MASTER AGREEMENT OF PURCHASE AND SALE
This MASTER AGREEMENT OF PURCHASE AND SALE is made and entered into as of
the 5th day of March, 1997, by and between AmerUs Life Insurance Company, an
Iowa corporation, as buyer ("Buyer"), and AmerUs Bank, a federal savings bank,
as seller ("Seller").
WHEREAS, Seller desires to sell certain Mortgage Loans (as defined below)
from time to time; and
WHEREAS, Buyer desires to purchase loans such as the Mortgage Loans from
time to time; and
WHEREAS, it is contemplated that from time to xxxx Xxxxxx will sell to
Buyer and Buyer will purchase from Seller Mortgage Loans on the terms and
conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and obligations
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.1. DEFINED TERMS. For purposes of this Agreement, capitalized
terms shall have the meanings indicated below:
(a) "Affiliate" means, with respect to any Person, any Person which,
directly or indirectly, through one or more intermediaries,
controls, is controlled by or is under common control with the
Person specified.
(b) "Agreement" means this Master Agreement of Purchase and Sale dated
as of March 5, 1997, by and between Seller and Buyer, including all
exhibits and schedules attached hereto and referenced herein, as
the same may be amended or supplemented from time to time.
(c) "Assignment" means the assignment which has the effect of
assigning to Buyer all of Seller's interest in a Mortgage.
(d) "Book Value" means, as to any Mortgage Loan, the unpaid principal
balance owed, as shown on the books and records of Seller as of the
Cut-Off Date.
(e) "Business Day" means any calendar day of the week other than a
Saturday or Sunday, or a day on which banking institutions and/or
thrift and savings and loan institutions located in the State of
Iowa are authorized or obligated by law or executive order to be
closed.
(f) "Closing Date" means, with respect to any purchase and sale of
Mortgage Loans pursuant to this Agreement, such date as mutually
agreed upon by the parties.
(g) "Combined Loan to Value Ratio" means, with respect to any Mortgage
Loan as of any date, the percentage equivalent of the fraction,
the numerator of which is the sum of (i) outstanding principal
balance of such Mortgage Loan as of such date and (ii) the
outstanding principal balance as of the date of origination of any
mortgage loan or mortgage loans that are senior or equal in
priority to such Mortgage Loan and that are secured by the same
Mortgaged Property and the denominator of which is the value of the
related Mortgaged Property (based on appraisals made of the
Mortgaged Property at the time of origination of such Mortgage Loan
or, in the absence of an appraisal, internal calculations made by
Seller at the time of origination) as of the date of the
origination of such Mortgage Loan; provided, however, that the
financed amount of credit life premium for such Mortgage Loan shall
not be included in the numerator of such fraction.
(h) "Cut-Off Date" means the date set forth on the Settlement Statement
on which Mortgage Loans to be sold pursuant to this Agreement have
been identified on the appropriate Schedule of Assets and as of
which the Book Value of each of the Mortgage Loans is calculated.
(i) "Loan Interest Rate" with respect to each Mortgage Loan means the
annual rate at which interest accrues on such Mortgage Loan as
changed from time to time in accordance with the provisions of the
related Note and Mortgage.
(j) "Mortgage" means a security instrument creating a lien on real
property that serves as collateral for a Mortgage Loan, and any
amendments, supplements or modifications thereto. For purposes of
this definition, the security instrument may be a deed of trust, a
mortgage, a trust deed or a similar instrument creating a lien on
real property.
(k) "Mortgage Loan" means a closed-end loan evidenced by a Note,
secured by a first or second lien on Mortgaged Property, and any
and all rights, benefits, collateral, payments, recoveries,
proceeds and obligations arising therefrom or in connection
therewith, which Mortgage Loans are listed on a Schedule of Assets.
(l) "Mortgage Loan File" means all documents in the possession of
Seller pertaining to a Mortgage Loan, as described in Section 2.6.
(m) "Mortgaged Property" with respect to any Mortgage Loan means the
real property, together with improvements thereon, encumbered by
the Mortgage securing the indebtedness evidenced by the Note.
(n) "Note" means a promissory note made by an Obligor or Obligors
evidencing the indebtedness of such Obligor or Obligors under a
Mortgage Loan, and any amendments, supplements or modifications
thereto.
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(o) "Obligor" means each individual who is now or hereafter liable for
the full or partial payment or performance of any Mortgage Loan,
whether such obligation is direct, indirect, primary, secondary,
joint or several.
(p) "Permitted Exceptions" with respect to any Mortgaged Property means
(i) the lien of current real property taxes and assessments not yet
due and payable; (ii) covenants, conditions, restrictions, rights
of way, easements and other matters of public record as of the date
of recording acceptable to prudent mortgage lending institutions
generally; (iii) other matters to which like properties are
commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the related
Mortgage or the use, enjoyment, value or marketability of the
Mortgaged Property; and (iv) a valid first lien.
(q) "Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
(r) "Premium" means, with respect to a particular purchase of Mortgage
Loans pursuant to this Agreement, such amount which is set forth on
the appropriate Settlement Statement, and which shall be the
product of the Book Value of such Mortgage Loans and the Premium
Rate agreed upon by Buyer and Seller with respect to such Mortgage
Loans.
(s) "Premium Rate" means such rate as is mutually agreed upon by the
parties with respect to a particular purchase of Mortgage Loans, as
set forth in each Settlement Statement, and which shall be
expressed as a percentage of the outstanding principal balance of
the Mortgage Loans to be purchased.
(t) "Purchase Price" means the aggregate price, as set forth in each
Settlement Statement, which Buyer has agreed to pay for the
Mortgage Loans, which amount equals the Book Value of the Mortgage
Loans as of the Cut-Off Date, plus interest which has accrued but
remains unpaid up to, but not including, the Cut-Off Date, plus any
Premium.
