EXHIBIT 1.1
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WMC SECURED ASSETS CORP.
$____________ (Approximately)
Mortgage Pass-Through Certificates, Series 199_-_
Class R $____________ _____%
Class A $____________ _____%
UNDERWRITING AGREEMENT
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________________, 199_
[UNDERWRITER]
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Ladies and Gentlemen:
WMC Secured Assets Corp., a Delaware corporation (the "Company"),
proposes to sell to you (also referred to herein as the "Underwriter") Mortgage
Pass-Through Certificates, Series 199_-__, Class A and Class R Certificates
other than a de minimis portion thereof (collectively, the "Certificates"),
having the aggregate principal amounts and Pass-Through Rates set forth above.
The Certificates, together with the Class M and Class B Certificates of the same
series, will evidence the entire beneficial interest in the Trust Fund (as
defined in the Pooling and Servicing Agreement referred to below) consisting
primarily of a pool (the "Pool") of conventional, fixed-rate, one- to
four-family residential mortgage loans (the "Mortgage Loans") as described in
the Prospectus Supplement (as hereinafter defined) to be sold by the Company. A
de minimis portion of the Class R Certificates will not be sold hereunder and
will be held by the Trustee.
The Certificates will be issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement") to be dated as of
__________________, 199_ (the "Cut-off Date") among the Company, as seller,
[Name of Master Servicer], as master servicer (the "Master Servicer"), and
___________________________________________, as trustee (the "Trustee"). The
Certificates are described more fully in the Basic Prospectus and the Prospectus
Supplement (each as hereinafter defined) which the Company has furnished to you.
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1. REPRESENTATIONS, WARRANTIES AND COVENANTS.
1.1 The Company represents and warrants to, and agrees
with you that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement (No.
33-_____) on Form S-3 for the registration under the Securities Act of
1933, as amended (the "Act"), of Mortgage Pass-Through Certificates
(issuable in series), including the Certificates, which registration
statement has become effective, and a copy of which, as amended to the
date hereof, has heretofore been delivered to you. The Company proposes
to file with the Commission pursuant to Rule 424(b) under the rules and
regulations of the Commission under the Act (the "1933 Act
Regulations") a supplement dated __________, 199_ (the "Prospectus
Supplement"), to the prospectus dated __________, 199_ (the "Basic
Prospectus"), relating to the Certificates and the method of
distribution thereof. Such registration statement (No. 33-_____)
including exhibits thereto and any information incorporated therein by
reference, as amended at the date hereof, is hereinafter called the
"Registration Statement"; and the Basic Prospectus and the Prospectus
Supplement and any information incorporated therein by reference,
together with any amendment thereof or supplement thereto authorized by
the Company on or prior to the Closing Date for use in connection with
the offering of the Certificates, are hereinafter called the
"Prospectus". Any preliminary form of the Prospectus Supplement which
has heretofore been filed pursuant to Rule 424, or prior to the
effective date of the Registration Statement pursuant to Rule 402(a),
or 424(a) is hereinafter called a "Preliminary Prospectus Supplement."
(b) The Registration Statement has become effective,
and the Registration Statement as of the effective date (the "Effective
Date"), and the Prospectus, as of the date of the Prospectus
Supplement, complied in all material respects with the applicable
requirements of the Act and the 1933 Act Regulations; and the
Registration Statement, as of the Effective Date, did not contain any
untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus, as of the date of
the Prospectus Supplement, did not, and as of the Closing Date will
not, contain an untrue statement of a material fact and did not and
will not 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 Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto relating to the information
identified by underlining or other highlighting as shown in Exhibit E
(the "Excluded Information"); and provided, further, that the Company
makes no representations or warranties as to either (i) any information
in any Computational Materials or ABS Term Sheets (each as hereinafter
defined) required to be provided by the Underwriter to the Company
pursuant to Section 4.2, except to the extent of any information set
forth therein that constitutes Pool Information (as defined below), or
(ii)
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as to any information contained in or omitted from the portions of the
Prospectus identified by underlining or other highlighting as shown in
Exhibit F (the "Underwriter Information"). As used herein, "Pool
Information" means information with respect to the characteristics of
the Mortgage Loans and administrative and servicing fees, as provided
by or on behalf of the Company to the Underwriter in final form and set
forth in the Prospectus Supplement. The Company acknowledges that,
except for any Computational Materials, the Underwriter Information
constitutes the only information furnished in writing by you or on your
behalf for use in connection with the preparation of the Registration
Statement, any preliminary prospectus or the Prospectus, and you
confirm that the Underwriter Information is correct.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has the requisite corporate power to own its properties
and to conduct its business as presently conducted by it.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) As of the Closing Date (as defined herein) the
Certificates will conform in all material respects to the description
thereof contained in the Prospectus and the representations and
warranties of the Company in the Pooling and Servicing Agreement will
be true and correct in all material respects.
1.2 The Underwriter represents and warrants to and agrees with
the Company that:
(a) No purpose of the Underwriter relating to the
purchase of any of the Class R Certificates by the Underwriter is or
will be to enable the Company to impede the assessment or collection of
any tax.
