MASTER MORTGAGE LOAN PURCHASE AGREEMENT
This Master Mortgage Loan Purchase Agreement is made and entered into as of
the 31st day of March, 1998 by and among Atlantic Bank and Trust Company
(hereinafter referred to as "Seller"), a Massachusetts state chartered bank, CHB
Realty Corp., a Massachusetts corporation and wholly-owned subsidiary of the
Seller ("CHB"), and Atlantic Preferred Capital Corporation, a Massachusetts
corporation and indirect operating subsidiary of the Seller and direct
subsidiary of CHB (hereinafter referred to as "Purchaser").
WITNESSETH:
WHEREAS, Seller is the holder of certain mortgage loans (each, a "Loan,"
collectively, the "Loans"); and
WHEREAS, Seller desires to sell to Purchaser and Purchaser desires to
purchase from Seller from time to time the Loans;
WHEREAS, Seller also desires to contribute Loans to the capital of the
Purchaser from time to time through a capital contribution to CHB and a
subsequent capital contribution from CHB to the Purchaser; and
WHEREAS, Seller, CHB and Purchaser believe that it is in their mutual best
interests to enter into this Agreement,
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained in this Agreement, and other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, Seller and Purchaser agree as follows:
1. Purchases and Sales from Time to Time; Contributions.
(a) Pursuant to the terms and conditions of this Agreement, Seller
agrees to sell to Purchaser from time to time, and Purchaser agrees to purchase
from Seller from time to time, mutually agreed upon Loans at a purchase price
with respect to each Loan calculated as provided in Section 5 herein.
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(b) Pursuant to the terms and conditions of this Agreement, Seller
agrees from time to time to contribute to the capital of CHB and CHB agrees
simultaneously to contribute to the capital of Purchaser mutually agreed upon
Loans, and Purchaser agrees to accept such capital contribution as provided in
Section 5 herein.
(c) As of the Transfer Date (as defined in Section 5 herein) the
beneficial ownership of any Loan sold or contributed by Seller to Purchaser
shall be vested in and assigned to Purchaser in accordance with the provisions
of Section 5 herein.
2. Representations and Warranties of Seller. With respect to each Loan sold
to Purchaser, except as otherwise disclosed on Schedule A of Exhibit A hereto,
Seller represents and warrants to Purchaser that as of the Sale Date:
(a) The Loan includes a valid and duly executed promissory note fully
secured by a duly executed and recorded mortgage on real property (each a
"Mortgage," collectively, the "Mortgages"), each of which, to the knowledge of
Seller, has been duly authorized by all necessary actions on the part of the
parties thereto, and each of which, to the knowledge of Seller, is the legal,
valid and binding obligation of each party thereto, enforceable against the
parties in accordance with their respective terms subject to the provisions of
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights generally from time to time in effect, and
equitable principles relating to the granting of specific enforcement and other
equitable remedies as a matter of judicial discretion, to which no other party
has any rights, title or interests;
(b) That Seller conveys to Purchaser good and marketable title to the
Loans;
(c) That, to the knowledge of Seller, no defense, offset, or
counterclaim thereto exists against Seller; and that no agreement has been made
under which any mortgagors may claim any deduction, or discount, with respect to
the Loans;
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(d) That the Loan is not subject to any assignment, claim, lien,
security interest or other encumbrance, and, the Loan has not been sold,
assigned, transferred or pledged; and that no party other than Purchaser will
have rights, title or interests in the Loan;
(e) That Seller will take no action that would impede or interfere
with the Purchaser's rights, title and interest in the Loan regardless of the
fact that (except as otherwise required by Purchaser) the public records may
continue to reflect the Seller as holding legal title to the Loan;
(f) That Seller and officer(s) signing this Agreement on behalf of
Seller have all the requisite power and authority to enter this Agreement and
sell, transfer and assign the Loan and to execute all documents associated with
all transactions covered by this Agreement;
(g) In entering into and carrying out this Agreement, Seller is in
compliance with applicable federal, state or local laws, statutes, ordinances,
and any rule, regulation or order issued thereunder;
(h) That there has been no misrepresentation or fraud by any of
borrower, Seller, or any third party with respect to the loan;
(i) That the schedule of Loans contains complete and accurate data;
and
(j) That the Loan and the servicing of the Loan is in compliance with
every applicable federal, state or local law, statute, ordinance, and every
rule, regulation or order issued thereunder.