(u) "Schedule of Assets" means a list of Mortgage Loans to be purchased
by Buyer from Seller pursuant to this Agreement, which Schedule of
Assets is attached to a Settlement Statement and is hereby
incorporated into this Agreement by reference thereto and which
shall set forth the following information concerning each Mortgage
Loan purchased by Buyer: (i) last name of Obligor(s); (ii)
Mortgaged Property street address, city and state; (iii) account
number; (iv) date account opened; (v) Book Value; (vi) accrued but
unpaid interest; (vii) date of last payment; (viii) date next due;
(ix) Loan Interest Rate; and (x) remaining term.
(v) "Settlement Statement" means a loan funding settlement statement to
be executed and delivered by Buyer and Seller upon the sale of
Mortgage Loans pursuant to this Agreement as of each Closing Date
which details, with respect to the Mortgage Loans being sold on
such Closing Date, the Cut-Off Date, the
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aggregate Book Value of the Mortage Loans, the accrued interest on
the Mortgage Loans, the Premium Rate, the Premium, the Purchase
Price and wiring instructions. A form of the Settlement Statement
is attached hereto as EXHIBIT A.
Section 1.2. CONSTRUCTION.
(a) Accounting and financial terms used in this Agreement and not
otherwise defined herein shall be construed in accordance with
generally accepted accounting definitions and principles,
consistently applied.
(b) Words used in this Agreement in the singular shall be deemed to
include the plural and vice versa, where the context so permits.
(c) The use of any gender in this Agreement shall be deemed to include
the other gender.
(d) References in this Agreement to articles, sections, subsections,
paragraphs and other subdivisions without reference to a document
are to designated articles, sections, subsections, paragraphs and
other subdivisions of this Agreement.
(e) The words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular provision.
(f) The terms "include" or "including" shall mean without limitation by
reason of enumeration.
(g) References in this Agreement to a specific statute or regulation
shall be deemed to include any successor statute or regulation.
ARTICLE II
PURCHASE OF MORTGAGE LOANS
Section 2.1. PURCHASE OF MORTGAGE LOANS. For and in consideration of the
mutual promises contained herein, Buyer hereby agrees to purchase from time to
time on each Closing Date from Seller the Mortgage Loans which are listed on the
Schedule of Assets attached to the Settlement Statement executed and delivered
by Buyer and Seller as of such Closing Date, and Seller hereby agrees to sell
such Mortgage Loans to Buyer. A separate Settlement Statement shall be executed
and delivered by Buyer and Seller each time Buyer purchases and Seller sells
Mortgage Loans pursuant to this Agreement. Each Settlement Statement is hereby
incorporated by reference into this Agreement. Each sale shall take place at
the offices of Seller, unless otherwise agreed by Seller and Buyer.
Section 2.2. PAYMENT OF PURCHASE PRICE. The Purchase Price for Mortgage
Loans to be purchased by Buyer in accordance with this Agreement shall be set
forth on the Settlement Statement executed and delivered by Buyer and Seller as
of the Closing Date for such Mortgage Loans and shall be paid by Buyer to Seller
on such Closing Date by wire transfer of immediately
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available funds in lawful money of the United States of America and against
delivery of the duly endorsed Notes and assignment of the Mortgage Loans to
Buyer in accordance with the requirements of this Agreement.
Section 2.3. DILIGENCE. Prior to each Closing Date, Buyer shall have the
right to review, with respect to the Mortgage Loans to be sold on a particular
Closing Date, the Mortgage Loan Files and the Mortgaged Property securing each
such Mortgage Loan. Buyer may reject any such Mortgage Loan that does not
conform to its underwriting assumptions or its documentation, credit or
collateral requirements. Any such unacceptable Mortgage Loan shall be deleted
from its respective Schedule of Assets before the applicable Closing Date.
Buyer shall complete its due diligence review prior to the applicable Closing
Date. Seller shall cause its officers, servicers and employees to provide such
assistance and to furnish such reasonably available information in respect of
the Mortgage Loans as Buyer may from time to time reasonably request.
Section 2.4. RECOURSE; ENDORSEMENT. All Mortgage Loans purchased by
Buyer from Seller pursuant to this Agreement shall be purchased "without
recourse." Prior to a Closing Date, Seller shall endorse to Buyer each and
every Note evidencing a Mortgage Loan to be sold on such Closing Date using the
following endorsement on the back thereof:
Pay to the order of AmerUs Life Insurance Company, without recourse.
EXECUTED this ______ day of ______________, 19__.
AMERUS BANK
By:
------------------------------------------
Its:
------------------------------------------
Section 2.5. INDIVIDUAL ASSIGNMENT OF MORTGAGES AND NOTES.
(a) With respect to each sale of Mortgage Loans under this Agreement,
upon payment by Buyer to Seller of the Purchase Price, there shall
be a direct transfer, from Seller to Buyer, of title to the Notes
and Mortgages relating to such Mortgage Loans.
(b) Seller shall execute and deliver to Buyer an Assignment with
respect to each Mortgage Loan sold to Buyer under this Agreement.
Along with the endorsement of the applicable Note, an Assignment
shall evidence the assignment by Seller to Buyer of all of the
interests of Seller, its successors and assigns, in the Mortgage
described therein.
(c) The assignment of Seller's interest in the Notes and the Seller's
interest in the Mortgages shall be accomplished on the Closing Date
for the sale of the related Mortgage Loans or within ninety (90)
days thereof. Prior to the completion of
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the assignment of Seller's respective interests in the Notes and
the Mortgages, if Buyer so requests Seller shall assign such
interests directly to a third party at the direction of Buyer.
Section 2.6. CONTENTS OF MORTGAGE LOAN FILES. Each and every Mortgage
Loan identified in a Schedule of Assets shall be accompanied by the following
documents, which shall be delivered to the Buyer on the appropriate Closing
Date; provided, however, that the material described in subsection (e) of this
Section 2.6 shall be delivered within ninety (90) days after the appropriate
Closing Date:
(a) The original Note signed by the Obligor and bearing Seller's
endorsement to Buyer.
(b) The original recorded Mortgage executed contemporaneously with the
Note.
(c) The original of any and all intervening assignments, including the
Assignment.
