EX-2.3 4 ex2-3.txt Exhibit 2.3 LOAN PURCHASE AGREEMENT between THE FIRST NATIONAL BANK OF IPSWICH and OMEGA COMMERCIAL MORTGAGE CORP. TABLE OF CONTENTS Page SECTION I Definitions.................................................1 SECTION II Agreement to Purchase.......................................5 SECTION III Purchase of REIT Loans......................................5 SECTION IV Rights to Payments on the REIT Loans........................5 SECTION V Closing.....................................................6 SECTION VI Representations, Warranties and Covenants of REIT...........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 SCHEDULES SCHEDULE I Schedule of REIT Loans To Be Purchased at Par (including Exceptions from REIT Loan policy and location of collateral) SCHEDULE II Schedule of REIT Loans To Be Purchased Below Par (including Exceptions from REIT Loan policy and location of collateral) SCHEDULE III Delinquent Charges on Collateral SCHEDULE IV Hazardous Substances SCHEDULE V Revolving REIT Loans and approved but not yet funded construction and other REIT Loans SCHEDULE VI Governmental Notifications SCHEDULE VII Litigation SCHEDULE VIII Material Information This REIT 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 OMEGA COMMERCIAL MORTGAGE CORP., a Delaware corporation ("REIT"). RECITALS WHEREAS, REIT desires to sell, and Purchaser desires to purchase, certain of the loans of REIT 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 REIT 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 REIT 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 REIT Loan, including, without limitation, the Equipment, Real Property Interests and Improvements pledged by such Obligor as collateral under the related REIT 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 REIT Loans. The foregoing shall include, without limitation, REIT'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 REIT Loan, the day of the month set forth in the related Note on which each monthly payment on such REIT Loan is scheduled to be due, without regard to grace periods. "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 REIT Loan, any and all personal property which would constitute "equipment" under the UCC securing such REIT 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 REIT 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 REIT 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 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 2 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 REIT 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 REIT Loan, the annualized rate at which interest is scheduled (in the absence of a default) to accrue on such REIT Loan from time to time during any Interest Accrual Period in accordance with the related Note and applicable law. "Mortgage" means a mortgage, deed of trust, leasehold mortgage or leasehold deed of trust given by an Obligor to secure the repayment to REIT of a REIT Loan and the performance of any other obligations required under the related REIT Loan Documents. "Note" means the original executed promissory note evidencing the indebtedness of the Obligor under a REIT 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 REIT Loan or credit enhancement, any Person that is an obligor, borrower or guarantor under such REIT Loan or credit enhancement or has granted a mortgage or security interest in Collateral to secure such REIT Loan or credit enhancement, and shall include the successors and assigns of such Persons. 3 "Payments" means, with respect to each REIT Loan, all monies due or to become due under such REIT 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 REIT 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. "Real Property Interest" means, with respect to each REIT 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. "REIT Loans" means the REIT Loans or extensions of credit identified on the REIT Loan Schedules. "REIT Loan Amount" means the sum of (i) the aggregate amount of the purchase price for all REIT 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 REIT Loans. "REIT Loan Documents" means, with respect to each REIT Loan, (i) any and all agreements between REIT (or any of its predecessors in interest) and any third-party with respect to the REIT Loan or the Collateral described in the REIT Loan and (ii) any and all documents connected with the REIT Loan executed by any Obligor with respect to such REIT 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 documents amending, modifying or otherwise altering any REIT 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. 4 "REIT Loan Files" means the REIT Loan Documents and all other information in the possession of REIT or ABNY pertaining to the REIT Loans. "Lost Note Affidavit and Indemnity" means an affidavit and indemnity executed by an authorized officer of the REIT, together with a copy of the related Note. "Security Agreement" means, with respect to any REIT 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 Purchase and Assumption Agreement by and between Purchase and Atlantic Bank of New York, dated the date hereof (the "P&A Agreement"). II. AGREEMENT TO PURCHASE. On the Closing Date, REIT agrees to sell, and Purchaser agrees to purchase, on the terms and conditions stated below, the REIT Loans described in the schedules attached hereto as Schedule I and Schedule II (which shall hereafter be referred to as the "REIT Loan Schedules") as updated as of a date no more than two (2) Business Days prior to the Closing Date. The REIT Loan Schedules shall be agreed