EXECUTION COPY
BLOCK MORTGAGE FINANCE, INC.
Block Mortgage Finance
Asset Backed Certificates, Series 1999-2,
Class A-1
Class A-2
Class A-3
Class A-4
Class A-5
Class A-6
UNDERWRITING AGREEMENT
October 22, 1999
Chase Securities Inc.,
as Representative of the several
Underwriters listed herein
c/o Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Block Mortgage Finance, Inc. (the "Depositor"), a wholly-owned, limited
purpose subsidiary of Companion Mortgage Corporation ("Companion"), has
authorized the issuance and sale of Block Mortgage Finance Asset Backed
Certificates, Series 1999-2, Class A-1, Class A-2, Class A-3 and Class A-4
Certificates (collectively, the "Group 1 Certificates") and Class A-5 and Class
A-6 Certificates (the "Group 2 Certificates" and, together with the Group 1
Certificates, the "Class A Certificates"), and the Class R Certificates (the
"Class R Certificates"). The Class A Certificates and the Class R Certificates
are herein collectively referred to as the "Certificates". The Certificates
evidence in the aggregate the beneficial ownership interest in a pool of fixed-
and adjustable-rate mortgage loans (the "Mortgage Loans"). The Group 1
Certificates will represent an undivided ownership interest in the group of
Mortgage Loans (the "Fixed Rate Group") which are secured by fixed-rate first
and second mortgages primarily on one- to four-family residential dwellings. The
Group 2 Certificates will represent an undivided ownership interest in the group
of Mortgage Loans (the "Adjustable Rate Group" and, together with the Fixed Rate
Group, the "Loan Groups") which are secured by adjustable-rate first mortgages
primarily on one- to four-family residential dwellings.
Only the Class A Certificates are being purchased by the several
underwriters named in Schedule A hereto (collectively, the "Underwriters"), at
the prices set forth in Schedule A.
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement"), dated as of October 1, 1999 among the
Depositor, Companion, as seller (in such capacity, the "Seller"), Block
Financial Corporation, as master servicer (the "Master Servicer"), and Bank One,
National Association, as trustee (the "Trustee"). The Master Servicer will enter
into subservicing agreements, each dated as of October 1, 1999 (the
"Sub-Servicing Agreements"), with Companion Servicing Company, L.L.C. ("CSC")
and Fairbanks Capital Corp. ("Fairbanks" and, together with CSC, the
"Sub-Servicers") to provide for the sub-servicing of the Mortgage Loans. The
Seller, pursuant to the terms of the Pooling and Servicing Agreement, will
transfer to the Depositor and the Depositor, pursuant to the Pooling and
Servicing Agreement, will transfer to the Trustee, all of its right, title and
interest in and to the Mortgage Loans as of the Cut-Off Date (except for (i)
principal (including Prepayments) and interest collected on each Mortgage Loan
on or prior to the Cut-Off Date (other than, with respect to Actuarial Loans,
scheduled monthly payments collected on or prior to the Cut-Off Date and due
after the Cut-Off Date) and (ii) with respect to Actuarial Loans, scheduled
monthly payments due on or prior to the Cut-Off Date) and the collateral
securing each Mortgage Loan. The Certificates will evidence fractional undivided
interests in the property held in trust for the holders of such Certificates
(the "Trust"). The assets of the Trust will include, among other things: the
Mortgage Loans to be conveyed by the Depositor to the Trust on the Closing Date;
such amounts as may be held by the Master Servicer in the Collection Account
(other than investment earnings thereon) and any other accounts held by or
maintained by the Master Servicer with respect to the servicing of the Mortgage
Loans and the other assets of the Trust; and such amounts as may be held by the
Trustee in the Distribution Account (other than investment earnings thereon) and
any other accounts held by the Trustee for the Trust. The aggregate undivided
interest in the Trust represented by the Class A Certificates initially will be
equal to $158,233,000 of principal (subject to a variance of plus or minus 5%),
which will represent 100% of the outstanding principal balances of the Mortgage
Loans as of the Cut-Off Date. The Class A Certificates will have the benefit of
two certificate guaranty insurance policies (each, a "Policy") issued by MBIA
Insurance Corporation (the "Certificate Insurer"), the principal operating
subsidiary of MBIA Inc., a New York Stock Exchange listed company, pursuant to
an Insurance Agreement (the "Insurance Agreement") dated as of October 1, 1999
among the Seller, the Master Servicer, the Depositor, H&R Block, Inc., the
Trustee and the Certificate Insurer. In addition to the Insurance Agreement, the
Seller, the Master Servicer, the Underwriters and the Certificate Insurer will
enter into an Indemnification Agreement (the "Indemnification Agreement") dated
as of October 26, 1999. A form of the Pooling and Servicing Agreement has been
filed as an exhibit to the Registration Statement (hereinafter defined).
An election will be made to treat the assets of the Trust as a "real
estate mortgage investment conduit" (a "REMIC") for federal income tax purposes.
The Class A Certificates will represent beneficial ownership of "regular
interests" in the REMIC and the Class R Certificates will represent beneficial
ownership of "residual interests" in the REMIC.
Capitalized terms used but not defined herein shall have the meanings
given to them in the Pooling and Servicing Agreement.
2
This Underwriting Agreement, the Pooling and Servicing Agreement, the
Sub-Servicing Agreements, the Insurance Agreement and the Indemnification
Agreement are referred to collectively herein as the "Agreements". The Master
Servicer, the Seller and the Depositor are referred to collectively herein as
the "Transaction Parties".
The Depositor filed with the Securities and Exchange Commission (the
"Commission") on September 30, 1998, a registration statement on Form S-3 (No.
333-65215), including a form of prospectus and prospectus supplement relating to
the Class A Certificates, and pursuant to the provisions hereof shall file such
post-effective amendments thereto as may hereafter be required pursuant to the
Securities Act of 1933, as amended (the "1933 Act"), and the rules and
regulations of the Commission thereunder (the "Rules and Regulations"). Such
registration statement (as amended) is referred to herein as the "Registration
Statement"; the prospectus and prospectus supplement relating to the offering of
the Class A Certificates constituting a part of the Registration Statement filed
or to be filed by the Depositor are collectively referred to herein as the
"Prospectus" and each of the prospectus and prospectus supplement is referred to
as the "Base Prospectus" and the "Prospectus Supplement," respectively; and any
reference herein to any amendment or supplement with respect to the Registration
Statement or the Prospectus shall be deemed to refer to and include any
information deemed to be a part thereof pursuant to Rule 430A under the 1933
Act.
Section 1. Representations and Warranties of the Master Servicer, the
Seller and the Depositor. Each of the Master Servicer, the Seller and the
Depositor, as to itself, and the Master Servicer, individually, with respect to
(a), (b), (o), (q), (r) and (s) below, represents and warrants to, and agrees
with the Underwriters that:
(a) The Registration Statement has become effective under the 1933 Act. The
Registration Statement complies, and all amendments to the Registration
Statement at the time such amended Registration Statement becomes effective will
comply, in all material respects with the requirements of the 1933 Act and the
Rules and Regulations. The Registration Statement at the time such Registration
Statement became effective did not, and any amendment to the Registration
Statement at the time such amended Registration Statement becomes effective will
not, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus as of the date hereof does, and the
Prospectus as amended or supplemented as of the Closing Date will, comply in all
material respects with the requirements of the 1933 Act and the Rules and
Regulations. The Prospectus as of the date hereof did not, and the Prospectus as
amended or supplemented as of the Closing Date will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in, or omissions
from, the Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Depositor in writing by the
Underwriters or the Certificate Insurer expressly for use in the Registration
Statement or Prospectus. The Seller and the Depositor acknowledge that the
statements set forth in the last paragraph of the cover page of the Prospectus
Supplement and under the caption "UNDERWRITING" in the Prospectus Supplement
(the "Underwriter Information") constitute the only information furnished in
writing by the Underwriters for inclusion in the Prospectus. The conditions to
the use by the
3
Depositor of a registration statement on Form S-3 under the 1933 Act, as set
forth in the General Instructions to Form S-3, have been satisfied with respect
to the Registration Statement and the Prospectus. There are no contracts or
documents of the Depositor or its affiliates that are required to be filed as
exhibits to the Registration Statement pursuant to the 1933 Act or the Rules and
Regulations that have not been so filed on or prior to the effective date of the
Registration Statement.
(b) Since the respective dates as of which information is given in the
Prospectus, or the Prospectus as amended and supplemented at the Closing Date,
there has not been any material adverse change in the general affairs,
management, financial condition or results of operations of any of the
Transaction Parties or of their subsidiaries or affiliates, otherwise than as
set forth in the Prospectus or the Prospectus as amended and supplemented at the
Closing Date.