(d) The original credit application.
(e) All credit information in the possession of Seller concerning the
Obligor or any other Person obligated on the Mortgage Loan and all
guarantees and other agreements securing such transactions,
including all credit reports.
(f) Evidence of application for adequate flood insurance coverage, if
applicable, with respect to the Mortgaged Property, with Seller
being declared or designated as mortgagee and loss payee or an
authorization signed by the Obligor to add Seller, its successors
and/or its assigns, as mortgagee.
(g) Copies of all disclosure statements required by any federal or
state law, rule or regulation, including without limitation the
Real Estate Settlement Procedures Act and any truth-in-lending act
or similar consumer protection act, and all statements indicating
that the Obligor has received such required disclosures, including
any acknowledgment of receipt of the original statement shown
thereon.
(h) A statement showing the unpaid principal balance of the Mortgage
Loan, the amount of periodic installments and the date(s) to which
principal and interest have been paid and, if required by Buyer, a
ledger card or ledger history relaying all receipts and
disbursements from the inception of the Mortgage Loan including the
date of each receipt or disbursement.
(i) Any title insurance, title opinion or title report with respect to
the lien priority of the Mortgage Loan.
(j) All documents relating to any rights of rescission of the Obligor.
(k) A copy of any appraisal of the Mortgaged Property.
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(l) Any and all other documents, agreements or instruments related to
the Mortgage or the Note and Seller's rights and benefits therein
and any and all documents related to the making and closing of the
Mortgage Loan.
In the event that any original document (or copy thereof certified by the
public recording office in which such document has been recorded) listed above
cannot be delivered on the Closing Date for the related Mortgage Loans because
(i) such document has not been returned from the applicable recording office, or
(ii) the final attorney title opinion has not yet been issued, Seller shall
deliver or cause to be delivered to Buyer the originals of such documents, or
certified copies thereof, within ninety (90) days after such Closing Date.
Section 2.7. BOOKS AND RECORDS. Each sale of Mortgage Loans under this
Agreement shall be reflected on Seller's financial statements and records as a
sale of assets by Seller, without recourse, except as set forth herein. In the
event that a court of competent jurisdiction were to hold that any transaction
evidenced under this Agreement constitutes a loan and not a purchase and sale,
it is the intent of the parties hereto that this Agreement shall constitute a
security agreement under applicable law and that Seller has granted a first
priority security interest in all of Seller's right, title and interest in and
to each Mortgage Loan and all proceeds thereof. To protect the interests of
Buyer in the event that the transactions contemplated hereunder are deemed to
constitute a pledge of security for a loan, Seller shall execute or cause to be
executed such documents and take or cause to be taken such actions as may be
necessary to maintain and preserve the security interest of Buyer granted
pursuant to this Section 2.7. Seller hereby appoints Buyer its attorney-in-fact
to execute, deliver and file of record any financing statement, continuation
statement, instrument of further assurance or other document or to take such
other action, as may be required under this Section 2.7, and such appointment is
irrevocable and coupled with an interest.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. GENERAL REPRESENTATIONS AND WARRANTIES OF SELLER. As of
each Closing Date, Seller hereby makes each of the following representations and
warranties to Buyer:
(a) Seller is a federal savings bank, duly organized and validly
existing under the laws of the United States of America which has
the power to own its assets and to transact the business in which
it is presently engaged. To the extent required, Seller is duly
qualified in good standing under the laws the State of Iowa and
each jurisdiction where its ownership of property or the conduct of
its business requires such qualification and where the failure to
be so qualified would have a material adverse affect on the
business and assets of Seller, taken as a whole.
(b) Seller has the requisite power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated
hereby. Seller has been duly authorized by proper action to
approve the execution and delivery of this Agreement, the sale of
the Mortgage Loans to Buyer according to the terms of this
Agreement and the execution and delivery to Buyer of all
instruments
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appropriate and necessary for the transfer and sale of the Mortgage
Loans to Buyer. This Agreement has been duly executed and
delivered by Seller and constitutes a legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with
its terms, subject only to bankruptcy and insolvency laws and
similar laws affecting creditors' rights generally and equitable
principles of law.
(c) Neither the execution and delivery of this Agreement nor the
consummation of the transaction contemplated by this Agreement will
conflict with or result in a breach of, or constitute a default
under, any instrument or agreement to which Seller is a party, or
by which it is bound, nor be in violation of any governmental
decree, order or ruling as to which Seller may be bound.
(d) The consummation of the transactions contemplated by this Agreement
are in the ordinary course of business of Seller, and the transfer,
assignment and conveyance of the Notes and the Mortgages by Seller
pursuant to this Agreement are not subject to the bulk transfer or
similar statutory provisions in effect in any applicable
jurisdiction.
(e) No action, suit, proceeding or governmental investigation or
inquiry is currently pending or, to the knowledge of Seller,
threatened against Seller which, if adversely determined, would
have a material adverse effect on the business, combined assets or
financial condition of Seller or on the Mortgage Loans or would
prevent the consummation of the transactions contemplated by this
Agreement.
(f) Seller does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained
in this Agreement. Seller is solvent, and the sale of the Mortgage
Loans will not cause Seller to become insolvent. The sale of the
Mortgage Loans is not undertaken with the intent to hinder, delay
or defraud any creditor of Seller.
(g) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance by Seller of or compliance of Seller with this
Agreement, or, if required, such consent, approval, authorization
or order has been obtained prior to the applicable Closing Date.
(h) Seller has not, in connection with this transaction, incurred any
obligation, made any commitment or taken any action which might
result in a claim against or an obligation by Buyer to pay a sales
brokerage commission, finder's fee or similar fee with respect to
this Agreement.
