the Seller and Purchaser
and shall set forth the names of the
Obligors and the date of the Note for each
Loan and as of the date of the Loan
Schedule, the aggregate principal balance
of each Loan, the accrued and unpaid
interest of each Loan as of that date and
the purchase price for each Loan.
Purchaser shall be under no obligation to
purchase a loan which is not included
in the Loan Schedules. Specifically,
Purchaser shall not be obligated to
purchase a loan approved by Seller after
the date hereof unless Purchaser has
specifically agreed to purchase such loan
in writing, subject to such loans'
compliance with the terms and conditions of
this Agreement at the time of the
Closing.
III.
PURCHASE OF LOANS.
A. At the
Effective Time, subject to the terms and conditions set forth
herein, Seller will sell, convey, assign
and transfer to Purchaser and Purchaser
shall purchase from Seller, at the price
and upon the terms and conditions set
forth herein, all of Seller's right, title
and interest, as of the Effective
Time, in and to the Loans, free and clear
of all Encumbrances.
B.
Purchaser shall pay Seller the Loan Amount.
IV.
RIGHTS TO
PAYMENTS ON THE LOANS.
Purchaser
shall be entitled to all payments of principal and interest and
other recoveries on the Loans received by
Seller after the delivery of the final
Loan Schedules, to be delivered no more
than two (2) Business Days before the
Closing, and prior to the Closing Date, and
all payments of principal and
interest and other recoveries on the Loans
made on and after the Closing Date
within two (2) Business Days after receipt
thereof.
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V.
CLOSING.
The
closing of the purchase and sale of the Loans shall take place on
the
Closing Date and shall be subject to the
conditions set forth in the P&A
Agreement and the consummation of all of
the transactions contemplated
thereunder and the purchase of the
Premises.
The
obligation of Purchaser to purchase the Loans as contemplated by
this
Agreement shall also be subject to each of
the following additional conditions:
A. all of the representations and warranties under this
Agreement
(including, without limitation, in the
attached Schedules) by Seller shall be
true and correct in all material respects
as of the Closing Date, and no default
by Seller or event which, with the giving
of notice or the passage of time or
both, would constitute an event of default
by Seller under this Agreement shall
have occurred;
B. Purchaser shall have received executed originals of the
Closing
Documents specified in Section 9 of this
Agreement; and
C. all other terms and conditions of the Seller under this
Agreement
shall have been complied with in all
material respects.
The obligation of Seller to
sell the Loans as contemplated by this
Agreement shall also be subject to each of
the following additional conditions:
A. all of the representations and warranties under this Agreement
by
Purchaser shall be true and correct in all
material respects as of the Closing
Date, and no default by Purchaser or event
which, with the giving of notice or
the passage of time or both, would
constitute an event of default by Purchaser
under this Agreement shall have occurred;
and
B. all other terms and conditions of the Purchaser under this
Agreement shall have been complied with in
all material respects.
VI.
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF SELLER.
A. Seller represents and warrants to Purchaser as of the date
of
this Agreement, and shall be deemed to
restate on the Closing Date, as follows:
1. The execution and delivery of this Agreement by Seller, and
the
performance and compliance with the terms of this Agreement by
Seller,
will not
violate Seller's organizational documents or constitute an
event
which,
with notice or lapse of time or both, would constitute a
default
under, or
result in the breach of, any material agreement or other
instrument
to which Seller is a party or by which it is bound.
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2. Seller has the full power and authority to enter into and
consummate
all transactions contemplated by this Agreement, has duly
authorized the
execution, delivery and performance of this Agreement and
has duly
executed and delivered this Agreement.
3. Assuming due authorization, execution and delivery by
Purchaser,
this
Agreement constitutes a valid, legal and binding obligation of
Seller,
enforceable against Seller in accordance with its terms,
subject
to (A)
applicable conservatorship, receivership and other laws
affecting
the
enforcement of creditors' rights generally and (B) general
principles
of equity,
regardless of whether such enforcement is considered in a
proceeding
in equity or at law.
4. Seller is not in violation of, and its execution and delivery
of
this
Agreement and its performance and compliance with the terms of
this
Agreement
will not constitute a violation of, any law, any order or
decree
of any
court or arbiter, or any order, regulation or demand of any
federal,
state or local governmental authority, which violation is
likely
to
adversely affect the ability of Seller to perform its obligations
under
this
Agreement or to materially and adversely affect the financial
condition
of Seller.
5. No litigation is pending or, to Seller's knowledge,
threatened
against
Seller that, if determined adversely to Seller, would prohibit
Seller
from entering into this Agreement or that is likely to
adversely
affect the
ability of Seller to perform its obligations under this
Agreement
or to materially and adversely affect the financial condition
of
Seller.
6. Seller has not dealt with any broker, investment banker, agent
or
other
person that may be entitled to any commission or compensation
in
connection
with the sale of the Loans by Seller or the consummation of any
other
transactions contemplated hereby.
B. Seller represents and warrants to, and covenants with,
Purchaser
with respect to each Loan, that as of the
date of each initial Loan Schedule and
shall be deemed to restate on the Closing
Date:
1. The information concerning each Loan set forth on each
schedule
attached
hereto is true and correct as of the date indicated thereon.
All
information in the Loan Files has been provided to Purchaser and is
true
and
correct in all material respects as of the date indicated therein.
All
information on Schedule VIII has been provided to Purchaser and is
true
and
correct in all material respects as of the date indicated
therein.
2. All of the Loan Documents and all signatures therein are
genuine
and
represent the legal, valid and binding obligation of the Obligor
to
Seller,
enforceable against each Obligor in accordance with their terms
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except as
such enforcement may be limited by the application of
bankruptcy, insolvency, reorganization or other similar laws
affecting the
enforcement of creditors' rights generally and by general
equity
principles
(regardless of whether such enforcement is considered in a
proceeding
in equity or at law). No Loan has been satisfied, subordinated,
assigned
or rescinded, in whole or in part, or impaired, altered,
waived,
canceled
or modified, nor, to the knowledge of Seller, has any
Equipment,
Improvement or Real Property Interest been subleased since the
origination
of the
Loan, in whole or in part.
3. Each of the Loans is free and clear of all Encumbrances and,
to
Seller's
knowledge, the related Collateral is free and clear of all
Encumbrances. Seller is the sole owner of the right to receive
all
principal,
interest and all other amounts required to be paid to the
lender under such Loan.
Seller is the sole owner and holder of such Loan
and has
the full right, power and authority with respect to such Loan.
Seller is
not subject to any interest or participation of, or agreement
with, any
third party, to sell, transfer and assign the same or any
portion
thereof. Seller is the original payee of the note representing
each Loan,
except for Loans originated by the National Bank of Greece
which
shall be endorsed by the National Bank of Greece to Seller prior
to
closing.
With respect to each of the Loans, each assignment of the
related
Mortgage
and/or Security Agreement is in recordable form and such
assignment, together with the related Note and all assignments of
any
other related
Loan Do