to and signed by the REIT and Purchaser and shall set forth the names of the Obligors and the date of the Note for each REIT Loan and as of the date of the REIT Loan Schedule, the aggregate principal balance of each REIT Loan, the accrued and unpaid interest of each REIT Loan as of that date and the purchase price for each REIT Loan. Purchaser shall be under no obligation to purchase a REIT Loan which is not included in the REIT Loan Schedules. Specifically, Purchaser shall not be obligated to purchase a REIT Loan approved or acquired by REIT after the date hereof unless Purchaser has specifically agreed to purchase such REIT Loan in writing, subject to such REIT Loans' compliance with the terms and conditions of this Agreement at the time of the Closing. III. PURCHASE OF REIT LOANS. A. At the Effective Time, subject to the terms and conditions set forth herein, REIT will sell, convey, assign and transfer to Purchaser and Purchaser shall purchase from REIT, at the price and upon the terms and conditions set forth herein, all of REIT's right, title and interest, as of the Effective Time, in and to the REIT Loans, free and clear of all Encumbrances. 5 B. Purchaser shall pay REIT the REIT Loan Amount. IV. RIGHTS TO PAYMENTS ON THE REIT LOANS. Purchaser shall be entitled to all payments of principal and interest and other recoveries on the REIT Loans received by REIT prior to the Closing Date and not reflected in the REIT Loan Schedules and all payments of principal and interest and other recoveries on the REIT Loans made on and after the Closing Date within two (2) Business Days after receipt thereof. V. CLOSING. The closing of the purchase and sale of the REIT 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 REIT 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 REIT shall be true and correct in all material respects as of the Closing Date, and no default by REIT or event which, with the giving of notice or the passage of time or both, would constitute an event of default by REIT 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 REIT under this Agreement shall have been complied with in all material respects. The obligation of REIT to sell the REIT 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 REIT. A. REIT represents and warrants to Purchaser as of the date of this Agreement, and shall be deemed to restate on the Closing Date, as follows: 6 1. The execution and delivery of this Agreement by REIT, and the performance and compliance with the terms of this Agreement by REIT, will not violate REIT'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 REIT is a party or by which it is bound. 2. REIT 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 REIT, enforceable against REIT 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. REIT 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 REIT to perform its obligations under this Agreement or to materially and adversely affect the financial condition of REIT. 5. No litigation is pending or, to REIT's knowledge, threatened against REIT that, if determined adversely to REIT, would prohibit REIT from entering into this Agreement or that is likely to adversely affect the ability of REIT to perform its obligations under this Agreement or to materially and adversely affect the financial condition of REIT. 6. REIT 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 REIT Loans by REIT or the consummation of any other transactions contemplated hereby. B. REIT represents and warrants to, and covenants with, Purchaser with respect to each REIT Loan, that as of the date of each initial REIT Loan Schedule and shall be deemed to restate on the Closing Date: 1. The information concerning each REIT Loan set forth on each schedule attached hereto is true and correct as of the date indicated thereon. All information in the REIT 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. 7 2. All of the REIT Loan Documents and all signatures therein are genuine and represent the legal, valid and binding obligation of the Obligor to REIT, enforceable against each Obligor in accordance with their terms 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 REIT 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 REIT, has any Equipment, Improvement or Real Property Interest been subleased since the origination of the REIT Loan, in whole or in part. 3. Each of the REIT Loans is free and clear of all Encumbrances and, to REIT's knowledge, the related Collateral is free and clear of all Encumbrances. REIT 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 REIT Loan. REIT is the sole owner and holder of such REIT Loan and has the full right, power and authority with respect to such REIT Loan. REIT 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. REIT is the original payee of the note representing each REIT Loan, except for REIT Loans originated by the National Bank of Greece which shall be endorsed by the National Bank of Greece to REIT prior to closing. With respect to each of the REIT 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 REIT Loan Documents, constitute legal, valid and binding assignments of all such REIT Loan Documents from REIT and legally and validly conveys all right, title and interest of REIT in and to such REIT Loans. No broker or other individual or entity is entitled to any unpaid commission or other compensation with respect to any REIT Loan. 4. Each Guarantee is genuine and constitutes the legal, valid and binding obligation of the guarantor thereunder, enforceable in accordance with its terms except as such enforcement may be limited by fraudulent conveyance, moratorium, 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 notice to or consent of any guarantor under any Guarantee is required to consummate the transactions contemplated herein or, except as may be required by applicable law, to proceed against the Collateral or the guarantor in an event of default. 