3. Representations and Warranties of Purchaser.
(a) Purchaser has all requisite power and authority to enter into this
Agreement and purchase or contribute, on the one hand, and receive, on the other
hand, the Loans and to execute all documents associated with the transactions
covered by this Agreement;
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(b) In entering into and carrying out this Agreement, Purchaser is in
compliance with applicable federal, state, or local laws, statutes, ordinances,
and any rule, regulation or order issued thereunder; and
4. Notice of Intent to Purchase. Upon Seller's offering of a Loan to
Purchaser, Purchaser shall notify Seller either orally or in writing if it
intends to purchase such Loan. Seller acknowledges and agrees that the
determination of whether to purchase any Loan is at the complete discretion of
Purchaser in accordance with Purchaser's requirements from time to time, and
Seller agrees to be bound by all such decisions with no further right, remedy or
appeal from such decision.
5. Conditions of Purchase and Sale or Contribution of Loans
(a) The Purchaser and Seller agree that the purchase price of Loans
purchased by the Purchaser hereunder shall be determined by amortizing the
outstanding balance of the Loan over the remaining term of the Loan using the
interest rate as of the date of loan commitment by prospective borrowers of
Seller (the "Purchase Price"). On a date mutually agreed to by both Purchaser
and Seller (the "Transfer Date"), (i) in the case of a purchase of Loans, Seller
shall transfer to Purchaser all of Seller's right, title and interest in the
Loan or Loans Purchaser has determined to purchase, and Purchaser shall transfer
funds equal to the Purchase Price of such Loan or Loans to an account of Seller
or Seller's designee or (ii) in the case of a capital contribution of Loans,
Seller shall transfer to Purchaser, all of Seller's right,
title and interest in the Loan or Loans Seller has determined to contribute and
Purchaser has agreed to accept.
(b) On the Transfer Date, Purchaser and Seller shall execute a
Mortgage Loan Assignment Agreement substantially in the form of Exhibit A hereto
which shall identify the Loan or Loans being sold or contributed by
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Seller to Purchaser and, in the case of purchased Loans, the purchase price
being paid to Seller by Purchaser with respect to the Loan or Loans. In the case
of contributed Loans, a Mortgage Loan Assignment Agreement between Seller and
Purchaser shall be deemed to constitute a capital contribution of Loans by
Seller to CHB and a simultaneous capital contribution of such Loans from CHB to
Purchaser.
(c) Within three business days after the Transfer Date, Seller shall
deliver to Purchaser or to Purchaser's designee a completed Loan File (as
hereinafter defined) for such Loan. However, Seller and Purchaser agree that
Seller may retain such Loan File in the event that Seller is to act as servicer
with respect to the Loan.
(d) For purposes of this Agreement, a Loan File shall include all loan
documentation that would be required by the Federal National Mortgage
Association, unless Purchaser and Seller shall otherwise mutually agree.
(e) In the event that Purchaser shall designate Seller to service the
Loans, the servicing shall be in accordance with the Master Service Agreement
entered into between the parties. Mortgage assignments from Seller to Purchaser
will be prepared but not recorded unless required at a future time.
6. Right to Require Repurchase. Purchaser may require Seller to repurchase
a Loan purchased or contributed pursuant hereto if any representation or
warranty with respect to such Loan is either untrue or breached in any material
respect. Purchaser shall notify Seller of the requirement to repurchase, which
notice shall identify the Loan(s) and the principal balance of each Loan plus
any accrued and unpaid interest thereon, as of the repurchase date (the
"Repurchase Price") which date shall be within thirty (30) days of the date the
notice is delivered to Seller (the "Repurchase Date"). Seller shall pay to
Purchaser the Repurchase Price in cash or immediately available funds, or with
the permission of Purchaser through the transfer of additional loans with a
principal balance as of the Repurchase Date equal to the Repurchase Price (the
"Additional Loans"). As of the date such Additional Loans
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are transferred to Purchaser, such Additional Loans shall be subject to the
terms and provisions of this Agreement, and the representations and warranties
of Seller contained in this Agreement shall be true with respect to such
Additional Loans. Nothing herein shall limit or waive the rights and remedies of
Purchaser whether against Seller or any party to the Loans or to the Additional
Loans.
7. Discharge and Release of Mortgage. Upon request by Purchaser, Seller
agrees to execute a validly executed and acknowledged Discharge of Mortgage
("Discharge") in a form which shall entitle it to be recorded in the appropriate
Registry of Deeds or Registry District of the Land Court.
8. Termination. Seller acknowledges that its approval for participation in
Purchaser's loan purchase or contribution program shall continue only for so
long as Purchaser in its sole discretion shall determine to participate therein.