(i) With respect to approximately ninety percent (90%) of the Mortgage
Loans, by aggregate principal balance as of the Cut-Off Date, as of
the date of origination and, to the best of Seller's knowledge, as
of the Closing Date, the Obligor occupies the related Mortgaged
Property as the Obligor's primary residence. The sole basis for
such representation is either (i) a representation by the Obligor
at origination of the Mortgage Loan that the Mortgaged Property
will be used for a
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period of at least six months every year, or that the Obligor
intends to use the Mortgaged Property, as the primary residence, or
(ii) that the address of the Mortgaged Property is the Obligor's
mailing address as reflected in Seller's records. No more than ten
percent (10%) of the Mortgaged Properties, by aggregate principal
balance as of the Cut-Off Date, are non-owner occupied, and none of
the Mortgaged Properties are rental properties. No Mortgage Loan
was made for the purpose of original construction or made to
facilitate an exchange of property by the Obligor.
Section 3.2. REPRESENTATIONS AND WARRANTIES OF SELLER REGARDING THE
MORTGAGE LOANS. With respect to each Mortgage Loan, as of the Closing Date on
which such Mortgage Loan is sold to Buyer, Seller hereby makes the following
representations and warranties to Buyer:
(a) Seller has clear, marketable and valid title and is the owner of
the Mortgage Loan and the indebtedness evidenced by the Note, and
has the unqualified right to transfer title to the Mortgage Loan
and all documents and instruments in connection therewith to Buyer,
free of any encumbrance, lien, pledge or interest of any third
Person whatsoever.
(b) The information regarding the Mortgage Loan contained in the
Schedule of Assets is true and correct in all respects as of the
Cut-Off Date.
(c) The Note, the Mortgage and all instruments and supporting
documentation evidencing, securing or otherwise related to the
Mortgage Loan are genuine, valid and enforceable according to their
terms, subject only to bankruptcy and insolvency laws, or similar
laws affecting creditors' rights generally and equitable principles
of law, and all signatures thereon are genuine.
(d) The Mortgage Loan was underwritten in compliance with Seller's
underwriting guidelines attached hereto as EXHIBIT B; provided,
however, that a default on the Mortgage Loan shall not, by itself,
be deemed to infer that such Mortgage Loan does not comply with
Seller's underwriting guidelines.
(e) The Mortgage Loan is not contractually delinquent by more than
thirty (30) days, nor has it been delinquent for more than sixty
(60) days at any time within the twelve (12) month period preceding
the Closing Date, nor has the Mortgage Loan at any time been
renewed for the purpose of concealing the delinquency of any
Persons obligated thereon.
(f) As to the Mortgage Loan, all applicable federal, state and local
laws, rules and regulations have been complied with, including
without limitation the Real Estate Settlement Procedures Act, the
Equal Credit Opportunity Act, the Federal Truth-in-Lending Act
(Regulation Z), the Fair Credit Reporting Act, the Flood Disaster
Protection Act, licensing laws, federal and state usury laws, and
any other applicable laws, rules or regulations which prohibit or
limit fees, charges or costs which lenders may impose on borrowers.
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(g) The Mortgage has been duly recorded and constitutes a valid and
legally enforceable lien on the Mortgaged Property in accordance
with the laws of the jurisdiction in which the Mortgaged Property
is located, and the Mortgaged Property is not subject to any other
recorded liens having priority over the lien of the Seller, except
for Permited Exceptions and other liens as are approved in writing
by Buyer.
(h) The Assignment relating to the Mortgage is in recordable form and
is acceptable for recording under the laws of the jurisdiction in
which the Mortgaged Property is located.
(i) The Mortgage Loan and the Note are free from any right of
rescission, defense (including the defense of usury), off-set,
counterclaim or recoupment assessable by the Obligor. No right of
rescission, defense, off-set, counterclaim or recoupment has been
asserted to Seller or, to Seller's knowledge, to any other Person.
(j) The terms of the Note and the Mortgage have not been impaired,
waived, altered or modified in any respect, except by a written
instrument which, if necessary to protect the interests of Buyer,
has been recorded.
(k) The Note, the Mortgage and all other documents contained in the
Mortgage Loan File are on FNMA or FHLMC uniform instruments or on
forms acceptable to FNMA or FHLMC or reasonably acceptable to
Buyer.
(l) Seller has made no representations to the Obligor that are
inconsistent with the Note, the Mortgage or any other mortgage
instrument concerning the Obligor.
(m) There is no payment default, and, to the best of Seller's
knowledge, there is no other default, breach, violation or event of
acceleration existing under the Note or the Mortgage and no event
which, with the passage of time or with notice and the expiration
of any applicable grace or cure period, would constitute a default,
breach, violation or event of acceleration, and Seller has not
waived any default, breach, violation or event of acceleration.
(n) The Mortgage contains customary provisions such as to render the
rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the
security provided thereby, including (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii)
otherwise by judicial foreclosure.
(o) Neither the Mortgage nor the Note has been satisfied, canceled,
subordinated or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in
whole or in part, nor has any instrument been executed that would
effect any such release, cancellation, subordination or rescission.
Seller has not waived performance by the Obligor of any action,
where the Obligor's failure to perform such action would cause the
Mortgage
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Loan to be in default, nor has Seller waived any default resulting
from the action or inaction by the Obligor.
(p) The Mortgage Loan has been closed and the proceeds of the Mortgage
Loan have been fully disbursed and there is no requirement for
future advances with respect thereto. All costs, fees and expensed
incurred in making or closing the Mortgage Loan and the recording
of the Mortgage have been paid, and the Obligor is not entitled to
any refund of any amounts paid or due under the Note or the
Mortgage.
(q) If required by Seller's underwriting guidelines, the Mortgage Loan
is covered by either (i) an attorney's opinion of title and
abstract of title the form and substance of which is acceptable to
FNMA or (ii) an ALTA lender's title policy or other generally
acceptable form of policy of insurance issued by a title insurer
qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring Seller, its successor and assigns, as
to the appropriate first or second priority lien of the Mortgage,
in the original principal amount of the Mortgage Loan, subject only
to Permitted Exceptions. No claims have been made under any such
lender's title insurance policy, and Seller has not taken any
action or failed to take any action which would impair the coverage
of any such lender's title insurance policy.