8 5. REIT has delivered to Purchaser all of the REIT Loan Files in respect of each REIT Loan or will do so at the Closing. REIT has custody of all REIT Loan Files. Except with respect to the Notes for which REIT delivers a Lost Note Affidavit and Indemnity as reasonably acceptable to Purchaser, each Note delivered to Purchaser is the only original of such Note. The REIT Loan Documents with respect to each REIT Loan are the only documents executed by REIT (or, if the REIT Loan was assigned to REIT, by ABNY, the originator thereof) and the Obligor with respect to such REIT Loan and the related Collateral. The entire agreement between REIT and each Obligor (whether originated by REIT or a third party) is contained in the REIT Loan Documents and there are no warranties, agreements or options not set forth therein. Other than the REIT Loan Documents, there are no agreements with respect to the Collateral between REIT and any Obligor. 6. No Obligor has asserted in writing to REIT any defense, right or rescission, counterclaim or set off to its obligations with respect to any REIT Loan. Neither REIT nor any of it agents, employees or representatives has made any misrepresentations to any Obligor. 7. Except as set forth in Schedule III, to the knowledge of REIT, there are no delinquent taxes, ground rents, water charges, sewer rents, assessments or other outstanding charges payable to a Governmental Entity affecting any Collateral securing any Mortgage. 8. Except as set forth in Schedule IV, no Hazardous Substances have been disposed of or identified on, under or at any Real Property Interest and REIT has not received any assertion in writing from any person that any of such events has occurred with respect to any Equipment. There is no remediation in progress on any Real Property Interest and REIT has not received any assertion in writing from any person that any of such events has occurred with respect to any Equipment, nor is there any remediation disclosed or identified in any environmental report or analysis performed in connection with any Real Property Interest or is necessary to comply with any Environmental Law and REIT has not received any assertion in writing from any person that any of such events has occurred with respect to any Equipment. REIT has never acquired title to any Collateral for the REIT Loans, by virtue of realizing upon its security interest thereon, by virtue of foreclosure or deed-in-lieu of foreclosure, or otherwise. 9. Each REIT Loan constitutes and arose out of a bona fide business transaction entered into in the ordinary course of REIT's business. 10. All principal, interest and any other amounts due with respect to each REIT Loan are payable in United States dollars in regularly scheduled installments. 9 11. The Interest Rate on each of the REIT Loans complies with, or is exempt from, all applicable federal and state laws, regulations and other requirements pertaining to usury. 12. All escrow deposits and impounds relating to any Mortgage are under the sole control of REIT and all escrow deposits or impounds relating to any Mortgage required to be deposited with REIT by any Obligor have been deposited with REIT. 13. All mortgage recording taxes and recording and filing fees relating to the origination of the REIT Loans have been paid. 14. Except as set forth on Schedule V (setting forth the list of revolving REIT Loans and approved but not yet fully funded REIT Loans, including construction REIT Loans), the proceeds of each REIT Loan have been fully disbursed, and there is no requirement for future advances with respect thereto. Any and all requirements as to completion of any on-site or off-site improvement and as to disbursements of any escrow funds therefore that were to have been complied with have been complied with, and all costs, fees and expenses incurred in making or closing such REIT Loan (including, without limitation, recording and filing fees) have been paid. 15. Except as set forth in Schedule VI, REIT has not received notification from any Person that a Governmental Entity has asserted that any Collateral is in non-compliance with any laws or regulations, or is being used, operated or occupied unlawfully. 16. REIT has, with respect to each Mortgage in respect of a REIT Loan, a valid and enforceable American Land Title Association ("ALTA") (or state equivalent where ALTA is not available) lender's policy of title insurance which (a) has been issued by and is a binding obligation of a title insurer qualified to do business in the jurisdiction where the related Real Property Interest is located in connection with such Mortgage in an amount not less than the original principal amount of the REIT Loan(s) secured by such Mortgage, (b) is presently in full force and effect, (c) with respect to which all premiums have been paid in full and (d) insures REIT, and its successors and assigns, that the Mortgage relating thereto is a valid first lien on the related Real Property Interest therein described and that the related Real Property Interest is otherwise free and clear of all encumbrances and liens having priority over the lien of the Mortgage, subject only to Permitted Encumbrances (each such policy a "Title Policy"). Each Title Policy is assignable without the consent of or any notification to the insurer. No claims have been made by REIT under such policy and no Person claiming through REIT has done, by act or omission, and REIT has no knowledge of any matter, that would impair or diminish the coverage of such policy. 