(b) The Underwriter has no present knowledge or
expectation that it will be unable to pay any United States taxes owed
by it so long as any of the Certificates remain outstanding.
(c) The Underwriter has no present knowledge or
expectation that it will become insolvent or subject to a bankruptcy
proceeding for so long as any of the Certificates remain outstanding.
(d) No purpose of the Underwriter relating to any
sale of any of the Class R Certificates by the Underwriter will be to
enable it to impede the assessment or collection of tax. In this
regard, the Underwriter hereby represents to and for the benefit of the
Company that the Underwriter intends to pay taxes associated with
holding the Class
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R Certificates, as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the
Class R Certificates.
(e) The Underwriter will, in connection with any
transfer it makes of any of the Class R Certificates, obtain from its
transferee the affidavit required by Section 5.02(g)(i)(B)(I) of the
Pooling and Servicing Agreement, will not consummate any such transfer
if it knows or believes that any representation contained in such
affidavit is false and will provide the Trustee with the Certificate
required by Section 5.02(g)(i)(B)(II) of the Pooling and Servicing
Agreement.
(f) The Underwriter hereby certifies that (i) with
respect to any classes of Certificates issued in authorized
denominations or Percentage Interests of less than $25,000 or 20%, as
the case may be, the fair market value of each such Certificate sold to
any person on the date of initial sale thereof by the Underwriter will
not be less than $100,000, and (ii) with respect to each class of
Certificates to be maintained on the book-entry records of The
Depository Trust Company ("DTC"), the interest in each such class of
Certificates sold to any person on the date of initial sale thereof by
the Underwriter will not be less than an initial Certificate Principal
Balance of $25,000.
(g) The Underwriter will use its best reasonable
efforts to cause Xxxxx & Co. to issue a commitment letter, prior to the
Closing Date, to DTC stating that Xxxxx & Co. will value the DTC
Registered Certificates (hereinafter defined) on an ongoing basis
subsequent to the Closing Date.
(h) The Underwriter will have funds available at
__________________ _______________, in the Underwriter's account at
such bank at the time all documents are executed and the closing of the
sale of the Certificates is completed, except for the transfer of funds
and the delivery of the Certificates. Such funds will be available for
immediate transfer into the account of the Company maintained at such
bank.
(i) As of the date hereof and as of the Closing Date,
the Underwriter has complied with all of its obligations hereunder
including Section 4.2, and, with respect to all Computational Materials
and ABS Term Sheets provided by the Underwriter to the Company pursuant
to Section 4.2, if any, such Computational Materials and ABS Term
Sheets are accurate in all material respects when read in conjunction
with the Prospectus Supplement (taking into account the assumptions
explicitly set forth in the Computational Materials, except to the
extent of any errors therein that are caused by errors in the Pool
Information). The Computational Materials and ABS Term Sheets provided
by the Underwriter to the Company constitute a complete set of all
Computational Materials and ABS Term Sheets that are required to be
filed with the Commission.
1.3 The Underwriter covenants and agrees to pay directly, or
reimburse the Company upon demand for (i) any and all taxes (including penalties
and interest) owed or asserted to be owed by the Company as a result of a claim
by the Internal Revenue Service that the transfer
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of any of the Class R Certificates to the Underwriter hereunder or any transfer
thereof by the Underwriter may be disregarded for federal tax purposes and (ii)
any and all losses, claims, damages and liabilities, including attorney's fees
and expenses, arising out of any failure of the Underwriter to make payment or
reimbursement in connection with any such assertion as required in (i) above. In
addition, the Underwriter acknowledges that on the Closing Date immediately
after the transactions described herein it will be the owner of the Class R
Certificates for federal tax purposes, and the Underwriter covenants that it
will not assert in any proceeding that the transfer of the Class R Certificates
from the Company to the Underwriter should be disregarded for any purpose.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to you, and you agree to purchase from the Company, the
Certificates (other than for a de minimis portion of the Class R Certificates,
which shall be transferred by the Company to the Trustee) at a price equal to
__________% of the aggregate principal balance of the Certificates as of the
Closing Date. There will be added to the purchase price of the Certificates an
amount equal to interest accrued thereon from the Cut-off Date to but not
including the Closing Date. The purchase price for the Certificates was agreed
to by the Company in reliance upon the transfer from the Company to the
Underwriter of the tax liabilities associated with the ownership of the Class R
Certificates.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Certificates
shall be made at the office of Xxxxxxx Xxxxxxxx & Xxxx at 10:00 a.m., New York
City time, on ______________, 199_ or such later date as you shall designate,
which date and time may be postponed by agreement between you and the Company
(such date and time of delivery and payment for the Certificates being herein
called the "Closing Date"). Delivery of the Certificates (except for the Class R
Certificates (the "Definitive Certificates")) shall be made to you through the
Depository Trust Company ("DTC") (such Certificates, the "DTC Registered
Certificates"), and delivery of the Definitive Certificates shall be made in
registered, certified form, in each case against payment by you of the purchase
price thereof to or upon the order of the Company by wire transfer in
immediately available funds. The Definitive Certificates shall be registered in
such names and in such denominations as you may request not less than two
business days in advance of the Closing Date. The Company agrees to have the
Definitive Certificates available for inspec tion, checking and packaging by you
in New York, New York not later than 1:00 p.m. on the business day prior to the
Closing Date.