(c) Such Transaction Party has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its respective
jurisdiction of incorporation, with the full right, power and authority
(corporate and other) to own, lease and operate its properties and conduct its
business as described in the Prospectus and to enter into and perform its
obligations under the Agreements to which it is a signatory, and, with respect
to the Depositor, to cause the Certificates to be issued; such Transaction Party
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction which requires such qualification, except where
failure to be so qualified would not have a material adverse effect on (A) its
business or financial condition, (B) its obligations under the Agreements to
which it is a signatory or (C) the Owners of the Certificates; such Transaction
Party is duly authorized and licensed under applicable law, including, without
limitation, those that regulate the business of originating, purchasing, selling
or servicing first and second lien mortgage loans, to conduct, in the various
jurisdictions in which it does business, the business it currently conducts
therein and to perform its obligations as contemplated by the Agreements, except
where failure to be so qualified or licensed would not have a material adverse
effect on (A) its business or financial condition, (B) its obligations under the
Agreements to which it is a signatory or (C) the Owners of the Certificates.
(d) There are no legal or governmental proceedings pending to which such
Transaction Party is a party, or of which any property of such Transaction Party
is the subject, which could reasonably be expected to materially and adversely
affect (A) its financial position, shareholders' equity or results of
operations, (B) its obligations under the Agreements to which it is a signatory
or (C) the Owners of the Certificates; and to the best knowledge of such
Transaction Party, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(e) This Underwriting Agreement has been and, prior to the Closing Date,
the Agreements (other than this Underwriting Agreement) will have been, duly
authorized, executed and delivered by each Transaction Party which is a party to
such Agreements and, when duly executed and delivered by the other parties
thereto, will constitute legal, valid and binding instruments enforceable
against such Transaction Party, in accordance with their respective terms,
subject as to enforceability (i) to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors' rights
generally, (ii) to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (iii)
4
with respect to rights of indemnity under this Underwriting Agreement and the
Indemnification Agreement, to limitations of public policy under applicable
securities laws.
(f) The issuance and delivery of the Certificates, the consummation of any
other of the transactions contemplated in the Agreements and the fulfillment of
the terms of the Agreements do not and will not conflict with or violate any
term or provision of the Certificate or Articles of Incorporation or Bylaws of
such Transaction Party; any statute, order or regulation applicable to such
Transaction Party of any court, regulatory body, administrative agency or
governmental body having jurisdiction over such Transaction Party; and do not
and will not conflict with, or result in a breach or violation or the
acceleration of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the property or assets
of such Transaction Party pursuant to the terms of, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which such
Transaction Party is a party or by which such Transaction Party may be bound or
to which any of the property or assets of such Transaction Party may be subject,
except for conflicts, violations, breaches, accelerations and defaults which
would not be, individually or in the aggregate, materially adverse to such
Transaction Party or the Owners of the Certificates or materially adverse to the
transactions contemplated by the Agreements.
(g) Deloitte & Touche LLP is an independent public accountant with respect
to the Master Servicer, the Seller and the Depositor as required by the 1933 Act
and the Rules and Regulations.
(h) The direction by the Depositor to the Trustee to execute, countersign,
issue and deliver the Certificates will, as of the Closing Date, be duly
authorized by the Depositor, and assuming the Trustee has been duly authorized
to do so, when executed, countersigned, issued and delivered by the Trustee in
accordance with the Pooling and Servicing Agreement, the Certificates will be
validly issued and outstanding and will be entitled to the benefits provided by
the Pooling and Servicing Agreement.
(i) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the issuance or sale of the Class A Certificates, or the consummation by
such Transaction Party of the other transactions contemplated by the Agreements,
except the registration under the 1933 Act of the Class A Certificates and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or "blue sky" laws in connection with the
issuance of the Class A Certificates and the purchase and distribution of the
Class A Certificates by the Underwriters.
(j) Such Transaction Party possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Prospectus, and such Transaction Party has not
received any notice of proceedings relating to the revocation or modification of
any such license, certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the conduct of its business, operations or
financial condition.
5
(k) At the time of execution and delivery of the Pooling and Servicing
Agreement, the Seller (i) will have good and marketable title to each Mortgage
Loan being transferred by it to the Depositor, free and clear of any liens, (ii)
will not have assigned to any Person, other than the Depositor, any of its
right, title or interest in or to such Mortgage Loans and (iii) will have the
power and authority to sell such Mortgage Loans to the Depositor.
(l) At the time of execution and delivery of the Pooling and Servicing
Agreement, after giving effect to the sale of the Mortgage Loans from the Seller
to the Depositor pursuant to the Pooling and Servicing Agreement, the Depositor
(i) will have good and marketable title to each Mortgage Loan being transferred
by it to the Trustee pursuant to the Pooling and Servicing Agreement, free and
clear of any liens, (ii) will not have assigned to any person, other than the
Trustee, any of its right, title or interest in or to such Mortgage Loans and
(iii) will have the power and authority to sell such Mortgage Loans to the
Trustee.
(m) Upon execution and delivery of the Pooling and Servicing Agreement by
all of the parties thereto, the Depositor will have acquired beneficial
ownership of all of the Seller's right, title and interest in and to the
Mortgage Loans (except for (i) principal (including Prepayments) and interest
collected on each Mortgage Loan on or prior to the Cut-Off Date (other than,
with respect to Actuarial Loans, scheduled monthly payments collected on or
prior to the Cut-Off Date and due after the Cut-Off Date) and (ii) with respect
to Actuarial Loans, scheduled monthly payments due on or prior to the Cut-Off
Date), free of all liens.
(n) Upon execution and delivery of the Pooling and Servicing Agreement by
all of the parties thereto, the Trustee will have acquired beneficial ownership
of all of the Depositor's right, title and interest in and to the Mortgage
Loans, and upon delivery to the Underwriters of the Class A Certificates and
payment of the purchase price therefor, the Underwriters will have good and
marketable title to the Class A Certificates, in each case free of all liens.
(o) As of the Closing Date, each of the Mortgage Loans will meet the
eligibility criteria described in the Prospectus and set forth in the Pooling
and Servicing Agreement.
(p) Such Transaction Party will not conduct its operations while any of the
Class A Certificates are outstanding in a manner that would require such
Transaction Party or the Trust to be registered as an "investment company" under
the Investment Company Act of 1940, as amended (the "1940 Act"), as in effect on
the date hereof or require the Trust to be registered under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), as in effect on the date
hereof.
(q) On the Closing Date, the Certificates and the Pooling and Servicing
Agreement will conform in all material respects to the descriptions thereof
contained in the Prospectus.
(r) On the Closing Date, the Class A Certificates shall have been rated
"AAA" by Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. ("Standard & Poor's"), and "Aaa" by ▇▇▇▇▇'▇ Investors Service,
Inc. ("Moody's").
(s) Any taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of the Agreements and the Certificates have
been paid or will be paid at or prior to the Closing Date.
6
(t) On the Closing Date, each of the representations and warranties of the
Master Servicer, the Seller and the Depositor set forth in the Pooling and
Servicing Agreement and the Insurance Agreement will be true and correct in all
material respects.
Section 2. Purchase and Sale. The commitment of the Underwriters to
purchase the Class A Certificates pursuant to this Underwriting Agreement shall
be deemed to have been made on the basis of the representations and warranties
of the Master Servicer, the Seller and the Depositor herein contained and shall
be subject to the terms and conditions herein set forth. The Depositor agrees to
instruct the Trustee to issue, and agrees to sell to the Underwriters, and the
Underwriters agree, severally and not jointly (except as provided in Section 12
hereof), to purchase from the Depositor, at the purchase price for each Class A
Certificate set forth on Schedule A hereto, the respective principal amount of
Class A Certificates set forth opposite the name of such Underwriter on Schedule
A hereto.
Section 3. Delivery and Payment. Payment of the purchase price for, and
delivery of, any Class A Certificates to be purchased by the Underwriters shall
be made at the office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by you and the
Depositor, at 10:00 a.m. (Kansas City time) on October 27, 1999 or at such other
time or date as shall be agreed upon in writing by you and the Depositor (the
"Closing Date"). The Class A Certificates will be delivered in book-entry form
through the facilities of The Depository Trust Company, Cedelbank and the
Euroclear System. Payment shall be made to the Depositor by wire transfer of
same day funds payable to the account of the Depositor. Delivery of the Class A
Certificates shall be made to you for the respective accounts of the
Underwriters against payment of the purchase price thereof. Such Class A
Certificates shall be in such denominations and registered in such names as you
may request in writing at least one Business Day prior to the Closing Date. Such
Class A Certificates, which may be in temporary form, will be made available for
examination by you no later than 3:00 p.m. (New York City time) on the first
Business Day prior to the Closing Date.