10 17. There is not any reason Purchaser will not be able to obtain an endorsement of the Title Policies in Purchaser's name. 18. The information furnished to Purchaser by REIT in connection with Purchaser's investigation of each REIT Loan is true and correct in all respects and does not omit any information necessary to make the statements contained therein not misleading. 19. Except as set forth in Schedule VII, there is no action, suit, legal or arbitration proceeding or administrative proceeding or investigation, including, without limitation, any bankruptcy or insolvency proceeding, any receivership proceeding, any foreclosure proceeding or any eminent domain proceeding, pending, or to REIT's knowledge, threatened, against or affecting any REIT Loan, REIT Loan Document, Obligor or Collateral (including, without limitation, any litigation commenced by or against the REIT). 20. Each REIT Loan has been originated, documented and serviced in compliance with all applicable laws and regulations in all material respects. REIT has not received any written notice of violation of any law or regulation relating to any of the REIT Loans or the ownership or operation thereof. Any and all other requirements of any federal, state or local laws applicable to the origination and sale of such REIT Loan have been complied with. No Obligor has any right of rescission or usury defense with respect to any related REIT Loan, and there are no circumstances with respect to any REIT Loan which could reasonably serve as the basis for any claim of set-off, counterclaim or defense by any Obligor. 21. REIT is not subject to any judgment, writ, decree, injunction or order of any federal, foreign, state or local court or Governmental Entity relating to the acquisition, collection, administration or enforcement of any REIT Loan or the foreclosure, acquisition or disposition of any Collateral or, in each case, any transactions or activities incidental thereto. 22. The transfer and assignment of the REIT Loans by REIT pursuant to this Agreement (i) does not constitute a sale of all or substantially all of REIT's assets and (ii) is not subject to the bulk transfer, bulk sales or any similar statutory provisions in effect in any applicable jurisdiction. 23. REIT has administered and serviced each REIT Loan in the ordinary course of its business, consistent with past practices, and has not (a) amended, modified, altered, satisfied, impaired, cancelled, rescinded or waived any provision of any REIT Loan Documents, or extended, renewed, supplemented, reduced, subordinated, or terminated the term of, or anticipated the Payments under or accepted the surrender of, any REIT Loan, (b) written off any REIT Loan, (c) commenced or initiated any lawsuit, action or proceeding with respect to any REIT Loan, (d) released any Obligor under any REIT Loan or (e) released, taken possession of, or caused any other Person to take possession of, any Collateral. 11 24. During the period from the date of this Agreement to the Effective Time, except as expressly contemplated or permitted by this Agreement or the P&A Agreement, REIT shall not, without the prior written consent of the Purchaser, which consent shall not be unreasonably withheld or delayed: (i) disburse any of the REIT Loans to any individual, corporation or other entity except in the ordinary course of business consistent with past practice, pursuant to contacts or agreements in force since the date of this Agreement; (ii) take any action that is intended or may reasonably be expected to result in any of its representation and warranties and covenants set forth in this Agreement being or becoming untrue in any materially respect at any time prior to the Effective Time or any of the conditions to the purchase of the REIT Loans not being satisfied or in violation of any of the provisions of this Agreement, except in every case as may be required by applicable law; (iii) foreclose on or take a deed or title to any commercial real estate without first conducting a Phase One environmental assessment of the property or foreclose on any commercial real estate if such environmental assessment indicates the presence of Hazardous Materials in amounts which, if such foreclosure were to occur, would be material; or (iv) authorize or agree to make any commitments to actions prohibited by this Section. 25. To REIT's knowledge, with respect to the Obligors, (i) to the extent applicable to the REIT, the REIT is not operating in violation in any material respect of the federal Bank Secrecy Act, as amended, and its implementing regulations (31 C.F.R. Part 103), the USA Patriot Act of 2001, Public Law 107-56 (the "USA Patriot Act"), and the regulations promulgated thereunder, or any order issued with respect to an anti-money laundering by the U.S. Department of Treasury's Office of Foreign Assets Control, and (ii) to the extent applicable to the REIT, the REIT is in satisfactory compliance in all material respects with the applicable privacy of customer information requirements contained in any federal and state privacy laws and regulations, including, without limitation, in Title V of the Gramm-Leach-Bliley Act of 1999 and regulations promulgated thereunder. 