4. OFFERING BY UNDERWRITER.
4.1 It is understood that you propose to offer the
Certificates for sale to the public as set forth in the Prospectus and you agree
that all such offers and sales by you shall be made in compliance with all
applicable laws and regulations.
4.2 It is understood that you may prepare and provide to
prospective investors certain Computational Materials (as defined below) in
connection with your offering of the Certificates, subject to the following
conditions:
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(a) The Underwriter shall comply with all applicable
laws and regulations in connection with the use of Computational
Materials, including the No-Action Letter of May 20, 1994 issued by the
Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Xxxxxxx
& Co. Incorporated and Xxxxxx Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association dated May
24, 1994 (collectively, the "Xxxxxx/PSA Letter") as well as the PSA
Letter referred to below. The Underwriter shall comply with all
applicable laws and regulations in connection with the use of ABS Term
Sheets, including the No-Action Letter of February 17, 1995 issued by
the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Xxxxxx/PSA Letter, the "No-Action Letters").
(b) For purposes hereof, "Computational Materials" as
used herein shall have the meaning given such term in the No-Action
Letters, but shall include only those Computational Materials that have
been prepared or delivered to prospective investors by or at the
direction of the Underwriter. For purposes hereof, "ABS Term Sheets"
and "Collateral Term Sheets" as used herein shall have the meanings
given such terms in the PSA Letter but shall include only those ABS
Term Sheets or Collateral Term Sheets that have been prepared or
delivered to prospective investors by or at the direction of the
Underwriter.
(c) All Computational Materials and ABS Term Sheets
provided to prospective investors that are required to be filed
pursuant to the No-Action Letters shall bear a legend on each page
including the following statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY
[Underwriter]. NEITHER THE ISSUER OF THE CERTIFICATES NOR ANY
OF ITS AFFILIATES MAKES ANY REPRESENTATION AS TO THE ACCURACY
OR COMPLETENESS OF THE INFORMATION HEREIN. THE INFORMATION
HEREIN IS PRELIMINARY, AND WILL BE SUPERSEDED BY THE
APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY OTHER INFORMATION
SUBSEQUENTLY FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION.
In the case of Collateral Term Sheets, such legend shall also include
the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE
SUPERSEDED BY THE DESCRIPTION OF THE MORTGAGE
POOL CONTAINED IN THE PROSPECTUS SUPPLEMENT
RELATING TO THE CERTIFICATES AND [Except with respect
to the initial Collateral Term Sheet prepared by the
Underwriter]
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SUPERSEDES ALL INFORMATION CONTAINED IN ANY
COLLATERAL TERM SHEETS RELATING TO THE
MORTGAGE POOL PREVIOUSLY PROVIDED BY [the
Underwriter]."
The Company shall have the right to require additional specific legends
or notations to appear on any Computational Materials or ABS Term
Sheets, the right to require changes regarding the use of terminology
and the right to determine the types of information appearing therein.
Notwithstanding the foregoing, this subsection (c) will be satisfied if
all such Computational Materials and ABS Term Sheets bear a legend in
the form set forth in Exhibit I hereto.
(d) The Underwriter shall provide the Company with
representative forms of all Computational Materials and ABS Term Sheets
prior to their first use, to the extent such forms have not previously
been approved by the Company for use by the Underwriter. The
Underwriter shall provide to the Company, for filing on Form 8-K as
provided in Section 5.9, copies (in such format as required by the
Company) of all Computational Materials that are required to be filed
with the Commission pursuant to the No-Action Letters. The Underwriter
may provide copies of the foregoing in a consolidated or aggregated
form including all information required to be filed. All Computational
Materials and ABS Term Sheets described in this subsection (d) must be
provided to the Company not later than 10:00 a.m. New York time one
business day before filing thereof is required pursuant to the terms of
this Agreement. The Underwriter agrees that it will not provide to any
investor or prospective investor in the Certificates any Computational
Materials or ABS Term Sheets on or after the day on which Computational
Materials and ABS Term Sheets are required to be provided to the
Company pursuant to this Section 4.2(d) (other than copies of
Computational Materials or ABS Term Sheets previously submitted to the
Company in accordance with this Section 4.2(d) for filing pursuant to
Section 5.9), unless such Computational Materials or ABS Term Sheets
are preceded or accompanied by the delivery of a Prospectus to such
investor or prospective investor.