(r) To the best of Seller's knowledge, there are no mechanic's or
similar liens or claims which have been filed for work, labor or
material (and no rights outstanding that by law could give rise to
such liens) affecting the Mortgaged Property which are or may be
liens prior to or equal or coordinate with the lien of the
Mortgage.
(s) In the event that the Mortgage is a deed of trust, a trustee,
authorized and duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is
named in the Mortgage.
(t) If required pursuant to Seller's underwriting guidelines, the
Mortgage Loan File contains an appraisal of the Mortgaged Property
signed prior to the approval of the application for the Mortgage
Loan by a qualified appraiser who (i) is licensed in the state
where the Mortgaged Property is located; (ii) has no interest,
direct or indirect, in the Mortgaged Property or in any loan on the
security thereof; and (iii) does not receive compensation that is
affected by the approval or disapproval of the Mortgage Loan. All
such appraisals comply in all material respects with applicable
federal and state laws and regulations.
(u) The Obligor has not requested from Seller, and Seller has no
knowledge of any request for, any relief for the Obligor under the
Soldiers' and Sailors' Civil Relief Act of 1940.
(v) To the best of Seller's knowledge, there exists no violation of any
local, state, or federal environmental law, rule or regulation in
respect of the Mortgaged Property which violation has or could have
a material adverse effect on the market value
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of such Mortgaged Property. Seller has no knowledge of any pending
action or proceeding involving the Mortgaged Property in which
compliance with any environmental law, rule or regulation is in
issue; and, to the best of Seller's knowledge, nothing further
remains to be done to satisfy in full all requirements of each such
law, rule or regulation constituting a prerequisite to the use and
enjoyment of such Mortgaged Property.
(w) The Mortgaged Property is a fee simple estate and consists of a
parcel of real property with (i) a single family residence, (ii) a
two-to four-family dwelling, (iii) an individual condominium unit
in a low-rise or high-rise condominium project, or (iv) an
individual unit in a planned unit development erected thereon.
(x) All improvements upon the Mortgaged Property are insured by a
blanket hazard insurance policy which is issued by an insurer and
in an amount acceptable to FNMA against loss by fire and such other
risks (excluding mud slides and earthquakes) as are usually insured
against in the broad form of extended coverage hazard insurance
from time to time available, including flood hazards if upon
origination of the Mortgage Loan, the Mortgaged Property was
located in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards
(and if flood insurance was required by federal regulation).
Seller has not engaged in and has no knowledge of the Obligor's or
any subservicer's having engaged in, any act or omission which
would impair the coverage of any such policy, the benefits of the
endorsement provided for therein or the validity and binding effect
of either.
(y) No taxes, impositions, fees or assessments in the nature of a tax
shall accrue against or be collected from Buyer on the Mortgage
Loan by reason of the purchase by Buyer of the Mortgage Loan.
(z) The Mortgage has never been assigned to any third party.
(aa) Seller has not initiated an action of foreclosure against nor
obtained a judgment of foreclosure against the related Mortgaged
Property.
(bb) To the best of Seller's knowledge: (i) neither the Mortgaged
Property nor any improvements thereon is the subject of pending
insurance claims; (ii) the Obligor is not deceased, and neither
the Obligor nor the Mortgage Loan is the subject of, or are in any
way affected by, any pending legal proceeding; and (iii) the
Mortgaged Property is not the subject matter of a pending sale to a
third party by the Obligor, nor is the Mortgage Loan the subject
matter of a payoff in progress.
(cc) None of the credits applied to the Mortgage Loan has been
gratuitous or given by Seller for considerations other than the
payment of money, and all amounts represented to be payable on
Mortgage Loan are, in fact, payable in accordance with the
provisions of the Note.
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(dd) The Mortgage contains usual and customary provisions for the
acceleration of amounts outstanding on the Note in the event that
the Mortgaged Property is sold.
(ee) Seller has not received notice of: (i) any proceeding for the total
or partial condemnation of the Mortgaged Property; (ii) any
proceeding for relief by or against any Obligor under federal or
state bankruptcy or insolvency laws; or (iii) any subsequent,
intervening mortgage, lien, attachment, lis pendens or other
encumbrance affecting the Mortgaged Property, other than Permitted
Exceptions.
(ff) The Mortgage Loan contains no provisions pursuant to which payments
are (i) paid or partially paid with funds deposited in any separate
account established by Seller, Obligor or any Person on behalf of
Obligor; (ii) paid by any source other than Obligor; or (iii)
contains any similar provisions which may constitute a "buydown" of
the interest rate.
(gg) The consideration received by Seller upon the sale of the Mortgage
Loan constitutes fair consideration and reasonably equivalent value
for the Mortgage Loan.
(hh) Seller used no adverse selection procedures in selecting the
Mortgage Loan from among the outstanding loans in Seller's
portfolio.
(ii) The Combined Loan to Value Ratio on the Mortgage Loan does not
exceed one hundred percent (100%).
(jj) The related Mortgage Loan File contains each of the documents and
instruments specified to be included therein, with such exceptions
as set forth in Section 2.6 hereof.
(kk) The Mortgaged Property is neither a mobile home nor a manufactured
housing unit that is not permanently attached to its foundation.
(ll) The Mortgage Loan has no shared appreciation feature or other
contingent interest feature.
(mm) The Mortgage Loan is secured by either a first or a second lien.
Seller has not received a notice of default of any first mortgage
loan related to a Mortgaged Property which has not been cured.
(nn) The indebtedness evidenced by the Mortgage Loan is not convertible
to an ownership interest in the related Mortgaged Property or the
related Obligor.
(oo) No Mortgage related to the Mortgage Loan provides that the related
Mortgaged Property secures any other promissory note or obligation
expressly described in such Mortgage other than another Mortgage
Loan.
13
(pp) The Mortgage Loan does not permit the Obligor to require the
release of all or a portion of the Mortgaged Property from the lien
of the related Mortgage other than upon payment in full of the
Mortgage Loan.
(oo) The Mortgage Loan does not provide for deferred interest.