Section 4. Offering by the Underwriters. It is understood that the
Underwriters propose to offer the Class A Certificates for sale to the public as
set forth in the Prospectus.
Section 5. Covenants of the Seller, the Depositor and the Master Servicer.
Each of the Master Servicer, the Seller and the Depositor covenants, as to
itself, with each of the Underwriters for so long as the Class A Certificates
are outstanding as follows:
(a) If, at any time when the Prospectus, as amended or supplemented, is
required by the 1933 Act to be delivered in connection with sales of the Class A
Certificates by the Underwriters, any event shall occur or condition exist as a
result of which it is necessary, in the opinion of counsel to the Underwriters
or counsel for the Depositor, to further amend or supplement the Prospectus as
then amended or supplemented in order that the Prospectus as amended or
supplemented will not include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or if it shall be
necessary, in the opinion of any such counsel at any such time, to amend or
supplement the Registration Statement or the Prospectus as then amended or
supplemented in order to comply with the requirements of the 1933 Act or the
Rules and Regulations thereunder, or if required by such Rules and Regulations,
including
7
Rule 430A thereunder, to file a post-effective amendment to such Registration
Statement (including an amended Prospectus), the Depositor will promptly prepare
and file with the Commission such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
or Prospectus comply with such requirements, and within two Business Days will
furnish to the Underwriters as many copies of the Prospectus, as amended or
supplemented, as reasonably requested.
(b) The Depositor will give you reasonable notice of its intention to file
any amendment to the Registration Statement or the Prospectus, as amended or
supplemented, pursuant to the 1933 Act relating to the Class A Certificates,
will furnish you with copies of any such amendment or supplement proposed to be
filed a reasonable time in advance of filing, and will not file any such
amendment or supplement to which you or your counsel shall reasonably object.
(c) The Depositor will notify you immediately, and confirm the notice in
writing, (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the mailing or the delivery to the Commission for filing of
any supplement to the Prospectus or the Prospectus as amended or supplemented,
(iii) of the receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus or the Prospectus as amended or
supplemented, (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information and (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Depositor will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(d) The Depositor will deliver to you as many signed and as many conformed
copies of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus) as you may reasonably
request.
(e) The Depositor will make generally available to holders of the Class A
Certificates as soon as practicable, but in any event not later than 120 days
after the close of the period covered thereby, an earnings statement of the
Trust (which need not be audited) complying with Section 11(a) of the 1933 Act
and the Rules and Regulations (including, at the option of the Seller, Rule 158)
and covering a period of at least twelve consecutive months beginning not later
than the first day of the first fiscal quarter following the Closing Date.
(f) The Depositor will endeavor, in cooperation with you, to qualify the
Class A Certificates for offering and sale under the applicable securities laws
of such states and other jurisdictions of the United States as you may
designate, and will maintain or cause to be maintained such qualifications in
effect for as long as may be required for the distribution of the Class A
Certificates. The Depositor will file or cause the filing of such statements and
reports as may be reasonably required by the laws of each jurisdiction in which
the Class A Certificates have been qualified as above provided.
8
(g) None of the Master Servicer, the Seller or the Depositor will, without
your prior written consent, publicly offer or sell or contract to sell any
mortgage pass-through certificates, mortgage pass-through notes or
collateralized mortgage obligations or other similar securities representing
interests in or secured by other mortgage-related assets originated or owned by
any of them for a period of 30 days following the commencement of the offering
of the Class A Certificates to the public.
(h) So long as the Class A Certificates shall be outstanding, the Depositor
will deliver to the Underwriters the annual statement as to compliance delivered
to the Trustee pursuant to the Pooling and Servicing Agreement and the annual
statement of a firm of independent public accountants furnished to the Trustee
pursuant to the Pooling and Servicing Agreement, as soon as such statements are
furnished to the Trustee.
(i) The Depositor will apply the net proceeds from the sale of the Class A
Certificates in the manner set forth in the Prospectus.
(j) If, between the date hereof and the Closing Date, to the knowledge of
the Master Servicer, the Seller or the Depositor, there are any legal or
governmental proceedings instituted or threatened against such Transaction Party
which could reasonably be expected to materially and adversely affect the
financial condition, shareholders' equity or results of operations of such
Transaction Party, or its ability to perform its obligations under the
Agreements, the Master Servicer, the Seller or the Depositor, as applicable,
will give prompt written notice thereof to the Underwriters.
Section 6. Conditions to the Underwriters' Obligations. The obligations of
the Underwriters to purchase the Class A Certificates pursuant to this
Underwriting Agreement are subject to the accuracy, on and as of the Closing
Date, of the representations and warranties on the part of the Master Servicer,
the Seller and the Depositor herein contained, to the material accuracy of the
statements of officers of the Master Servicer, the Seller and the Depositor,
respectively, made pursuant hereto, to the performance by the Master Servicer,
the Seller and the Depositor of all of their respective obligations hereunder
and to the following conditions at the Closing Date:
(a) (i) The Registration Statement shall have been declared effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission; any price-related information
previously omitted from the effective Registration Statement pursuant to Rule
430A under the 1933 Act shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) under the 1933 Act within the prescribed time period,
and the Depositor shall have provided evidence satisfactory to the Underwriters
of such timely filing, or a post-effective amendment to the Registration
Statement providing such information shall have been promptly filed with the
Commission and declared effective in accordance with the requirements of Rule
430A under the 1933 Act, and prior to the Closing Date the Depositor shall have
provided evidence satisfactory to the Underwriters of such effectiveness; and
(ii) there shall not have come to your attention any facts that would cause you
to believe that the Prospectus, at the time it was required to be delivered to a
purchaser of the Class A Certificates, contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make
9
the statements therein, in the light of the circumstances under which they were
made, not misleading.
(b) The Underwriters shall have received the favorable opinion or opinions,
dated the Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., as special counsel to the
Master Servicer, the Seller and the Depositor (collectively, the "Block
Transaction Parties"), in form and substance satisfactory to the Underwriters,
to the effect that:
(i) The Depositor is a duly incorporated, validly existing corporation
and in good standing under the laws of the State of Delaware. The Master
Servicer is a duly incorporated, validly existing corporation and in good
standing under the laws of the State of Delaware. The Seller is a duly
incorporated, validly existing corporation and in good standing under the
laws of the State of Delaware.
(ii) The Depositor has all requisite power and authority under the
General Corporation Law of the State of Delaware to execute, deliver and
perform its obligations under each of the Pooling and Servicing Agreement,
the Insurance Agreement and the Underwriting Agreement. The Master Servicer has
all requisite power and authority under the General Corporation Law of the State
of Delaware to execute, deliver and perform its obligations under each of the
Agreements. The Seller has all requisite power and authority under the General
Corporation Law of the State of Delaware to execute, deliver and perform its
obligations under the Agreements to which it is a party.
(iii) The execution, delivery and performance of the Underwriting
Agreement have been duly authorized by all requisite corporate action on the
part of the Depositor, and the Underwriting Agreement has been duly executed and
delivered by the Depositor. The execution, delivery and performance of the
Pooling and Servicing Agreement and the Insurance Agreement have been duly
authorized by all requisite corporate action on the part of the Depositor, and
each of the Pooling and Servicing Agreement and the Insurance Agreement has been
duly executed and delivered by the Depositor and is the legal, valid and binding
obligation of the Depositor enforceable against the Depositor in accordance with
its terms. The execution, delivery and performance of each of the Underwriting
Agreement and the Indemnification Agreement have been duly authorized by
all requisite corporate action on the part of the Master Servicer, and the
Underwriting Agreement and the Indemnification Agreement have been duly
executed and delivered by the Master Servicer. The execution, delivery and
performance of the Pooling and Servicing Agreement, the Insurance Agreement and
the Sub-Servicing Agreements have been duly authorized by all requisite
corporate action on the part of the Master Servicer, and each of the Pooling
and Servicing Agreement, the Insurance Agreement and the Sub-Servicing
Agreements has been duly executed and delivered by the Master Servicer and is
the legal, valid and binding obligation of the Master Servicer enforceable
against the Master Servicer in accordance with its terms. The execution,
delivery and performance of each of the Underwriting Agreement and the
Indemnification Agreement have been duly authorized by all requisite corporate
action on the part of the Seller, and each of the Underwriting Agreement and
the Indemnification Agreement has been duly executed a nd delivered by the
Seller. The execution, delivery and performance of the Pooling and Servicing
Agreement and the Insurance Agreement have been duly authorized by all requisite
corporate action on the part of the Seller and each of the Pooling and Servicing
Agreement and the Insurance Agreement has been duly executed and
10
delivered by the Seller and is the legal, valid and binding obligation of
the Seller enforceable against the Seller in accordance with its terms. Such
opinions with respect to the enforceability of such agreements will be subject
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights generally, to general
principles of equity and to the qualifications previously provided by ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ L.L.P. and approved by the counsel to the Underwriters.