(e) 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 that the
Computational Materials and ABS Term Sheets or ABS Term Sheets, as the
case may be, may include information based on alternative assumptions
if specified therein. If any Computational Materials or ABS Term Sheets
that are required to be filed were based on assumptions with respect to
the Pool that differ from the final Pool Information in any material
respect or on Certificate structuring terms that were revised prior to
the printing of the Prospectus, the Underwriter shall prepare revised
Computational Materials or ABS Term Sheets, as the case may be, based
on the final Pool Information and structuring assumptions, circulate
such revised Computational Materials and ABS Term Sheets to all
recipients of the preliminary versions thereof that indicated orally to
the Underwriter they would purchase all or any portion of the
Certificates and include such revised
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Computational Materials and ABS Term Sheets (marked, "as revised") in
the materials delivered to the Company pursuant to subsection (d)
above.
(f) The Company shall not be obligated to file any
Computational Materials that have been determined to contain any
material error or omission. In the event that any Computational
Materials or ABS Terms Sheets are determined, within the period which
the Prospectus relating to the Certificates is required to be delivered
under the Act, to contain a material error or omission, the Underwriter
shall prepare a corrected version of such Computational Materials or
ABS Term Sheets, shall circulate such corrected Computational Materials
to all recipients of the prior versions thereof that indicated orally
to the Underwriter they would purchase all or any portion of the
Certificates and shall deliver copies of such corrected Computational
Materials and ABS Term Sheets (marked, "as corrected") to the Company
for filing with the Commission in a subsequent Form 8-K submission
(subject to the Company's obtaining an accountant's comfort letter in
respect of such corrected Computational Materials, which shall be at
the expense of the Underwriter), provided that if any such letter is
required to be revised solely because of a change in the Pool
Information, fifty percent of any additional expenses for such letter
resulting from the change in Pool Information shall be paid by each of
the Underwriter and the Company.
(g) If the Underwriter does not provide any
Computational Materials or ABS Term Sheets to the Company pursuant to
subsection (d) above, the Underwriter shall be deemed to have
represented, as of the Closing Date, that it did not provide any
prospective investors with any information in written or electronic
form in connection with the offering of the Certificates that is
required to be filed with the Commission in accordance with the
No-Action Letters, and the Underwriter shall provide the Company with a
certification to that effect on the Closing Date.
(h) In the event of any delay in the delivery by the
Underwriter to the Company of all Computational Materials and ABS Term
Sheets required to be delivered in accordance with subsection (d)
above, or in the delivery of the accountant's comfort letter in respect
thereof pursuant to Section 5.9, the Company shall have the right to
delay the release of the Prospectus to investors or to the Underwriter,
to delay the Closing Date and to take other appropriate actions in each
case as necessary in order to allow the Company to comply with its
agreement set forth in Section 5.9 to file the Computational Materials
and ABS Term Sheets by the time specified therein.
(i) The Underwriter represents that it has in place,
and covenants that it shall maintain internal controls and procedures
which it reasonably believes to be sufficient to ensure full compliance
with all applicable legal requirements of the No-Action Letters with
respect to the generation and use of Computational Materials and ABS
Term Sheets in connection with the offering of the Certificates.
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4.3 You further agree that on or prior to the sixth day after
the Closing Date, you shall provide the Company with a certificate,
substantially in the form of Exhibit G attached hereto, setting forth (i) in the
case of each class of Certificates, (a) if less than 10% of the aggregate
principal balance of such class of Certificates has been sold to the public as
of such date, the value calculated pursuant to clause (b)(iii) of Exhibit G
hereto, or, (b) if 10% or more of such class of Certificates has been sold to
the public as of such date but no single price is paid for at least 10% of the
aggregate principal balance of such class of Certificates, then the weighted
average price at which the Certificates of such class were sold expressed as a
percentage of the principal balance of such class of Certificates sold, or (c)
the first single price at which at least 10% of the aggregate principal balance
of such class of Certificates was sold to the public, (ii) the prepayment
assumption used in pricing each class of Certificates, and (iii) such other
information as to matters of fact as the Company may reasonably request to
enable it to comply with its reporting requirements with respect to each class
of Certificates to the extent such information can in the good faith judgment of
the Underwriter be determined by it.
5. AGREEMENTS. The Company agrees with you that:
5.1 Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Certificates, the Company will
furnish you with a copy of each such proposed amendment or supplement.
5.2 The Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424(b) under the Act
by means reasonably calculated to result in filing with the Commission pursuant
to said rule.
5.3 If, during the period after the first date of the public
offering of the Certificates in which a prospectus relating to the Certificates
is required to be delivered under the Act, any event occurs as a result of which
it is necessary to amend or supplement the Prospectus, as then amended or
supplemented, in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it shall be necessary to amend or supplement the Prospectus to comply with
the Act or the 1933 Act Regulations, the Company promptly will prepare and
furnish, at its own expense, to you, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with law.
5.4 The Company will furnish to you, without charge, a copy of
the Registration Statement (including exhibits thereto) and, so long as delivery
of a prospectus by an underwriter or dealer may be required by the Act, as many
copies of the Prospectus, any documents incorporated by reference therein and
any amendments and supplements thereto as you may reasonably request.