Section 3.3. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby makes
the following representations and warranties to Seller as of each Closing Date:
(a) Buyer is a corporation, duly organized and validly existing under
the laws of the State of Iowa, which has the power to own its
assets and to transact the business in which it is presently
engaged. Buyer is duly qualified and in good standing under the
laws of the State of Iowa and each jurisdiction where its ownership
of property or the conduct of its business requires such
qualification and where the failure to be so qualified would have a
material adverse affect on the business and assets of Buyer, taken
as a whole.
(b) Buyer has the requisite corporate power and authority to execute
and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all
necessary corporate action, and no other corporate proceedings on
the part of Buyer are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by Buyer and constitutes a
legal, valid and binding obligation of Buyer, enforceable against
Buyer in accordance with its terms, subject only to bankruptcy and
insolvency laws and similar laws affecting creditors' rights
generally and equitable principles of law.
(c) Neither the execution and delivery of this Agreement, nor the
consummation of the transaction contemplated by this Agreement will
conflict with or result in a breach of, or constitute a default
under, any instrument or agreement to which Buyer is a party, or by
which it is bound, or be in violation of any governmental decree,
order or ruling as to which Buyer may be bound.
(d) No action, suit, proceeding or governmental investigation or
inquiry is currently pending or, to the knowledge of Buyer,
threatened against Buyer which, if adversely determined, would have
a material adverse effect on the business, combined assets or
financial condition of Buyer or on the Mortgage Loans or would
prevent the consummation of the transactions contemplated by this
Agreement.
(e) Buyer does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained
in this Agreement. Buyer is solvent, and the purchase of the
Mortgage Loans will not cause Buyer to become insolvent.
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(f) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance by Buyer of or compliance of Buyer with this
Agreement, or, if required, such consent, approval, authorization
or order has been obtained prior to the applicable Closing Date.
(g) Buyer has not, in connection with this transaction, incurred any
obligation, made any commitment or taken any action which might
result in a claim against or an obligation by Seller to pay a sales
brokerage commission, finder's fee or similar fee with respect to
this Agreement.
ARTICLE IV
COVENANTS OF SELLER
Section 4.1. COVENANTS OF SELLER. Seller covenants with Buyer to do as
follows:
(a) Do and perform, or cause to be done and performed, at Buyer's
request, such acts as may reasonably be necessary or desirable in
order to vest in Buyer title to all the Mortgage Loans sold to
Buyer under this Agreement and to enable Buyer to collect payments
due to Buyer under the Mortgage Loans.
(b) With respect to each sale of Mortgage Loans under this Agreement,
deliver to Buyer any monies rightfully due and owing to Buyer which
are received after the related Cut-Off Date with respect to such
Mortgage Loans.
(c) Forward promptly to Buyer all communications or inquiries
concerning Mortgage Loans which Seller receives after the Closing
Date with respect to such Mortgage Loans.
(d) Comply with all applicable requirements of the Real Estate
Procedures Settlement Act and Regulation X promulgated thereunder,
including without limitation any notification requirements
regarding a transfer of servicing.
ARTICLE V
INDEMNIFICATION; REPURCHASE
Section 5.1. SELLER'S INDEMNIFICATION. (a) Seller shall indemnify
Buyer and protect, defend and hold Buyer, its Affiliates, officers, directors,
employees, agents and successors harmless from and against any and all
liability, loss, cost, demand, lawsuits, injury or expense, including without
limitation all court costs, expert witness fees, trial preparation fees and
attorney's fees wheresoever and howsoever arising, so long as such fees or costs
are reasonable in amount, which Buyer may incur for or by reason of:
(i) The untruthfulness of any of the warranties or
representations made by Seller in this Agreement, to the
extent that such untruthfulness does not arise by reason of
Buyer's actions;
15
(ii) Seller's breach of, or failure to perform or observe, any
covenants or provisions of this Agreement, to the extent
that the breach has a material adverse effect and to the
extent that such breach does not arise by reason of Buyer's
actions; or
(iii) Any action taken by Seller with respect to any Mortgage Loan
prior to the Closing Date for such Mortgage Loan.
(b) The foregoing provisions of this Section 5.1 shall be subject to
the following conditions:
(i) Buyer must promptly notify Seller upon commencement of any
action or assertion of any claim by any Person which would
give rise to a claim for indemnification if Seller is
unaware of the action or assertion;
(ii) If Seller agrees that indemnification by Seller is
applicable to a cause of action, no settlement of action
against Buyer shall be made without the consent of Seller,
and Seller may settle any action without the consent of
Buyer, but Buyer shall be given an opportunity to review and
comment on proposed settlement documents; and
(iii) Seller shall have the right to select counsel for the
defense of any action or assertion of a claim against Buyer,
subject to approval by Buyer, which approval shall not be
unreasonably withheld, and each party shall have the right
to consult with the other party regarding the defense of a
claim against it.
Section 5.2. BUYER'S INDEMNIFICATION. (a) Buyer shall indemnify Buyer and
protect, defend and hold Seller, its Affiliates, officers, directors, employees,
agents and successors harmless from and against any and all liability, loss,
cost, demand, lawsuits, injury or expense, including without limitation all
court costs, expert witness fees, trial preparation fees and attorney's fees
wheresoever and howsoever arising, so long as such fees or costs are reasonable
in amount, which Seller may incur for or by reason of:
(i) The untruthfulness of any of the warranties or
representations made by Buyer in this Agreement, to the
extent that such untruthfulness does not arise by reason of
Seller's actions;
(ii) Buyer's breach of, or failure to perform or observe, any
covenants or provisions of this Agreement, to the extent
that the breach has a material adverse effect and to the
extent that such breach does not arise by reason of Seller's
actions; or
(iii) Any action taken by Buyer with respect to any Mortgage Loan
after the Closing Date for such Mortgage Loan.