(iv) The Depositor's execution, delivery and performance of its
obligations under the Pooling and Servicing Agreement, the Insurance Agreement
and the Underwriting Agreement will not (A) conflict with the Certificate
of Incorporation or By-laws of the Depositor or (B) violate applicable
provisions of federal, Missouri or New York statutory law or regulation or
the General Corporation Law of the State of Delaware, the violation of which
would have a material adverse effect on the ability of the Depositor to
perform its obligations under any of such agreements. The Master Servicer's
execution, delivery and performance of its obligations under the Agreements
will not (A) conflict with the Certificate of Incorporation or Bylaws of the
Master Servicer or (B) violate applicable provisions of federal, Missouri or
New York statutory law or regulation or the General Corporation Law of the State
of Delaware, the violation of which would have a material adverse effect on
the ability of the Master Servicer to perform its obligations under the
Agreements. The Seller's execution, delivery and performance of its obligations
under the Pooling and Servicing Agreement, the Insurance Agreement or the
Underwriting Agreement will not (A) conflict with the Certificate of
Incorporation or Bylaws of the Seller or (B) violate applicable provisions of
federal, Missouri or New York statutory law or regulation or the General
Corporation Law of the State of Delaware, the violation of which would have a
material adverse effect on the ability of the Seller to perform its obligations
under the Pooling and Servicing Agreement, the Insurance Agreement or the
Underwriting Agreement.
(v) To such counsel's knowledge, and based in part upon the Depositor's
written representations to such counsel, the Depositor's execution and delivery
of, and its performance of its obligations under, the Pooling and Servicing
Agreement, the Insurance Agreement and the Underwriting Agreement will not
conflict with, result in a breach or violation of, constitute a default or an
event of acceleration under, or result in the creation or imposition of any
lien, charge or encumbrance upon the property or assets of the Depositor
pursuant to the terms of, (A) any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument known to such counsel to
which the Depositor is a party or by which it or its property is bound or (B)
any order, judgment or decree of any State of Delaware, State of Missouri, State
of New York or United States court, administrative agency or governmental
instrumentality applicable to the Depositor which is known to such counsel, the
conflict with which, or the breach, violation, default, acceleration or creation
or imposition of which, would have a material adverse effect on the ability of
the Depositor to perform its obligations under any of such agreements. To such
counsel's knowledge, and based in part upon the Master Servicer's written
representations to such counsel, the Master Servicer's execution and delivery
of, and its performance of its obligations under, the Agreements will not
conflict with, result in a breach or violation of, constitute a default or an
event of acceleration under, or result in the creation or imposition of any
lien, charge or encumbrance upon the property or assets of the Master Servicer
pursuant to the terms of, (A) any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument known to such counsel to
which the Master Servicer is a party or by which it or its property is bound or
(B) any order, judgment or decree of any State of Delaware,
11
State of Missouri, State of New York or United States court, administrative
agency or governmental instrumentality applicable to the Master Servicer which
is known to such counsel, the conflict with which, or the breach, violation,
default, acceleration or creation or imposition of which, would have a material
adverse effect on the ability of the Master Servicer to perform its obligations
under the Agreements. To such counsel's knowledge, and based in part upon the
Seller's representations to such counsel, the Seller's execution and delivery
of, and its performance of its obligations under, the Pooling and Servicing
Agreement, the Insurance Agreement and the Underwriting Agreement will not
conflict with, result in a breach or violation of, constitute a default or an
event of acceleration under, or result in the creation or imposition of any
lien, charge or encumbrance upon the property or assets of the Seller pursuant
to the terms of, (A) any indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument known to such counsel to which the Seller
is a party or by which it or its property is bound or (B) any order, judgment or
decree of any State of Delaware, State of Missouri, State of New York or United
States court, administrative agency or governmental instrumentality applicable
to the Seller which is known to such counsel, the conflict with which, or the
breach, violation, default, acceleration or creation or imposition of which,
would have a material adverse effect on the ability of the Seller to perform its
obligations under the Pooling and Servicing Agreement, the Insurance Agreement
or the Underwriting Agreement.
(vi) The direction by the Depositor to the Trustee to authenticate,
issue and deliver the Certificates has been duly authorized by the Depositor,
and the Certificates, when duly authorized, authenticated, issued and delivered
by the Trustee and paid for by the Underwriters in accordance with the Pooling
and Servicing Agreement and the Underwriting Agreement, will be validly issued
and outstanding and will be entitled to the benefits provided by the Pooling
and Servicing Agreement.
(vii) To such counsel's knowledge, and based in part upon the
Depositor's written representations to such counsel, the Depositor is not
required to obtain the consent, approval, authorization or order of, or to
register or file with, or to give notice to, any court or governmental agency
or body of the State of Delaware (under the General Corporation Law thereof),
the State of Missouri, the State of New York or the United States of America in
order to execute, deliver, perform and comply with the terms of, or for
the consummation of the transactions of the Depositor contemplated by, the
Pooling and Servicing Agreement, the Insurance Agreement or the Underwriting
Agreement except any consent, approval, authorization, order, registration,
filing or notice (A) as may be required under state securities, real estate
syndication or "blue sky" laws in connection with the offering and sale of the
Class A Certificates (as to which such counsel need express no opinion
whatsoever) or (B) which is a future obligation of the Depositor pursuant to the
terms of the Pooling and Servicing Agreement, the Insurance Agreement or the
Underwriting Agreement, such as, by way of illustration, but not in limitation
of the generality of the foregoing, filing or recording a Uniform Commercial
Code assignment of a financing statement or an assignment of Mortgage with
respect to a Mortgage Loan; or if any such consent, approval, authorization,
order, registration, filing or notice (not described in the exception to the
immediately preceding clause) is required, the Depositor has obtained, made
or given the same. To such counsel's knowledge, and based in part upon the
Master Servicer's written representations to such counsel, the Master Servicer
is not required to obtain the consent, approval, authorization or order of, to
register or file with, or to give notice to, any court or governmental agency or
body of the State of Delaware (under the General
12
Corporation Law thereof), the State of Missouri, the State of New York or the
United States of America in order to execute, deliver, perform and comply with
the terms of, or for the consummation of the transactions of the Master Servicer
contemplated by, the Agreements except any consent, approval, authorization,
order, registration, filing or notice (A) as may be required under state
securities, real estate syndication or "blue sky" laws in connection with the
offering and sale of the Class A Certificates (as to which such counsel need
express no opinion whatsoever) or (B) which is a future obligation of the Master
Servicer pursuant to the terms of an Agreement, such as, by way of illustration,
but not in limitation of the generality of the foregoing, filing or recording a
Uniform Commercial Code assignment of a financing statement or an assignment of
Mortgage with respect to a Mortgage Loan or obtaining a consent, approval or
order in connection with a foreclosure; or if any such consent, approval,
authorization, order, registration, filing or notice (not described in the
exception to the immediately preceding clause) is required, the Master Servicer
has obtained, made or given the same. To such counsel's knowledge, and based in
part upon the Seller's written representations to such counsel, the Seller is
not required to obtain the consent, approval, authorization or order of, to
register or file with, or to give notice to, any court or governmental agency or
body of the State of Delaware (under the General Corporation Law thereof), the
State of Missouri, the State of New York or the United States of America in
order to execute, deliver, perform and comply with the terms of, or for the
consummation of the transactions of the Seller contemplated by, the Pooling and
Servicing Agreement, the Insurance Agreement or the Underwriting Agreement
except any consent, approval, authorization, order, registration, filing or
notice (A) as may be required under state securities, real estate syndication or
"blue sky" laws in connection with the offering and sale of the Class A
Certificates (as to which such counsel need express no opinion whatsoever) or
(B) which is a future obligation of the Seller pursuant to the terms of Pooling
and Servicing Agreement, the Insurance Agreement or the Underwriting Agreement,
such as, by way of illustration, but not in limitation of the generality of the
foregoing, filing or recording a Uniform Commercial Code assignment of a
financing statement or an assignment of Mortgage with respect to a Mortgage
Loan; or if any such consent, approval, authorization, order, registration,
filing or notice (not described in the exception to the immediately preceding
clause) is required, the Seller has obtained, made or given the same.