5.5 The Company agrees, so long as the Certificates shall be
outstanding, or until such time as you shall cease to maintain a secondary
market in the Certificates, whichever
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first occurs, to deliver to you the annual statement as to compliance delivered
to the Trustee pursuant to Section 3.18 of the Pooling and Servicing Agreement
and the annual statement of a firm of independent public accountants furnished
to the Trustee pursuant to Section 3.19 of the Pooling and Servicing Agreement,
as soon as such statements are furnished to the Company.
5.6 The Company will endeavor to arrange for the qualification
of the Certificates for sale under the laws of such jurisdictions as you may
reasonably designate and will maintain such qualification in effect so long as
required for the initial distribution of the Certificates; provided, however,
that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
5.7 If the transactions contemplated by this Agreement are
consummated, the Company will pay or cause to be paid all expenses incident to
the performance of the obligations of the Company under this Agreement, and will
reimburse you for any reasonable expenses (including reasonable fees and
disbursements of counsel) reasonably incurred by you in connection with
qualification of the Certificates for sale and determination of their
eligibility for investment under the laws of such jurisdictions as you have
reasonably requested pursuant to Section 5.6 above and the printing of memoranda
relating thereto, for any fees charged by investment rating agencies for the
rating of the Certificates, and for expenses incurred in distributing the
Prospectus (including any amendments and supplements thereto) to the
Underwriter. Except as herein provided, you shall be responsible for paying all
costs and expenses incurred by you, including the fees and disbursements of your
counsel, in connection with the purchase and sale of the Certificates.
5.8 If, during the period after the Closing Date in which a
prospectus relating to the Certificates is required to be delivered under the
Act, the Company receives notice that a stop order suspending the effectiveness
of the Registration Statement or preventing the offer and sale of the
Certificates is in effect, the Company will advise you of the issuance of such
stop order.
5.9 The Company shall file the Computational Materials and ABS
Term Sheets (if any) provided to it by the Underwriter under Section 4.2(d) with
the Commission pursuant to a Current Report on Form 8-K by 10:00 a.m. on the
morning the Prospectus is delivered to the Underwriter or, the case of any
Collateral Term Sheet required to be filed prior to such date, by 10:00 a.m. on
the second business day following the first day on which such Collateral Term
Sheet has been sent to a prospective investor; provided, however, that prior to
such filing of the Computational Materials and ABS Term Sheets (other than any
Collateral Term Sheets that are not based on the Pool Information) by the
Company, the Underwriter must comply with its obligations pursuant to Section
4.2 and the Company must receive a letter from ___________________________,
certified public accountants, satisfactory in form and substance to the Company
and its counsel, to the effect that such accountants have performed certain
specified procedures, all of which have been agreed to by the Company, as a
result of which they determined that all information that is included in the
Computational Materials (if any) provided
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by the Underwriter to the Company for filing on Form 8-K, as provided in Section
4.2 and this Section 5.9, is accurate without exception. The foregoing letter
shall be at the sole expense of the Underwriter. The Company shall file any
corrected Computational Materials described in Section 4.2(f) as soon as
practicable following receipt thereof. The Company also will file with the
Commission within fifteen days of the issuance of the Certificates a Current
Report on Form 8-K (for purposes of filing the Pooling and Servicing Agreement).
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER. The Underwriter's
obligation to purchase the Certificates shall be subject to the following
conditions:
6.1 No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that purpose
shall be pending or, to the knowledge of the Company, threatened by the
Commission; and the Prospectus Supplement shall have been filed or transmitted
for filing, by means reasonably calculated to result in a filing with the
Commission pursuant to Rule 424(b) under the Act.
6.2 Since _________ 1, 199_ there shall have been no material
adverse change (not in the ordinary course of business) in the condition of the
Company.
6.3 The Company shall have delivered to you a certificate,
dated the Closing Date, of the President, a Senior Vice President or a Vice
President of the Company to the effect that the signer of such certificate has
examined this Agreement, the Prospectus, the Pooling and Servicing Agreement and
various other closing documents, and that, to the best of his or her knowledge
after reasonable investigation:
(a) the representations and warranties of the Company
in this Agreement and in the Pooling and Servicing Agreement are true
and correct in all material respects; and
(b) the Company has, in all material respects,
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied hereunder at or prior to the
Closing Date.
6.4 You shall have received the opinions of Xxxxxxx Xxxxxxxx &
Xxxx, counsel for the Company and the Master Servicer, dated the Closing Date
and substantially to the effect set forth in Exhibit A-1 and Exhibit A-2, and
the opinion of [General Counsel to Master Servicer], dated the Closing Date and
substantially to the effect set forth in Exhibit B.
6.5 You shall have received from ________________________,
counsel for the Underwriter, an opinion dated the Closing Date in form and
substance satisfactory to the Underwriter.
6.6 The Underwriter shall have received from
________________________, certified public accountants, a letter dated the date
hereof and satisfactory in form and substance
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to the Underwriter and the Underwriter's counsel, to the effect that they have
performed certain specified procedures, all of which have been agreed to by the
Underwriter, as a result of which they determined that certain information of an
accounting, financial or statistical nature set forth in the Prospectus
Supplement under the captions "Description of the Mortgage Pool", "Pooling and
Servicing Agreement", "Description of the Certificates" and "Certain Yield and
Prepayment Considerations" agrees with the records of the Company excluding any
questions of legal interpretation.