Purchaser may, for cause or without cause, terminate this arrangement with
Seller at any time.
9. Indemnification
(a) Seller and CHB shall indemnify and hold Purchaser harmless from
and will reimburse Purchaser for any and all losses, damages, deficiencies,
claims, or expenses (including reasonable attorneys' fees) from any act, error
or omission of Seller, including without limitation the breach of any
representation or warranty or covenant contained herein.
(b) Purchaser shall indemnify and hold each of Seller and CHB harmless
from and will reimburse Seller for any and all losses, damages, deficiencies,
claims, or expenses including reasonable attorneys' fees) from any act, error,
or omission of Purchaser with respect to any Loan on or after the Transfer Date.
10. Further Assurances. Seller, CHB and Purchaser will execute and deliver
such further instruments including without limitation mortgage assignments, and
do such further acts and things as may be required to carry out the intent and
purpose of this Agreement.
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11. Due Execution, Validity. Each party hereto represents and warrants to
the other party that the execution, delivery and performance by such party of
its obligations under this Agreement has been duly authorized by all necessary
action on its part; and this Agreement is the legal, valid and binding
obligation of such party, enforceable against it in accordance with its terms
subject to the provisions of bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforceability of creditor's rights generally from
time to time in effect, and equitable principles relating to the granting of
specific enforcement and other equitable remedies as a matter of judicial
discretion.
12. Binding Nature; Governing Law. This Agreement inures to the benefit of,
and will be binding upon the respective successors and permitted assigns of the
parties hereto and be governed by, and construed in accordance with, the
substantive laws of the Commonwealth of Massachusetts. This Agreement sets forth
the final and entire understanding of the parties with respect to its subject
matter, and cannot be changed, waived or terminated without the prior written
consent of the parties hereto.
13. Severability. If any part, parcel or provision of this Agreement shall
be determined by a court of competent jurisdiction to be invalid, void or
illegal, each and every other part, parcel and provision of this Agreement which
is not held to be invalid, void or illegal shall continue in full force and
effect and shall not be affected by such court determination.
14. Notices. All notices under this Agreement which are required to be in
writing shall be deemed to have been properly given if served by personal
delivery or sending same by overnight courier or by certified or registered
mail, postage prepaid, or by telecopier to the address or telecopier number set
forth below:
If to Seller and CHB: Atlantic Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No. 000-000-0000
Attn: Chief Financial Officer
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If to Purchaser:
Atlantic Preferred Capital Corporation
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No. 000-000-0000
Attn: Chief Financial Officer
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first set forth above.
ATLANTIC BANK AND TRUST
COMPANY
By: Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
CHB REALTY CORP.
By: Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: President
ATLANTIC PREFERRED CAPITAL
CORPORATION
By: Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: President
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EXHIBIT A
MORTGAGE ASSIGNMENT AGREEMENT
THIS ASSIGNMENT is made this _____ day of _____________ by and between
Atlantic Bank & Trust Company (hereinafter referred to as the "Seller"), a
Massachusetts state chartered bank, and Atlantic Preferred Capital Corporation,
a Massachusetts corporation and indirect operating subsidiary of the Seller
(hereinafter referred to as "Purchaser"), pursuant to the Master Mortgage Loan
Purchase Agreement by and between the Seller and Purchaser dated as of March 31,
1998 (the "Loan Agreement"). All capitalized terms used but not defined herein
shall have the respective meanings ascribed to them in the Loan Agreement.
As contemplated by the Loan Agreement, Seller hereby sells, transfers, and
assigns to Purchaser all of its right, title and interest to each Loan, (as such
term is defined in the Loan Agreement) identified on Schedule A attached hereto
including without limitation, the note, mortgage, and complete loan files with
respect to each Loan [in exchange for the Purchase Price of each Loan] as set
forth on such Schedule A. Seller and Purchaser agree that the transfer of the
Loans set forth on Schedule A from Seller to Purchaser shall be in accordance
with the terms of the Loan Agreement, and, except as set forth on Schedule A,
Seller hereby represents and warrants to Purchaser that all of the
representations and warranties of Seller contained in the Loan Agreement are
true and correct as of the date set forth above [and that the Purchase Price of
each Loan set forth on Schedule A is the fair market value of the Loan as of the
Transfer Date].
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first set forth above.
ATLANTIC BANK AND TRUST COMPANY
By:
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Name:
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Title:
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ATLANTIC PREFERRED CAPITAL CORPORATION
By:
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Name:
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Title:
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