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(b) The foregoing provisions of this Section 5.2 shall be subject to
the following conditions:
(i) Seller must promptly notify Buyer upon commencement of any
action or assertion of any claim by any Person which would
give rise to a claim for indemnification if Buyer is unaware
of the action or assertion;
(ii) If Buyer agrees that indemnification by Buyer is applicable
to a cause of action, no settlement of action against Seller
shall be made without the consent of Buyer as long as
indemnification continues to be sought, and Buyer may settle
any action without the consent of Seller, but Seller shall
be given an opportunity to review and comment on proposed
settlement documents; and
(iii) Buyer shall have the right to select counsel for the defense
of any action or assertion of a claim against Seller,
subject to approval by Seller, which approval shall not be
unreasonably withheld, and each party shall have the right
to consult with the other party regarding the defense of a
claim against it.
Section 5.3. CURE OF BREACH, REPURCHASE OR SUBSTITUTION BY SELLER. In
the event of a breach of any of Seller's representations, warranties or
covenants, in addition to the remedies specified in Section 5.1 above, Buyer,
as assignee of any purchased Mortgage Loan, may demand, for the twenty-four
(24) months immediately following the Closing Date for such Mortgage Loan
(the "Substitution Period"), that Seller, at Seller's option, either: (a)
cure the breach or (b) substitute a loan of equal value subject to all the
terms and conditions of this Agreement. After the Substitution Period, in
the event of a breach of any of Seller's representations, warranties or
covenants, in addition to the remedies specified in Section 5.1 above, Buyer
may demand that Seller, at Seller's option, either: (a) cure the breach or
(b) repurchase such Mortgage Loan forthwith, for the then unpaid principal
balance plus accrued interest. Seller shall have a period of ten (10)
Business Days from its receipt of written notice from Buyer of a breach to
take such action demanded by Buyer as Seller may elect, but if Seller elects
to cure the breach and the nature of the breach giving rise to the obligation
of Seller to cure the breach is such that it cannot be cured immediately,
Seller shall have the right to proceed diligently to effect a cure, which
shall in no event be effectuated later than thirty (30) days from the date of
Seller's receipt of notice of the breach. If Seller has not cured the breach
after this thirty (30) day period lapses, Seller shall repurchase or
substitute the Mortgage Loan at the option of Buyer.
ARTICLE VI
AGREEMENT NOT TO COMPETE; PREPAYMENT
Section 6.1. AGREEMENT NOT TO COMPETE. (a) Seller shall not take any
action or permit or cause any action to be taken by any of its employees or any
of its Affiliates on behalf of Seller to personally, by telephone or mail,
solicit the Obligor under any Mortgage Loan for the purpose of refinancing a
Mortgage Loan, in whole or in part, without the prior written consent of Buyer.
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(b) Notwithstanding the foregoing, it is understood and agreed that
promotions undertaken by Seller or any Affiliate of Seller on behalf of Seller
which are directed to the general public at large, including without limitation
mass mailings based on commercially acquired mailing lists and newspaper, radio
and television advertisements, shall not constitute solicitation under this
Section 6.1.
(c) It is understood and agreed that all rights and benefits relating to
the solicitation of any Obligors and the attendant right, title and interest in
and to the list of such Obligors and data relating to their Mortgages (including
insurance renewal dates) shall be transferred to Buyer pursuant to this
Agreement as of each Closing Date, and Seller shall take no action to undermine
these rights and benefits.
Section 6.2. PREPAYMENT OF MORTGAGE LOAN. If any Mortgage Loan is
prepaid within forty-five (45) days of the date on which it was sold to Buyer
hereunder, Buyer shall not be obligated to pay a Premium with respect to such
prepaid Mortgage Loan. If Buyer has paid a Premium prior to the prepayment
of such Mortgage Loan, Seller shall promptly repay to Buyer 100 percent of
such Premium.
ARTICLE VII
MISCELLANEOUS
Section 7.1. NOTICES. All demands, notices, offers, acceptances, waivers
and other communications required or permitted by this Agreement shall be in
writing (including telegraphic, facsimile or telex communication) and shall
be effective and deemed delivered only when received by the party to which it
is sent; PROVIDED, HOWEVER, that a facsimile transmission shall be deemed to
be received when transmitted so long as the transmitting machine has provided
an electronic confirmation of such transmission and a written copy is sent by
first class or express mail, postage prepaid or by overnight courier. Any
such notice shall be sent to a party at the following address or facsimile
number (or such other address or facsimile number as may hereafter be
furnished to the other parties hereto, in writing, by such party wishing to
change its address or facsimile number):
(i) If to Buyer: AmerUs Life Insurance Company
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Telecopy Number: (000) 000-0000
(ii) If to Seller: AmerUs Bank
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxx
Telecopy Number: (000) 000-0000
With copy to: Xxxxxxxxx X. Xxxxxxx, Esq.
AmerUs Life Holdings, Inc.
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000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Telecopy: (000) 000-0000
Section 7.2. RELATIONSHIP BETWEEN PARTIES. Under no circumstances
shall Buyer and Seller be considered agents or employees of each other, nor
shall this Agreement be construed as creating a partnership or joint venture.
Section 7.3. EXECUTION IN COUNTERPARTS. This Agreement and any
amendment pursuant to Section 7.12 may be executed in any number of
counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same instrument.
Section 7.4. GOVERNING LAW. Exept to the extent federal law applies, this
Agreement shall be governed by and construed in accordance with the laws of the
State of Iowa, without regard to principles of conflicts of laws. Seller and
Buyer hereby consent to the jurisdiction of all courts in the State of Iowa with
respect to any action connected with this Agreement or arising therefrom.
Section 7.5. SEVERABILITY OF PROVISIONS. Should any provision or
provisions of this Agreement be declared invalid, illegal or unenforceable
for any reason, such decision shall not affect the validity, legality or
enforceability of the remaining portion, which remaining portion shall remain
in full force and effect as if this Agreement had been executed with the
invalid, illegal or unenforceable portion eliminated therefrom. Any such
invalidity, illegality or unenforceability of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. To the extent permitted by applicable law, Seller and
Buyer waive any provision of law which prohibits or renders unenforceable any
provision of this Agreement.