6.7 The Certificates shall have been rated "AAA" by [Standard
& Poor's Ratings Services] and [Fitch Investor's Service, L.P.]
6.8 You shall have received the opinion of [Trustee's
Counsel], dated the Closing Date, substantially to the effect set forth in
Exhibit C.
6.9 You shall have received from Xxxxxxx Xxxxxxxx & Xxxx,
counsel to the Company, reliance letters with respect to any opinions delivered
to Standard & Poor's Ratings Services and Fitch Investor Services, L.P.
The Company will furnish you with conformed copies of the above opinions,
certificates, letters and documents as you reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION.
7.1 The Company agrees to indemnify and hold harmless you and
each person, if any, who controls you within the meaning of either Section 15 of
the Act or Section 20 of the Securities Exchange Act of 1934, from and against
any and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Certificates as originally
filed or in any amendment thereof or other filing incorporated by reference
therein, or in the Prospectus or incorporated by reference therein (if used
within the period set forth in Section 5.3 hereof and as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages, or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
any information with respect to which the Underwriter has agreed to indemnify
the Company pursuant to Section 7.2; provided, that neither the Company, or you
will be liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein relating to the
Excluded Information.
7.2 You agree to indemnify and hold harmless the Company, its
directors or officers and any person controlling the Company to the same extent
as the indemnity set forth in clause 7.1 above from the Company to you, but only
with respect to (i) the Underwriter
-13-
Information and (ii) the Computational Materials and ABS Term Sheets, except to
the extent of any errors in the Computational Materials or ABS Term Sheets that
are caused by errors in the Pool Information. In addition, you agree to
indemnify and hold harmless the Company its directors or officers and any person
controlling the Company against any and all losses, claims, damages, liabilities
and expenses (including, without limitation, reasonable attorneys' fees) caused
by, resulting from, relating to, or based upon any legend regarding original
issue discount on any Certificate resulting from incorrect information provided
by the Underwriter in the certificates described in Section 4.3 hereof.
7.3 In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either clause 7.1 or 7.2, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by you, in the case of parties
indemnified pursuant to clause 7.1 and by the Company, in the case of parties
indemnified pursuant to clause 7.2. The indemnifying party may, at its option,
at any time upon written notice to the indemnified party, assume the defense of
any proceeding and may designate counsel reasonably satisfactory to the
indemnified party in connection therewith provided that the counsel so
designated would have no actual or potential conflict of interest in connection
with such representation. Unless it shall assume the defense of any proceeding
the indemnifying party shall not be liable for any settlement of any proceeding,
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. If the indemnifying party assumes the defense of
any proceeding, it shall be entitled to settle such proceeding with the consent
of the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding
which have been asserted against the indemnified party in such proceeding by the
other parties to such settlement, without the consent of the indemnified party.
7.4 If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under clause 7.1 or 7.2 hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then the indemnifying party, in lieu of indemnifying such
-14-
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities, in
such proportion as is appropriate to reflect not only the relative benefits
received by the Company on the one hand and the Underwriter on the other from
the offering of the Certificates but also the relative fault of the Company on
the one hand and of the Underwriter, on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of the Underwriter on the
other 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 the Company
or by the Underwriter, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
7.5 The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the considerations referred to in clause 7.4, above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in this Section 7 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim except where the indemnified party is
required to bear such expenses pursuant to clause 7.4; which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party believes that it
will be ultimately obligated to pay such expenses. In the event that any
expenses so paid by the indemnifying party are subsequently determined to not be
required to be borne by the indemnifying party hereunder, the party which
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
7.6 The indemnity and contribution agreements contained in
this Section 7 and the representations and warranties of the Company in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the
Underwriter or on behalf of the Underwriter or any person controlling the
Underwriter or by or on behalf of the Company and its respective directors or
officers or any person controlling the Company and (iii) acceptance of and
payment for any of the Certificates.
8. TERMINATION. This Agreement shall be subject to termination by
notice given to the Company, if the sale of the Certificates provided for herein
is not consummated because of any failure or refusal on the part of the Company
to comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform their respective
obligations under this Agreement. If you terminate this Agreement in accordance
with this Section 8, the Company will reimburse you for all reasonable
out-of-pocket expenses
-15-
(including reasonable fees and disbursements of counsel) that shall have been
reasonably incurred by the Underwriter in connection with the proposed purchase
and sale of the Certificates.
9. CERTAIN REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or the officers of the Company, and you set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by you or on your
behalf or made by or on behalf of the Company or any of its officers, directors
or controlling persons, and will survive delivery of and payment for the
Certificates.
10. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriter will be mailed,
delivered or telegraphed and confirmed to you at
________________________________________________________________________,
Attention: ____________________________ or if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at WMC Secured Assets
Corp., 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
12. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
-16-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
WMC SECURED ASSETS CORP.