26. During the period from the date of this Agreement to the Effective Time, except as expressly contemplated or permitted by this Agreement, the REIT shall not, without the prior written consent of the Purchaser, which consent shall not be unreasonably withheld or delayed: take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time or in any of the conditions of the purchase of the REIT Loans set forth in this Agreement not being satisfied or in a violation of any provisions of this Agreement, or any necessary rules of any governmental authority. 12 VII. REPURCHASE. A. It is understood and agreed that the (A) representations, warranties and covenants set forth in Section VI.A. and VI.B. (1), (2), (3), and (4), shall survive for a period of three (3) years following the Closing Date and (B) the remaining representations warranties and covenants set forth in Section VI.B shall survive for a period of two (2) years following the Closing Date. In the event of REIT's breach of a representation, warranty or covenant set forth in Section VI hereof, which breach materially and adversely affects the value of a REIT Loan or Purchaser's liability with respect to such REIT Loan (a "Material Breach"), REIT shall, at Purchaser's option, repurchase such REIT Loan at a repurchase price (the "Repurchase Price") equal to an amount equal to (a) the Purchase Price paid by Purchaser for such REIT Loan, together with all accrued and unpaid interest on such REIT Loan at the related Interest Rate or default rate (if applicable) to but not including the date of repurchase, minus (b) all payments of principal received by, or on behalf of, Purchaser in connection with such REIT Loan. Purchaser shall promptly notify REIT of a Material Breach, with such notice to be given in writing not more than thirty (30) days after Purchaser gains knowledge of such Material Breach (the "Breach Notice"). Any repurchase of a REIT Loan or REIT Loans pursuant to the foregoing provisions of this Section VII shall occur on a date designated by Purchaser (which in any event shall not be later than thirty (30) days following delivery of the Breach Notice) and shall be accomplished by wire transfer of immediately available federal funds on the repurchase date to an account designated by Purchaser. REIT and Purchaser acknowledge that time is of the essence with respect to the timing of such notice and repurchase date. Purchaser shall release its interest in the REIT Loan promptly upon its receipt of the Repurchase Price and shall immediately execute all transfer and assignment documents, in each case without recourse, representation or warranty of any kind, necessary to effect the reconveyance of such REIT Loan to REIT, which documents shall be prepared by REIT at its expense and shall be reasonably acceptable to Purchaser. Notwithstanding the fact that a representation, warranty or covenant contained in Section VI hereof may be limited to REIT's knowledge, such limitation shall not relieve the REIT of its repurchase obligation under this Section VII. Except as described below, if Purchaser renews a REIT Loan or consents to a material modification of the terms of the REIT Loan or the related Collateral for such REIT Loan (other than a renewal or modification approved by REIT prior to the Closing Date), the REIT thereafter will have no liability or obligation to Purchaser to pay the Repurchase Price with respect to any Material Breach (other than a Material Breach arising due to a breach of Section VI.B (8) or (23)); provided, that REIT shall cooperate in all reasonable respects and in a timely manner with Purchaser to cure such Material Breach. However, notwithstanding the foregoing, the parties acknowledge that for the purposes of this Section VII: any renewal of a REIT Loan within six months following the Closing Date shall not constitute a renewal of the REIT Loan, provided (i) the amount of the REIT Loan is not increased and (ii) there is no modification of the terms of the REIT Loan or the related Collateral for such REIT Loan. A modification or amendment solely limited to a rate adjustment shall not constitute a REIT Loan Renewal. B. Except as provided in Section XII hereof, the obligations of REIT to repurchase any REIT Loan as contemplated by Section VII.A hereof, constitutes the exclusive remedy of Purchaser with respect to any breach of a representation, warranty or covenant set forth in Section VI.B hereof. If REIT 13 repurchases any REIT Loan pursuant to this Section VII, Purchaser, following receipt by Purchaser of the Repurchase Price therefore, promptly will deliver or cause to be delivered to REIT, all REIT Loan Documents with respect to such REIT Loan endorsed (without recourse and without representation or warranty of any kind) and assigned to REIT and all REIT Loan Documents. Purchaser agrees to pay to REIT, within two (2) Business Days after receipt thereof, any REIT Loan payments received by Purchaser after the repurchase date. VIII. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER. Purchaser represents and warrants to, and covenants with, REIT as of the date of this Agreement, and shall be deemed to restate as of the Closing Date, as follows: A. The execution and delivery of this Agreement by Purchaser, and the performance and compliance with the terms of this Agreement by Purchaser, will not violate Purchaser'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 Purchaser is a party or by which it or its assets are bound. B. Purchaser 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. C. Assuming due authorization, execution and delivery by REIT, this Agreement constitutes a valid, legal and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium 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. D. Purchaser 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 materially and adversely affect either the ability of Purchaser to perform its obligations under this Agreement or the financial condition of Purchaser. E. No litigation is pending or, to Purchaser's knowledge, threatened against Purchaser that, if determined adversely to Purchaser, would prohibit Purchaser from entering into this Agreement or that is likely to materially and adversely affect either the ability of Purchaser to perform its obligations under this Agreement or the financial condition of Purchaser. F. Purchaser has not dealt with any broker, investment banker, agent or that may be entitled to any commission or compensation in connection with the purchase of the REIT Loans by Purchaser or the consummation of any other transactions contemplated hereby. 14 G. Purchaser is an "accredited" investor as that term is defined in Rule 501 of Regulation D under the Securities Act of 1933, as amended (the "Securities Act"). H. Purchaser acknowledges that it has been or, pursuant to the terms of this Agreement, will be given the opportunity to review, the REIT Loan Files and the information set forth in Schedule VIII and that such information constitutes all information requested except for that which REIT stated it did not have. Purchase acknowledges that it has made its decision to purchase the REIT Loans based on its independent review of such information and is not relying on any representation or warranty, either express or implied, made by REIT other than as expressly set forth in this Agreement. I. During the period from the date of this Agreement to the Effective Time, except as expressly contemplated or permitted by this Agreement, the Purchaser shall not, without the prior written consent of the REIT, which consent shall not be unreasonably withheld or delayed: take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time or in any of the conditions of the purchase of the REIT Loans set forth in this Agreement not being satisfied or in a violation of any provisions of this Agreement, or any necessary rules of any governmental authority. IX. CLOSING DOCUMENTS. The closing documents to be delivered on the Closing Date (the "Closing Documents") shall consist of each of the following: A. the original executed Notes related to the REIT Loans, each properly endorsed (without recourse, except as provided in this Agreement) to the order of "The First National Bank of Ipswich and its successors and assigns." B. REIT shall deliver the remainder of the REIT Loan Files in the possession of REIT and ABNY to Purchaser no later than five (5) Business Days from the Closing Date. C. REIT shall also deliver to Purchaser no later than five (5) Business Days from the Closing Date: 1. an original executed assignment of the Mortgage or an executed assignment of a Security Agreement in favor of "The First National Bank of Ipswich and its successors and assigns" and, in the case of a Mortgage assignment, in recordable form; 2. an original executed omnibus assignment of any related REIT Loan Documents in favor of "The First National Bank of Ipswich and its successors and assigns" and, if applicable, an original executed assignment of any related Assignment of Leases (if such item is a document separate from the Mortgage), in favor of "The First National Bank of Ipswich and its successors and assigns" in recordable form; 15 3. executed original UCC financing statements on Form UCC-1 together with the executed original UCC financing statements on Form UCC-2 or UCC-3, as appropriate, prepared by Purchaser in favor of "The First National Bank of Ipswich and its successors and assigns;" and 4. an executed bill of sale in a form reasonably acceptable to Purchaser for the REIT Loans. X. COSTS. Each party shall pay its own costs and expenses in connection with this Agreement and the transactions contemplated hereby, including, but not by way of limitation, all regulatory fees, attorneys' fees, accounting fees and other expenses. XI. POST-CLOSING MATTERS. A. Servicing. REIT shall transfer the servicing rights with respect to the REIT Loans at the Closing. B. REIT Loan Payments. REIT shall forward to Purchaser all REIT Loan payments received by REIT after the Closing Date within two (2) Business Days of their receipt. C. Notices to Insurers. As to each title, hazard and other insurance policy assigned to Purchaser, Purchaser is responsible for notifying the insurer or other appropriate person after the Closing Date regarding the assignment of REIT's interest to Purchaser. REIT will have no obligation to Purchaser with respect to the giving of such notice, provided, however, REIT agrees to join with Purchaser in such communications if Purchaser so requests and shall cooperate with Purchaser in all reasonable respects in order to effectuate such notice. D. Notices to Borrowers. Purchaser is responsible for notifying each borrower of a REIT Loan after the Closing Date regarding the assignment of REIT's interest in such REIT Loan to Purchaser. REIT will have no obligation to Purchaser with respect to the giving of such notice, provided, however, REIT agrees to join with Purchaser in such communications if Purchaser so requests and shall cooperate with Purchaser in all reasonable respects in order to effectuate such notice. XII. INDEMNIFICATION. A. REIT's Indemnification. Notwithstanding any other provision of this Agreement to the contrary, REIT agrees to