Section 7.6. AGREEMENT IS ENTIRE CONTRACT. This Agreement constitutes
the entire contract between the parties hereto, and no party shall be liable
or bound to the other in any manner by any warranties, representations or
covenants except as specifically set forth herein. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and permitted assigns of the parties hereto. Nothing
in this Agreement, express or implied, is intended to confer upon any party,
other than the parties hereto and their respective successors and permitted
assigns, any rights, remedies, obligations or liabilities under or by reason
of this Agreement, except as expressly provided herein.
Section 7.7. COSTS, FEES AND EXPENSES. Except as otherwise provided in
this Agreement, each party hereto agrees to pay all costs, fees and expenses
which it has incurred in connection with or incidental to the matters contained
in this Agreement, including without limitation any fees and disbursements to
its accountants and counsel. To the extent this Agreement provides that one
party is entitled to reimbursement from the other for expenses incurred by it,
such party shall upon request provide reasonable documentations evidencing such
expenses.
Section 7.8. HEADINGS. Section headings used in this Agreement are for
convenience of reference only and are not part of this Agreement for any other
purpose.
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Section 7.9. SURVIVAL OF CERTAIN PROVISIONS. The covenants,
representations, warranties, agreements, obligations, undertakings and
indemnifications of Seller and Buyer contained in this Agreement shall be
continuing and shall survive the execution and the termination of this
Agreement.
Section 7.10. NO WAIVER. Failure or delay on the part of Seller or
Buyer to exercise any right provided for in this Agreement shall not act as a
waiver thereof, nor shall any single or partial exercise of any right by
Seller or Buyer preclude any other or further exercise thereof. In no event
shall a term or provision of this Agreement be deemed to have been waived,
modified or amended unless such waiver, modification or amendment is in
writing and signed by the parties hereto.
Section 7.11. NO REMEDY EXCLUSIVE. No remedy under this Agreement is
intended to be exclusive of any other available remedy, and each remedy shall
be cumulative and shall be in addition to other remedies under this Agreement
or existing at law or equity.
Section 7.12. AMENDMENTS. Each and every modification and amendment of
this Agreement must be in writing and signed by the parties hereto.
Section 7.13. ASSIGNMENT OF AGREEMENT. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of
Buyer and Seller.
Section 7.14. TERMINATION. This Agreement may be terminated by either
party, with or without cause, upon ten (10) days' prior written notice. No
such termination shall affect the rights or liabilities of the parties with
respect to Mortgage Loans purchased by Buyer prior to the date of such
termination.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement in the
as of the 5th day of March, 1997.
AMERUS BANK
By:
--------------------------------------------
Its Senior Vice President
AMERUS LIFE INSURANCE COMPANY
By:
--------------------------------------------
Its Vice President
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EXHIBIT A
LOAN FUNDING SETTLEMENT STATEMENT
Reference is hereby made to that certain Master Agreement of Purchase and
Sale dated as of March 5, 1997, by and between AmerUs Bank ("Seller") and
AmerUs Life Insurance Company ("Buyer"), as such agreement may be amended or
supplemented from time to time pursuant to its terms (the "Agreement"). As
of the Closing Date set forth below in this Loan Funding Settlement Statement
by and between Seller and Buyer (this "Settlement Statement"), Seller hereby
sells, assigns, transfers and conveys to Buyer the Mortgage Loans described
in the Schedule of Assets attached hereto (the "Loans") in accordance with
the terms and conditions set forth in the Agreement and the terms set forth
in this Settlement Statement, and Buyer hereby agrees to purchase the Loans
from Seller in accordance with the terms and conditions set forth in the
Agreement and the terms set forth in this Settlement Statement and
acknowledges receipt of the Loans. Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in the Agreement.
In consideration of the mutual covenants and obligations contained herein
and in the Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer hereto agree as
follows:
1. In addition to the terms and conditions set forth in the Agreement,
the following terms shall apply to the sale by Seller and the purchase by Buyer
of the Loans:
CLOSING DATE:
--------------------------
CUT-OFF DATE:
--------------------------
BOOK VALUE: $
--------------------------
ACCRUED INTEREST: $
--------------------------
PREMIUM RATE:
--------------------------
PREMIUM: $
--------------------------
TOTAL PURCHASE PRICE: $
--------------------------
2. Seller hereby represents, warrants and covenants to Buyer that (i)
this Settlement Statement has been duly authorized, executed and delivered by
Seller and constitutes the legal, valid and binding obligation of Seller,
enforceable in accordance with its terms, subject only to bankruptcy and
insolvency laws and similar laws affecting creditors' rights generally and
equitable principles of law and (ii) the representations and warranties of
Seller set forth in the Agreement are true and correct as of the date hereof.
3. Buyer hereby represents, warrants and covenants to Seller that (i)
this Settlement Statement has been duly authorized, executed and delivered by
Buyer and constitutes the legal, valid and binding obligation of Buyer,
enforceable in accordance with its terms, subject only to bankruptcy and
insolvency laws and similar laws affecting creditors' rights generally and
equitable principles of law and (ii) the representations and warranties of
Buyer set forth in the Agreement are true and correct as of the date hereof.
4. This Settlement Statement shall be governed by and construed in
accordance with the laws of the State of Iowa, without regard to principles of
conflicts of law. Any modification or
amendment of this Settlement Statement must be in writing and signed by the
parties hereto. This Settlement Statement may be executed in multiple
counterparts, each of which shall be deemed an original but all of which,
taken together, shall constitute one instrument. All representations,
warranties and covenants made in this Settlement Statement shall be
continuing representations, warranties and covenants and shall survive the
execution and and the termination of this Settlement Statement.
IN WITNESS WHEREOF, the parties hereto have executed this Loan Funding
Settlement Statement as of the ____ day of ________ 19__.
AMERUS BANK
By:
--------------------------------------
Its Senior Vice President
AMERUS LIFE INSURANCE COMPANY
By:
--------------------------------------
Its Vice President
Wiring Instructions:
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EXHIBIT B
UNDERWRITING GUIDELINES