By:
------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
--------------------------------
By:-----------------------------
Name:
Title:
EXHIBIT A-1
[Xxxxxxx Xxxxxxxx & Xxxx Letterhead]
_________________, 199_
WMC Secured Assets Corp.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
[Name of Master Servicer]
[Address of Master Servicer]
[UNDERWRITER]
--------------------------------
--------------------------------
--------------------------------
[TRUSTEE]
--------------------------------
--------------------------------
--------------------------------
Re: WMC Secured Assets Corp.
Mortgage Pass-through Certificates, Series 199_-____
----------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to WMC Secured Assets Corp. (the
"Company") and [Name of Master Servicer] (the "Master Servicer") in connection
with the issuance and sale by the Company of Mortgage Pass-Through Certificates,
Series 199_- ____ (the "Certificates"), pursuant to a Pooling and Servicing
Agreement, dated as of _______________ 1, 199_ (the "Pooling and Servicing
Agreement"), among the Company, the Master Servicer and ___________________, as
trustee (the "Trustee"). The Certificates consist of ____________ classes
designated as Class A and Class R (collectively, the "Senior Certificates") and
____________ classes of subordinated certificates designated as Class M and
Class B. Only the Senior Certificates and the Class M Certificates
(collectively, the "Offered Certificates") are offered under the Prospectus.
WMC Secured Assets Corp.
[Name of Master Servicer]
__________________, 199_ 2.
The Senior Certificates in the aggregate and the Class M Certificates
will evidence initial undivided interests of approximately _____% and _____%,
respectively, in a trust fund (the "Trust Fund") consisting primarily of a pool
of conventional, fixed-rate, one- to four-family first mortgage loans (the
"Mortgage Loans") held by ______________________________ ______________, as
custodian (the "Custodian"), pursuant to a Custodial Agreement, dated as of
_______________ 1, 199_, among the Company, the Master Servicer, the Custodian
and the Trustee (the "Custodial Agreement").
____________________________________ ("The Purchaser") acquired the Mortgage
Loans through its mortgage loan purchase program from various seller/servicers.
The Purchaser transferred the Mortgage Loans to the Company pursuant to an
Assignment and Assumption Agreement, dated ________, 199_ (the "Assignment and
Assumption Agreement"), in exchange for immediately available funds, the Class M
and Class B Certificates. The Company will sell the Class A and the Class R
Certificates other than a de minimis portion thereof (the "Underwritten
Certificates") to _______________________ (the "Underwriter"), pursuant to an
Underwriting Agreement, dated _______________, 199_, between the Company and the
Underwriter (the "Underwriting Agreement"; the Pooling and Servicing Agreement,
the Custodial Agreement, the Underwriting Agreement and the Assignment and
Assumption Agreement, collectively, the "Agreements"). Capitalized terms used
but not defined herein shall have the meanings set forth in the Agreements. This
opinion letter is rendered pursuant to Section 6.4 of the Underwriting
Agreement.
In connection with rendering this opinion letter, we have examined the
Agreements and such records and other documents as we have deemed necessary. As
to matters of fact, we have examined and relied upon representations of the
parties contained in the Agreements and, where we have deemed appropriate,
representations or certifications of officers of the Company, the Master
Servicer, the Trustee or public officials. We have assumed the authenticity of
all documents submitted to us as originals, the genuineness of all signatures,
the legal capacity of natural persons and the conformity to the originals of all
documents submitted to us as copies. We have assumed that all parties, except
for the Company and the Master Servicer, had the corporate power and authority
to enter into and perform all obligations under such documents. As to such
parties, we also have assumed the due authorization by all requisite corporate
action, the due execution and delivery and the enforceability of such documents.
We have assumed that there is not and will not be any other agreement that
materially supplements or otherwise modifies the agreements expressed in the
Agreements. We have further assumed the conformity of the Mortgage Loans and
related documents to the requirements of the Agreements.
In rendering this opinion letter, we do not express any opinion
concerning any law other than the law of the State of New York and the federal
law of the United States, nor do we express any opinion concerning the
application of the "doing business" laws or the securities laws of any
jurisdiction other than the federal securities laws of the United States. In
rendering the opinion set forth below, as to matters governed by the laws of the
State of California, we have relied without independent investigation on the
opinion letter of [Counsel to Master Servicer], general counsel to the Company
and the Master Servicer, dated the date hereof, a copy of which is
WMC Secured Assets Corp.
[Name of Master Servicer]
__________________, 199_ 3.
annexed hereto. To the extent that we have relied on the foregoing opinion
letter, the opinions set forth below are subject to the same assumptions,
qualifications, exceptions and other limitations set forth therein. We do not
express any opinion on any issue not expressly addressed below.
Based upon the foregoing, it is our opinion that:
1. The Registration Statement has become effective under the
Securities Act of 1933, as amended (the "Act"), and, to the
best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and not withdrawn, and no proceedings for that purpose have
been instituted or threatened under Section 8(d) of the Act.