defend, indemnify and hold Purchaser harmless from and against any loss, fee, cost, expense, damage, liability or obligation which Purchaser may receive, suffer, or incur, including reasonable attorney's fees ("Losses"), in connection with any claim made or action instituted against Purchaser arising or claimed to have arisen from (a) REIT's actions or inactions prior to the Effective Time with respect to the REIT Loans or the Collateral or (b) the breach by REIT of any representation, warranty or covenant made by REIT contained in this Agreement; provided, that Purchaser notify REIT of any such claim or action within fifteen (15) Business Days after 16 Purchaser has received actual notice that the same has been made or instituted, as the case may be, but failure to so notify REIT shall not relieve REIT from any liability hereunder to the extent it is not materially prejudiced as a result thereof, and in any event shall not relieve it from any liability which it may have otherwise than on account of this Agreement. REIT may assume the defense of any such claim or action by attorneys of REIT's own choosing, and reasonably acceptable to Purchaser, at its expense but REIT may not settle such claim or action without Purchaser's prior written consent, which will not be unreasonably delayed or withheld. B. Purchaser's Indemnification. Notwithstanding any other provision of this Agreement to the contrary, Purchaser agrees to defend, indemnify and hold REIT harmless from and against any of its Losses in connection with any claim made or action instituted against REIT relating to or arising out of or claimed to have arisen from Purchaser's actions or inactions after the Effective Time with respect to the REIT Loans or the breach by Purchaser of any representation, warranty or covenant made by Purchaser contained in this Agreement; provided, that REIT notify Purchaser of any such claim or action within fifteen (15) Business Days after REIT has received actual notice that the same has been made or instituted, as the case may be, but failure to so notify Purchaser shall not relieve Purchaser from any liability hereunder to the extent it is not materially prejudiced as a result thereof, and in any event shall not relieve it from any liability which it may have otherwise than on account of this Agreement. Purchaser may assume the defense of any such claim or action by attorneys of Purchaser's own choosing, and reasonably acceptable to REIT, at its expense but Purchaser may not settle such claim or action without REIT's prior written consent, which will not be unreasonably delayed or withheld. XIII. CONFIDENTIALITY. Purchaser and REIT agree to maintain all Confidential Information in accordance with the terms of the P&A Agreement. The undertakings with regard to confidentiality shall survive termination of this Agreement and the Closing. It is understood that the Agreement and the Schedules attached hereto shall be filed with various federal and state banking regulators, including but not limited to the Office of the Comptroller of the Currency. XIV. TERMINATION. This Agreement shall terminate in the event that the P&A Agreement is terminated pursuant to Section 9.1 thereof. In the event of termination of this Agreement, this Agreement shall forthwith become void and there shall be no liability on the part of any of the parties hereto, except for Section X of this Agreement which shall remain in full force and effect and except that nothing herein shall release any party from liability for a breach of this Agreement prior to termination hereof. XV. NOTICES. Any notice or other communication required or permitted hereunder shall be deemed given if delivered in person, by courier or if sent by registered or certified mail, postage prepaid, return receipt requested or by express mail, overnight delivery or facsimile transmission (followed by hard copy) addressed as follows: 17 (a) If to Purchaser: The First National Bank of Ipswich 31 Market Street Ipswich, MA 01938 Attention:Donald P. Gill President and Chief Executive Officer Telephone Number: (978) 356-3700 Facsimile Number: (978) 356-5937 With copies to: Craig and Macauley Professional Corporation 600 Atlantic Avenue Boston, MA 02110 Attention: David F. Hannon, Esq. Telephone Number: (617) 367-9500 Facsimile Number: (617) 742-1788 (b) If to REIT: William Aukamp, Esq. Harvey, Pennigton, Herting & Renneisen, Ltd. Eleven Penn Center, 29th Floor 1835 Market Street Philadelphia, PA 19103-2989 Telephone Number: (212) 563-4470 Facsimile Number: (215) 568-1044 With copies to: Matthew Dyckman, Esq. Thacher Proffitt & Wood LLP 1700 Pennsylvania Avenue, NW Washington, DC 20006 Telephone Number: (202) 626-5647 Facsimile: (202) 626-1930 Any such notice or communication if mailed shall be deemed to have been given as of five (5) Business Days after the date mailed or, if delivered in person, shall be deemed given on the date so delivered. Either party may specify a different address by giving notice to that effect to the other party. 