(viii) The Registration Statement is effective under the 1933 Act, and
to such counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(ix) The conditions to the use by the Depositor of a registration
statement on Form S-3 under the 1933 Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the Registration
Statement. To such counsel's knowledge, and based in part upon the Depositor's
representations to such counsel, there are no contracts or documents of any
of the Transaction Parties which are required to be filed as exhibits to the
Registration Statement pursuant to the 1933 Act or the Rules and Regulations
thereunder which have not been so filed. The statements set forth in the
Prospectus Supplement under the caption "RISK FACTORS -- Uncertainties whether
particular consumer protection laws apply to the mortgage loans", the statements
in each of the Base Prospectus and the Prospectus Supplement under the caption
"ERISA CONSIDERATIONS" and the statements set forth in the Base Prospectus
under the captions "RISK FACTORS -- Legal Considerations" and "CERTAIN LEGAL
ASPECTS OF
13
THE PRIMARY ASSETS", in each case insofar as such statements purport to
summarize matters of state or federal law or legal conclusions with respect
thereto, have been prepared or reviewed by such counsel and provide a fair
summary of such law or conclusions.
(x) To such counsel's knowledge, and based in part upon the
Depositor's representations to such counsel, there are no actions, suits or
proceedings against the Depositor (or to which the property of the Depositor
is subject) pending or overtly threatened in writing before any court,
governmental agency or arbitrator which (A) question, directly or indirectly,
the validity or enforceability of any of the Pooling and Servicing Agreement,
the Insurance Agreement or the Underwriting Agreement, (B) could reasonably
be expected to materially and adversely affect the Depositor's financial
condition, business or properties taken as a whole or the validity or
enforceability of any of such agreements or the Certificates or (C) could
reasonably be expected to materially and adversely affect the ability of the
Depositor to perform its obligations under any of such agreements. To such
counsel's knowledge, and based in part upon the Master Servicer's
representations to such counsel, there are no actions, suits or proceedings
against the Master Servicer (or to which the property of the Master Servicer
is subject) pending or overtly threatened in writing before any court,
governmental agency or arbitrator which (A) question, directly or indirectly,
the validity or enforceability of any of the Agreements, (B) could reasonably be
expected to materially and adversely affect the Master Servicer's financial
condition, business or properties taken as a whole or the validity or
enforceability of any of the Agreements or the Certificates or (C) could
reasonably be expected to materially and adversely affect the ability of the
Master Servicer to perform its obligations under the Agreements. To such
counsel's knowledge, and based in part upon the Seller's representations to such
counsel, there are no actions, suits or proceedings against the Seller (or to
which the property of the Seller is subject) pending or overtly threatened in
writing before any court, governmental agency or arbitrator which (A) question,
directly or indirectly, the validity or enforceability of any of the Pooling and
Servicing Agreement, the Insurance Agreement or the Underwriting Agreement, (B)
could reasonably be expected to materially and adversely affect the Seller's
financial condition, business or properties taken as a whole or the validity or
enforceability of any of such agreements or the Certificates or (C) could
reasonably be expected to materially and adversely affect the ability of the
Seller to perform its obligations under such agreements.
(xi) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act, and neither the Depositor nor the
Trust is required to be registered under the 1940 Act.
(xii) The statements in the Base Prospectus and the Prospectus
Supplement under the headings "Description of the Certificates" and "The
Pooling and Servicing Agreement", insofar as such statements purport to
summarize certain terms of the Class A Certificates and the Pooling and
Servicing Agreement, constitute a fair summary of the provisions purported to be
summarized.
(xiii) In connection with such counsel's participation in the
preparation of the Registration Statement and the Prospectus, such counsel
need not independently verify the accuracy, completeness or fairness of the
statements contained therein, and, without limiting the generality of the
foregoing, such counsel need not, with the opinion recipients' consent, review
14
any loan files relating to the Mortgage Loans. The limitations inherent in such
counsel's participation in the preparation of the Registration Statement and the
Prospectus and the knowledge available to such counsel are such that such
counsel need not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus. On the basis of such counsel's participation in the preparation of
the Registration Statement and the Prospectus as described above and such
counsel's participation in conferences and telephone conversations with
representatives of the Depositor, the Seller, the Master Servicer, the
Underwriters and others at which the contents of the Registration Statement and
the Prospectus were discussed, and relying as to facts necessary to the
determination of materiality, to the extent such counsel may do so in the
exercise of such counsel's professional responsibility, upon the certificates
and statements of officers and other representatives of the Depositor, the
Seller, the Master Servicer and others, such opinion letter will state that no
facts have come to such counsel's attention that lead such counsel to believe
that, as of the date of the Prospectus and the Closing Date, either the
Registration Statement or the Prospectus (excluding any financial or statistical
data contained therein, the sections of the Base Prospectus and the Prospectus
Supplement captioned "FEDERAL INCOME TAX CONSEQUENCES", the section of the Base
Prospectus captioned "PLAN OF DISTRIBUTION" and the sections of the Prospectus
Supplement captioned "SUBSERVICERS", "CERTIFICATE INSURANCE", "UNDERWRITING" and
"REPORT OF EXPERTS", as to which such counsel need not comment) contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
Such counsel's opinion letters may express their reliance as to factual
matters upon the representations and warranties made by the Block Transaction
Parties and on certificates or other documents furnished by officers of the
Block Transaction Parties. In addition to the qualifications with respect to the
enforceability opinions under paragraph (iii) above, the other opinions set
forth in such opinion letters will be subject to such qualifications as ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇ L.L.P. customarily makes with respect to such opinions in the manner
that ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. customarily makes such qualifications.
(c) The Underwriters shall have received the favorable opinion, dated the
Closing Date, of ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, P.C., counsel to CSC, addressed
to the Underwriters and in form and scope satisfactory to counsel to the
Underwriters, to the effect that:
(i) CSC has been organized and is subsisting and in good standing
as a limited liability company under the laws of the State of Georgia, with
the corporate power to conduct its business as described in the Prospectus.
(ii) CSC has the corporate power to enter into the Sub-Servicing
Agreement between the Master Servicer and CSC.
(iii) CSC is duly authorized under relevant statutes, laws and
court decisions to conduct business in the various jurisdictions in which
management has certified that it currently conducts business, except where
failure to be so permitted or failure to be so authorized will not have a
material adverse effect on its business or financial condition.
15
(iv) The Sub-Servicing Agreement between the Master Servicer and CSC
has been duly authorized and, when duly executed and delivered by CSC and
the other parties thereto and when the other parties thereto have duly
authorized and executed such Sub-Servicing Agreement, will be enforceable
against CSC in accordance with its terms.
(v) Except as may be disclosed in such Sub-Servicing Agreement between
the Master Servicer and CSC, the execution and delivery of such Sub-Servicing
Agreement by CSC will not violate any provision of its governing documents, or
to such counsel's knowledge, any statute, order or regulation applicable to CSC
of any court or regulatory body, administrative agency or governmental body
having jurisdiction over CSC.
(vi) To such counsel's knowledge, there are no actions, proceedings
or investigations pending before, or threatened by, any court, administrative
agency or other tribunal to which CSC is a party or of which any of its property
is the subject which, if determined adversely to CSC, (A) would have a material
adverse effect on the business or financial condition of CSC, (B) asserts the
invalidity of such Sub-Servicing Agreement, (C) seeks to prevent the
consummation by CSC of any of the transactions contemplated by such
Sub-Servicing Agreement, or (D) might materially and adversely affect the
performance by the CSC of its obligations under, or the validity or
enforceability of, such Sub-Servicing Agreement.
Such counsel's opinion letter may express their reliance as to factual
matters upon the representations and warranties made by CSC and on certificates
or other documents furnished by officers of CSC.
(d) The Underwriters shall have received the favorable opinion, dated the
Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel of Fairbanks, addressed to
the Underwriters and in form and scope satisfactory to counsel to the
Underwriters, to the effect that:
(i) Fairbanks has been organized and is subsisting and in good
standing as a corporation under the laws of the State of Utah, with the
corporate power to conduct its business as described in the Prospectus.
(ii) Fairbanks has the corporate power to enter into the
Sub-Servicing Agreement between the Master Servicer and Fairbanks.
(iii) Fairbanks is duly authorized under relevant statutes, laws and
court decisions to conduct business in the various jurisdictions in
which management has certified that it currently conducts business, except where
failure to be so permitted or failure to be so authorized will not have
a material adverse effect on its business or financial condition.
(iv) The Sub-Servicing Agreement between the Master Servicer and
Fairbanks has been duly authorized and, when duly executed and delivered
by Fairbanks and the other parties thereto and when the other parties
thereto have duly authorized and executed such Sub-Servicing Agreement,
will be enforceable against Fairbanks in accordance with its terms.
(v) Except as may be disclosed in the Sub-Servicing Agreement between
the Master Servicer and Fairbanks, the execution and delivery of such
Sub-Servicing Agreement by Fairbanks will not violate any provision of its
governing documents, or to such counsel's
16
knowledge, any statute, order or regulation applicable to Fairbanks of any court
or regulatory body, administrative agency or governmental body having
jurisdiction over Fairbanks.
(vi) To such counsel's knowledge, there are no actions, proceedings
or investigations pending before, or threatened by, any court, administrative
agency or other tribunal to which Fairbanks is a party or of which any of its
property is the subject which (A) if determined adversely to Fairbanks, would
have a material adverse effect on the business or financial condition of
Fairbanks, (B) asserts the invalidity of such Sub-Servicing Agreement, (C) seeks
to prevent the consummation by Fairbanks of any of the transactions contemplated
by such Sub-Servicing Agreement, or (D) might materially and adversely affect
the performance by the Fairbanks of its obligations under, or the validity or
enforceability of, such Sub-Servicing Agreement.
Such counsel's opinion letter may express their reliance as to factual
matters upon the representations and warranties made by Fairbanks and on
certificates or other documents furnished by officers of Fairbanks.
(e) The Underwriters shall have received the favorable opinion, dated the
Closing Date, of in-house counsel to the Trustee, addressed to the Underwriters
and in form and scope satisfactory to counsel to the Underwriters, to the effect
that:
(i) The Trustee has duly authorized, executed and delivered the Pooling
and Servicing Agreement and the Insurance Agreement, which constitute the valid
and legally binding agreements of the Trustee and are enforceable against
the Trustee in accordance with their terms, subject, as to enforcement of
remedies, (A) to applicable bankruptcy, insolvency, reorganization and other
similar laws affecting the rights of creditors generally and (B) to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(ii) The Trustee has duly executed and countersigned the Certificates
issued on the date thereof on behalf of the Trust.
(iii) The execution and delivery by the Trustee of the Pooling
and Servicing Agreement and the Insurance Agreement and the performance by
the Trustee of its obligations thereunder do not conflict with or result
in a violation of the Articles of Association or Bylaws of the Trustee.
(iv) The Trustee has full power and authority to execute and deliver
the Pooling and Servicing Agreement and the Insurance Agreement and to perform
its obligations thereunder.
(v) To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened against or affecting the
Trustee before or by any court, arbitrator, administrative agency or other
governmental authority which, if adversely decided, would materially and
adversely affect the ability of the Trustee to carry out the transactions
contemplated in the Pooling and Servicing Agreement and the Insurance Agreement.
17
(vi) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body of the
United States of America or any state thereof is required for the execution,
delivery or performance by the Trustee of the Pooling and Servicing Agreement
and the Insurance Agreement.
(f) The Underwriters shall have received the favorable opinion or opinions,
dated the Closing Date, of Brown & Wood LLP, as counsel for the Underwriters,
with respect to the issuance of the Class A Certificates and the sale of the
Class A Certificates to the Underwriters, the Registration Statement, this
Underwriting Agreement, the Prospectus and such other related matters as the
Underwriters may require.
(g) The Underwriters shall have received the favorable opinion, dated the
Closing Date, of ▇▇▇▇▇ ▇▇▇▇, special counsel for the Certificate Insurer, in
form and scope satisfactory to counsel for the Underwriters, to the effect that:
(i) The Certificate Insurer is a stock insurance corporation,
duly incorporatedand validly existing under the laws of the State of New York.
The Certificate Insurer is validly licensed and authorized to issue each of
the Policies and perform its obligations under each of the Policies in
accordance with the terms thereof, under the laws of the State of New York.
(ii) The execution and delivery by the Certificate Insurer of each of
the Policies, the Insurance Agreement and the Indemnification Agreement are
within the corporate powers of the Certificate Insurer and have been authorized
by all necessary corporate action on the part of the Certificate Insurer; each
of the Policies has been duly executed and is the valid and binding obligation
of the Certificate Insurer enforceable in accordance with its terms except that
the enforcement of the Policies may be limited by laws relating to bankruptcy,
insolvency, reorganization, moratorium, receivership and other similar laws
affecting creditors' rights generally and by general principles of equity.
(iii) The Certificate Insurer is authorized to deliver the Insurance
Agreement and the Indemnification Agreement and each of the Insurance Agreement
and the Indemnification Agreement has been duly executed and is a valid and
binding obligation of the Certificate Insurer enforceable in accordance with its
terms except that the enforcement of the Insurance Agreement and the
Indemnification Agreement may be limited by laws relating to bankruptcy,
insolvency, reorganization, moratorium, receivership and other similar laws
affecting creditors' rights generally and by general principles of equity and,
in the case of the Insurance Indemnification Agreement, public policy
considerations as to rights of indemnification for violations of federal and
state securities laws.
(iv) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required on the part of the
Certificate Insurer, the lack of which would adversely affect the validity or
enforceability of any of the Policies, the Insurance Agreement or the
Indemnification Agreement; to the extent required by applicable legal
requirements that would adversely affect the validity or enforceability of
either of the Policies, the form of each of the Policies has been filed with,
and approved by, all governmental authorities having jurisdiction over the
Certificate Insurer in connection with the Policies.
18
(v) To the extent that either of the Policies constitutes a security
within the meaning of Section 2(1) of the 1933 Act, it is a security that is
exempt from the registration requirements of the 1933 Act.
(vi) The information set forth under the caption "CERTIFICATE
INSURANCE" in the Prospectus Supplement, insofar as such statements constitute
a description of the Policies, accurately summarizes the Policies.
(h) The Underwriters shall have received an opinion, dated the Closing
Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. as counsel to the Master Servicer, the Seller
and the Depositor, addressed to the Certificate Insurer, the Trustee, Standard &
Poor's, ▇▇▇▇▇'▇ and the Underwriters, relating to the true sale of the Mortgage
Loans (i) by the Seller to the Depositor and (ii) by the Depositor to the
Trustee.
(i) Each of the Transaction Parties shall have furnished to the
Underwriters a certificate signed on behalf of such Transaction Party by an
accounting or financial officer thereof, dated the Closing Date, as to (i) the
accuracy of the representations and warranties herein of such Transaction Party
at and as of the Closing Date; (ii) there being no legal or governmental
proceedings pending, other than those, if any, referred to in the Prospectus or
the Prospectus as amended or supplemented, as the case may be, to which such
Transaction Party is a party or of which any property of such Transaction Party
is the subject, which, in the judgment of such Transaction Party, have a
reasonable likelihood of resulting in a material adverse change in the financial
condition, shareholders' equity or results of operations of such Transaction
Party or having a material adverse effect on the ability to perform its
obligations under the Agreements; and to the best knowledge of each such
Transaction Party, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; (iii) the performance by such
Transaction Party of all of its respective obligations hereunder to be performed
at or prior to the Closing Date; and (iv) such other matters as you may
reasonably request.
(j) The Trustee shall have furnished to the Underwriters a certificate of
the Trustee, signed by one or more duly authorized officers of the Trustee,
dated the Closing Date, as to the due authorization, execution and delivery of
the Pooling and Servicing Agreement by the Trustee and the acceptance by the
Trustee of the trust created by the Pooling and Servicing Agreement and the due
execution and delivery of the Certificates by the Trustee thereunder and such
other matters as you shall reasonably request.
(k) The Indemnification Agreement shall have been entered into by the
Certificate Insurer, the Seller, the Master Servicer and the Underwriters, in
which the Certificate Insurer will represent to the Underwriters, among other
representations, that (i) the information under the captions "CERTIFICATE
INSURANCE" (the "Insurer Information") in the Prospectus Supplement was approved
by the Certificate Insurer and is limited and does not purport to provide the
scope of disclosure required to be included in a prospectus for a registrant
under the 1933 Act, in connection with the public offer and sale of securities
of such registrant. Within such limited scope of disclosure, the Insurer
Information does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and (ii) there has
been no
19
change in the financial condition of the Certificate Insurer since September 30,
1998 which would have a material adverse effect on the Certificate Insurer's
ability to meet its obligations under the Policies; and the Indemnification
Agreement shall contain provisions, reasonably satisfactory to the Underwriters,
for the indemnification of the Underwriters.
(l) The Policies shall have been issued by the Certificate Insurer pursuant
to the Insurance Agreement and shall have been duly countersigned by an
authorized agent of the Certificate Insurer, if so required under applicable
state law or regulation.
(m) The Class A Certificates shall have been rated "AAA" by Standard &
Poor's and "Aaa" by ▇▇▇▇▇'▇.