18 XVI. SURVIVAL OF AGREEMENT. The provisions of this Agreement shall survive the Closing Date and for so long thereafter as is necessary to permit the parties to exercise their respective rights or perform their respective obligations hereunder. XVII. SEVERABILITY. Any part, provision, representation or warranty of this Agreement that is prohibited or which is held to be void or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Any part, provision, representation or warranty of this Agreement which is prohibited or unenforceable or is held to be void or unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction, to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction as to any REIT Loan shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders void or unenforceable any provision hereof. If the invalidity of any part, provision, representation or warranty of this Agreement shall deprive any party of the economic benefit intended to be conferred by this Agreement, the parties shall negotiate, in good faith, to develop a structure that, as nearly as possible, has the same economic effect as does this Agreement without regard to such invalidity. XVIII. COUNTERPARTS. This Agreement may be executed simultaneously in any number of counterparts. Each counterpart shall be deemed to be an original, and all such counterparts shall constitute one and the same instrument. XIX. GOVERNING LAW. This Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, to the extent that Federal law does not control. XX. SUCCESSORS AND ASSIGNS. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective transferees, successors and assigns, but this Agreement may not be assigned by either party without the written consent of the other. This Agreement is personal to the parties hereto and their successors and permitted assigns and is not intended for the benefit of and shall not be relied upon by any other person and no such person (or any other person acting on such person's behalf) shall be entitled to the benefit of or to enforce this Agreement; provided, that this Agreement may be relied upon by any governmental or regulatory agency whose approval or 19 consent is a condition to the consummation by either party of the transactions contemplated by this Agreement. The parties agree that if, prior to the Closing Date, either REIT or Purchaser is party to a merger or acquisition, the transactions contemplated by this Agreement shall be consummated with the surviving entity of such merger or acquisition. XXI. FURTHER AGREEMENTS. REIT and Purchaser each agree to execute and deliver to the other such reasonable and appropriate additional documents, instruments or agreements, at no material cost, as may be necessary or appropriate to effectuate the purposes of this Agreement. XXII. PUBLIC ANNOUNCEMENTS. Neither Purchaser nor REIT shall cause to be made any advertisement, solicitation or public announcement regarding this Agreement or the transactions contemplated hereby between the date hereof and the Effective Time without the prior approval of the other party, except as may otherwise be required by law in which case the other party shall be provided a reasonable opportunity to review and comment upon such advertisement, solicitation or public announcement prior to its dissemination. Purchaser shall, between the date hereof and the Effective Time, at Purchaser's expense and with the consent of REIT, be permitted to communicate with the customers of the Branch (as defined in the P&A Agreement) concerning the transactions provided for herein. Any consent or approval required by this Section 22 shall not be unreasonably withheld. XXIII. AMENDMENTS. Neither this Agreement, nor any provision hereof may be changed, waived, discharged or terminated orally, but only by a written instrument signed by both REIT and Purchaser. XXIV. INTERPRETATION. For all purposes of this Agreement, initially capitalized terms used herein have the meanings ascribed hereto in this Agreement, except as otherwise provided in this Agreement. XXV. INTENTION OF THE PARTIES. It is the intention of the parties that Purchaser is purchasing, and REIT is selling, the REIT Loans and not a debt instrument of REIT or any other security. Accordingly, each party intends to treat the transaction for federal income tax purposes, and each transaction shall be reflected on REIT's books and records, tax returns, balance sheet and other financial statements, as a sale by REIT, and a purchase by Purchaser, of the REIT Loans. XXVI. MODIFICATION. No supplement, modification or amendment of this Agreement shall be valid unless executed in writing by both parties hereto. 20 XXVII. WAIVERS. Either party may waive any one or more conditions to the performance of its obligations (other than required regulatory approvals) or breaches of, or defaults under, this Agreement by the other party and proceed to the Closing of the transactions contemplated hereby without prejudice to any other rights or remedies to which such party may otherwise be entitled. No waiver of any provision of, breach of or default under this Agreement shall be considered binding unless executed in writing by the party granting such waiver. No waiver of any provision of this Agreement shall be deemed to constitute a waiver of any other provision hereof or any subsequent breach or default (whether or not similar) nor shall any such waiver constitute a continuing waiver. XXVIII. SCHEDULES AND HEADINGS. All Schedules referred to herein shall constitute a part of this Agreement. Section, paragraph and subparagraph headings are not to be considered part of this Agreement, are for convenience and reference only, and are not to be deemed to be full or accurate descriptions of the contents of any paragraph or subparagraph. 21 IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the day and year first above written. OMEGA COMMERCIAL MORTGAGE CORP. THE FIRST NATIONAL BANK OF IPSWICH By: /s/ William M. Aukamp By: /s/ Donald P. Gill ------------------------- ---------------------- William M. Aukamp Donald P. Gill Executive Vice President and President and Chief Executive Secretary Officer