(n) Counsel to the Transaction Parties shall have furnished to the
Underwriters any opinions supplied to Standard & Poor's, ▇▇▇▇▇'▇ or the
Certificate Insurer relating to the Class A Certificates and such opinions shall
state that the Underwriters may rely thereon.
(o) The Underwriters shall have received from each of Deloitte & Touche LLP
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP , certified public accountants, a letter, dated as of
the date of the Prospectus Supplement, in the form heretofore agreed to.
(p) Prior to the Closing Date, Brown & Wood LLP, as counsel for the
Underwriters, shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance of the Class A Certificates and the sale of the Class A Certificates to
the Underwriters as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Transaction Parties in connection with the issuance
of the Class A Certificates and the sale of the Class A Certificates to the
Underwriters as herein contemplated shall be satisfactory in form and substance
to the Underwriters and Brown & Wood LLP.
(q) Since the respective dates as of which information is given in the
Prospectus, there shall not have been any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
condition, stockholders' equity or results of operations of any of the
Transaction Parties or the Certificate Insurer otherwise than as set forth or
contemplated in the Prospectus, the effect of which is, in the judgment of the
Underwriters, so material and adverse as to make it impracticable or inadvisable
to proceed with the public offering or the delivery of the Class A Certificates
on the terms and in the manner contemplated in the Prospectus.
(r) Subsequent to the execution and delivery of this Underwriting
Agreement, there shall not have occurred any downgrading in the rating of any
securities of the Transaction Parties or the Certificate Insurer, or any public
announcement that any rating organization has under surveillance or review its
rating of any securities of any of the Transaction Parties or the Certificate
Insurer (other than an announcement with positive implications of a possible
upgrade, and no implication of a possible downgrade, of such rating).
(s) Prior to the Closing Date, each of the Transaction Parties shall have
furnished to you such further information, certificates and documents as you may
reasonably request.
20
If any condition specified in this Section 6 shall not have been fulfilled
when and as required to be fulfilled, this Underwriting Agreement may be
terminated by you by notice to the Depositor at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Section 7.
Section 7. Payment of Expenses. Block Financial Corporation agrees to pay
all expenses incident to the performance of its obligations under this
Agreement, including without limitation those related to (i) the filing of the
Registration Statement and all amendments thereto, (ii) the preparation,
issuance and delivery of the Certificates, (iii) the fees and disbursements of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., as special counsel for the Transaction Parties, of
Deloitte & Touche LLP, accountants for the Master Servicer, the Seller, the
Depositor, and CSC, and of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, accountants for Fairbanks, (iv)
the first $10,000 of fees and expenses, of Brown and Wood LLP, as special tax
counsel for the Depositor, (v) the qualification of the Class A Certificates
under state securities and "blue sky" laws and the determination of the
eligibility of the Class A Certificates for investment in accordance with the
provisions of subsection 5(f) of this Underwriting Agreement, including filing
fees, (vi) the printing and delivery to the Underwriters, in such quantities as
you may reasonably request, of copies of the Registration Statement and the
Prospectus and all amendments and supplements thereto, and of any Blue Sky
Survey, (vii) the delivery to the Underwriters, in such quantities as you may
reasonably request, of copies of the Agreements, (viii) the fees charged by
nationally recognized statistical rating agencies for rating the Class A
Certificates, (ix) the reasonable fees and expenses of the Trustee and its
counsel and (x) the reasonable fees and expenses of the Certificate Insurer and
its counsel.
If this Underwriting Agreement is terminated by you in accordance with the
provisions of Section 6, the Master Servicer, the Seller and the Depositor shall
reimburse you for all reasonable out-of-pocket expenses, including the fees and
disbursements of Brown & Wood llp, as counsel for the Underwriters.
Section 8. Indemnification. (a) Block Financial Corporation and the
Depositor jointly and severally agree to indemnify and hold harmless the
Underwriters and each Person, if any, that controls the Underwriters within the
meaning of Section 15 of the 1933 Act or Section 20 of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the information deemed to be a part of the
Registration Statement pursuant to Rule 430A under the 1933 Act, if applicable,
or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, unless such untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity with
written information furnished to the Depositor by the Underwriters or the
Certificate Insurer expressly for use in the Registration Statement (or any
amendment thereto);
21
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Depositor; and
(iii) against any and all reasonable expense whatsoever (including
the reasonable fees and disbursements of counsel chosen by you) as reasonably
incurred in investigating, preparing to defend or defending against or appearing
as a third party witness with respect to any litigation or investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, as such expense is incurred and to the
extent that any such expense is not paid under (i) or (ii) above.
This indemnity will be in addition to any liability which any of the
Master Servicer, the Seller or the Depositor may otherwise have.
(b) (i) Each of the Underwriters severally and not jointly agrees to
indemnify and hold harmless Block Financial Corporation and the Depositor, each
of their directors, each of their officers who signed the Registration
Statement, and each Person, if any, that controls Block Financial Corporation
and/or the Depositor within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense, as incurred, described in the indemnity contained in subsection (a)(i)
of this Section 8, arising out of any untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the Seller
and/or to the Depositor by such Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto). The parties acknowledge that the Underwriter
Information constitutes the only information furnished in writing by the
Underwriters for inclusion in the Registration Statement or the Prospectus.
(ii) Each Underwriter individually agrees to indemnify and hold
harmless each indemnified party against any and all loss, liability, claim,
damage and expense, as incurred, described in the indemnity contained in
subsection (b)(i) of this Section 8, arising out of any untrue statements or
omissions, or alleged untrue statements or omissions, made in the Computational
Materials (as defined below) prepared and used by such Underwriter; provided,
however, that such Computational Materials shall not include any Mortgage Loan
Information (as defined below) or any errors in the mathematical calculations
reflected in such Computational Materials to the extent such errors result from
such Mortgage Loan Information; and provided, further, that any such omission
or alleged omission relating to the Computational Materials shall be determined
by reading such Computational Materials in conjunction with the Prospectus
as an integral document and in light of the circumstances under which such
statements in the Computational Materials and the Prospectus were made.
"Computational Materials" shall mean the "Computational Materials" as defined
in the No-Action Letter of May 20, 1994 issued by the Commission to ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇,
22
Peabody & Co. Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation, the
No-Action Letter of May 27, 1994 issued by the Commission to the Public
Securities Association and the No-Action Letter of March 9, 1995 issued by the
Commission to the Public Securities Association (the "SEC No-Action Letters").
"Computational Materials" shall include only those Computational Materials that
have been prepared or delivered to prospective investors by or at the direction
of the Underwriters. In connection with the use of Computational Materials, the
Underwriters shall comply with all applicable requirements of the SEC No-Action
Letters. "Mortgage Loan Information" shall mean information relating to the
Mortgage Loans furnished by the Depositor, the Master Servicer or the Seller to
any of the Underwriters upon which the mathematical calculations reflected in
the Computational Materials of the Underwriters are based. All information
included in the Computational Materials shall be generated based on
substantially the same methodology and assumptions that are used to generate the
information in the Prospectus Supplement as set forth therein; provided,
however, that the Computational Materials may include information based on
alternative methodologies or assumptions if specified therein. The Depositor
will timely file with the Commission in current reports on Form 8-K under the
1934 Act all information with respect to the Certificates which constitutes
Computational Materials, in accordance with and in the time frames set forth in
the SEC No-Action Letters; and provided, further, that the Depositor shall not
be obligated to file any Computational Materials with the Commission that (i) in
the reasonable determination of the Depositor and the Underwriters are not
required to be filed pursuant to the SEC No-Action Letters or (ii) have been
determined to contain any material error or omission, provided that, at the
request of an Underwriter, the Depositor will file Computational Materials that
contain a material error or omission if clearly marked "superseded by materials
dated [________]" and accompanied by corrected Computational Materials that are
marked "material previously dated [_________], as corrected".
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it with respect to which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have hereunder unless it has been
materially prejudiced by such failure to notify or from any liability which it
may have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of more
than one counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, unless (i) if the defendants
in any such action include one or more of the indemnified parties and the
indemnifying party, and one or more of the indemnified parties shall have
employed separate counsel after having reasonably concluded that there may be
legal defenses available to it or them that are different from or additional to
those available to the indemnifying party or to one or more of the other
indemnified parties or (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the commencement of
the action.
Section 9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, Block Financial Corporation
and the Depositor, on the one hand, and the Underwriters, on the
23
other, shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by said indemnity agreement incurred by
Block Financial Corporation and/or the Depositor and one or more of the
Underwriters (i) in such proportion as shall be appropriate to reflect the
relative benefits to Block Financial Corporation and the Depositor, on the one
hand, and the Underwriters, on the other, in connection with the matter to which
the indemnification relates, which relative benefits shall be deemed to be such
that the Underwriters shall be responsible for that portion represented by the
percentage that the underwriting discount on the cover of the Prospectus on the
Closing Date bears to the initial public offering price for the Class A
Certificates as set forth thereon, and Block Financial Corporation and the
Depositor shall be jointly and severally responsible for the balance or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law
or otherwise prohibited hereby, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of Block Financial Corporation and the Depositor, on the one
hand, and the Underwriters or Underwriter, as applicable, on the other, in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, or actions in respect thereof, as well as any
other relevant equitable considerations; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by Block Financial Corporation or
the Depositor, on the one hand, or the Underwriters, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. Block Financial
Corporation, the Depositor and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 9 were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to in the first sentence of this
Section 9. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
the first sentence of this Section 9 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating, preparing to defend or defending against any action or claim that
is the subject of this Section 9. Notwithstanding the provisions of this Section
9, no Underwriter shall be required to contribute any amount in excess of the
amount by which the total underwriting commission received by such Underwriter
for the sale of the Class A Certificates underwritten by such Underwriter and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. The Underwriters' obligations in this
Section 9 to contribute are several in proportion to their respective
underwriting obligations and not joint. Each party entitled to contribution
agrees that upon the service of a summons or other initial legal process upon it
in any action instituted against it in respect to which contribution may be
sought, it shall promptly give written notice of such service to the party or
parties from whom contribution may be sought, but the omission so to notify such
party or parties of any such service shall not relieve the party from whom
contribution may be sought for any obligation it may have hereunder or otherwise
(except as specifically provided in Section 8 hereof). For purposes of this
Section 9, each Person, if any, that controls any Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to
24
contribution as such Underwriter, and each respective director of Block
Financial Corporation and/or the Depositor, each respective officer of Block
Financial Corporation and/or the Depositor who signed the Registration
Statement, and each Person, if any, that controls Block Financial Corporation
and/or the Depositor within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as Block Financial
Corporation and/or the Depositor.
Section 10. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Underwriting
Agreement or any statement set forth in any of the certificates of officers of
the Master Servicer, the Seller or the Depositor submitted pursuant hereto shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Underwriters or controlling Person thereof, or by or
on behalf of the Master Servicer, the Seller or the Depositor and shall survive
delivery of any Class A Certificates to the Underwriters.
Section 11. Termination of Agreement. This Underwriting Agreement shall be
subject to termination by notice given by you to the Depositor if (i) any
change, or any development involving a prospective change, in or affecting
particularly the business or properties of the Trust, any of the Transaction
Parties or the Certificate Insurer which, in your judgment, materially impairs
the investment quality of the Class A Certificates or makes it impractical or
inadvisable to market the Class A Certificates; (ii) any downgrading in the
rating of any securities of the Trust, any of the Transaction Parties or the
Certificate Insurer by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the 1933 Act), or
any public announcement that any such organization has under surveillance or
review its rating of any securities of the Trust, any of the Transaction Parties
or the Certificate Insurer (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange; (iv) any suspension of trading of any
securities of the Trust, any of the Transaction Parties or the Certificate
Insurer on any exchange or in the over-the-counter market; (v) any banking
moratorium declared by federal or New York authorities; or (vi) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by Congress, or any other substantial national or
international calamity or emergency if, in your judgment, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the Class
A Certificates. In the event of any such termination, the covenant set forth in
subsection 5(b), the provisions of Section 7, the indemnity agreement set forth
in Section 8, and the provisions of Sections 9 and 14 shall remain in effect.
Section 12. Default by One of the Underwriters. If one of the Underwriters
participating in the public offering of the Class A Certificates shall fail on
the Closing Date to purchase the Class A Certificates which it is obligated to
purchase hereunder (the "Defaulted Certificates"), then the non-defaulting
Underwriters shall have the right, within 24 hours thereafter, to make
arrangements for them, or any other underwriter, to purchase all, but not fewer
than all, of the Defaulted Certificates in such amounts as may be agreed upon
and upon the terms herein set forth. If, however, you have not completed such
arrangements within such 24-hour period, then:
25
(i) if the aggregate principal amount of the Defaulted Certificates
does not exceed 10% of the aggregate principal amount of the Class A
Certificates to be purchased pursuant to this Underwriting Agreement, the
non-defaulting Underwriters named in this Underwriting Agreement shall be
obligated to purchase the full amount thereof, or
(ii) if the aggregate principal amount of the Defaulted Certificates
exceeds 10% of the aggregate principal amount of the Class A Certificates to be
purchased pursuant to this Underwriting Agreement, this Underwriting Agreement
shall terminate, without any liability on the part of the non-defaulting
Underwriters.
No action taken pursuant to this Section 12 shall relieve the defaulting
Underwriter from the liability with respect to any default of such Underwriter
under this Underwriting Agreement.
In the event of a default by any Underwriters as set forth in this Section
12, either you or the Seller shall have the right to postpone the Closing Date
for a period not exceeding five Business Days in order that any required changes
in the Registration Statement or Prospectus or in any other documents or
arrangements may be effected.
26
Section 13. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Chase Securities Inc., as Representative of
the several Underwriters, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇. Notices to the Master Servicer, the Seller
or the Depositor shall be directed to Block Mortgage Finance, Inc., ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, to the attention of the Vice
President, with a copy to the Treasurer.
Section 14. Parties. This Underwriting Agreement shall inure to the benefit
of and be binding upon the Underwriters, the Master Servicer, the Seller and the
Depositor, and their respective successors. Nothing expressed or mentioned in
this Underwriting Agreement is intended nor shall it be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or with respect to this Underwriting
Agreement or any provision herein contained. This Underwriting Agreement and all
conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives (to
the extent of their rights as specified herein) and except as provided above for
the benefit of no other person, firm or corporation. No purchaser of the Class A
Certificates from the Underwriters shall be deemed to be a successor by reason
merely of such purchase.
Section 15. Governing Law and Time. This Underwriting Agreement shall be
governed by the law of the State of New York and shall be construed in
accordance with such law applicable to agreements made and to be performed
therein, without giving effect to the conflicts of laws principles thereof.
Specified times of day refer to New York City time.
Section 16. Counterparts. This Underwriting Agreement may be executed in
counterparts, each of which shall constitute an original of any party whose
signature appears on it, and all of which shall together constitute a single
instrument.
27
If the foregoing is in accordance with the Underwriters' understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement among the
Underwriters, the Master Servicer, the Seller and the Depositor in accordance
with its terms.
Very truly yours,
BLOCK MORTGAGE FINANCE, INC. as Depositor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
COMPANION MORTGAGE CORPORATION, as Seller
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
BLOCK FINANCIAL CORPORATION, as Master Servicer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
28
CONFIRMED AND ACCEPTED, as of
the date first above written:
CHASE SECURITIES INC.
as Representative of the Underwriters
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
29
Schedule A
Underwriting
Class Class
Underwriter Class A-1 Class A-2 A-3 A-4
Certificates Certificates Certificates Certificates
Chase Securities Inc.
Certificate Balance (1)...$12,750,000 $9,500,000 $6,293,000 $3,171,500
Price to Public...........99.92212%(▇) ▇▇.▇▇▇▇▇%(▇) ▇▇.▇▇▇▇▇%(▇) ▇▇.▇▇▇▇▇%(2)
Underwriting Discount... 0.200% 0.375% 0.631% 0.600%
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc.
Certificate Balance (1)...$12,750,000 $9,500,000 $6,293,000 $3,171,500
Price to Public...........99.92212%(▇) ▇▇.▇▇▇▇▇%(▇) ▇▇.▇▇▇▇▇%(▇) ▇▇.▇▇▇▇▇%(2)
Underwriting Discount... 0.200% 0.375% 0.631% 0.600%
Class Class
A-5 A-6
Certificates Certificates
Chase Securities Inc.
Certificate Balance(1)... $19,750,000 $27,652,000
Price to Public.......... 99.91570%(▇) ▇▇▇.▇▇▇▇▇%(3)
Underwriting Discount.... 0.200% 0.425%
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc.
Certificate Balance (1)...$19,750,000 $27,652,000
Price to Public...........99.91570%(▇) ▇▇▇.▇▇▇▇▇%(3)
Underwriting Discount 0.200% 0.425%
_____________________
(1) Subject to a permitted variance of plus or minus 5%, dependent upon the
principal balance of the Mortgage Loans as of the Cut-Off Date in the Trust Fund
on the Closing Date. (2) Not including accrued interest from October 1, 1999.
(3) Plus accrued interest, if any, from October 27, 1999.