2. The Registration Statement, at the Effective Date, and the
Prospectus, as of the date of the Prospectus Supplement, other
than any financial or statistical information or Computational
Materials contained or incorporated by reference therein,
complied as to form in all material respects with the
requirements of the Act and the applicable rules and
regulations thereunder.
3. To our knowledge, there are no material contracts, indentures,
or other documents (not including computational materials) of
a character required to be described or referred to in either
the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto.
4. The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement, will be entitled to the benefits of the
Pooling and Servicing Agreement.
5. The statements made in the Prospectus under the heading
"Description of the Certificates", insofar as such
statements purport to summarize certain provisions of the
Offered Certificates and the Pooling and Servicing
Agreement, provide a fair summary of such provisions. The
statements made in the Basic Prospectus and the Prospectus
Supplement, as the case may be, under the headings "Certain
Federal Income Tax Consequences", "Certain Legal Aspects of
Mortgage Loans and Related Matters--Applicability of Usury
Laws", and "--Alternative Mortgage Instruments", and "ERISA
Considerations", to the extent that they constitute matters
of State of New York or federal law or legal conclusions
with respect thereto, while not purporting to discuss all
possible consequences of investment in the Offered
Certificates are correct in all material respects with
respect to those consequences or matters that are discussed
therein.
WMC Secured Assets Corp.
[Name of Master Servicer]
__________________, 199_ 4.
6. Each class of the Senior Certificates and the Class M
Certificates will be "mortgage related securities", as defined
in Section 3(a)(41) of the Securities Exchange Act of 1934, as
amended, so long as such class is rated in one of the two
highest rating categories by at least one nationally
recognized statistical rating organization.
7. The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended,
and the Trust Fund created by the Pooling and Servicing
Agreement is not required to be registered under the
Investment Company Act of 1940, as amended.
8. No consent, approval, authorization or order of any federal or
State of New York court or governmental agency or body is
required for the consummation by the Company or the Master
Servicer of the transactions contemplated by the terms of the
Agreements, except (a) such as have been obtained under the
Act and (b) such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and the offer
and sale of the Underwritten Certificates by the Underwriter,
as to which we express no opinion.
9. Neither the sale of the Underwritten Certificates to the
Underwriter pursuant to the Underwriting Agreement, nor the
consummation of any other of the transactions contemplated by,
or the fulfillment by the Company or the Master Servicer of
the terms of the Agreements, will result in a breach of any
term or provision of any federal or State of New York statute
or regulation or, to the best of our knowledge, conflict with,
result in a breach, violation or acceleration of or constitute
a default under any order of any federal or State of New York
court, regulatory body, administrative agency or governmental
body having jurisdiction over the Company or the Master
Servicer.
10. Each of the Agreements has been duly authorized, executed and
delivered by the Company and the Master Servicer and, upon due
authorization, execution and delivery by the other parties
thereto, each will constitute a valid, legal and binding
agreement of the Company and the Master Servicer, enforceable
against the Company and the Master Servicer in accordance with
its terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the rights of
creditors, (ii) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law, and
(iii) public policy considerations underlying the securities
laws, to the extent that such public policy considerations
limit the enforceability of the provisions of any of the
Agreements which purport to provide indemnification with
respect to securities law violations.
WMC Secured Assets Corp.
[Name of Master Servicer]
__________________, 199_ 5.
11. Assuming compliance with the provisions of the Pooling and
Servicing Agreement, for federal income tax purposes, the
Trust Fund will qualify as a real estate mortgage investment
conduit ("REMIC") within the meaning of Sections 860A through
860G (the "REMIC Provisions") of the Internal Revenue Code of
1986, the Offered Certificates (other than the Class R
Certificates) will be "regular interests" in the Trust Fund
and the Class R Certificates will be the sole class of
"residual interests" in the Trust Fund, within the meaning of
the REMIC Provisions in effect on the date hereof.
12. Assuming compliance with the provisions of the Pooling and
Servicing Agreement, for City and State of New York income and
corporation franchise tax purposes, the Trust Fund will be
classified as a REMIC and not as a corporation, partnership or
trust, in conformity with the federal income tax treatment of
the Trust Fund. Accordingly, the Trust Fund will be exempt
from all City and State of New York taxation imposed on its
income, franchise or capital stock, and its assets will not be
included in the calculation of any franchise tax liability.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon without our
prior written consent. Copies of this opinion letter may not be furnished to any
other person or entity, nor may any portion of this opinion letter be quoted,
circulated or referred to in any other document, without our prior written
consent.
Very truly yours,
XXXXXXX XXXXXXXX & XXXX
By
EXHIBIT A-2
[Xxxxxxx Xxxxxxxx & Xxxx Letterhead]
_________________, 199_
WMC Secured Assets Corp.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
[UNDERWRITER]
--------------------------------
--------------------------------
--------------------------------
[TRUSTEE]
--------------------------------
--------------------------------
--------------------------------
Re: WMC Secured Assets Corp.
Mortgage Pass-Through Certificates,
Series 199_-_____
-----------------------------------
Ladies and Gentlemen:
We have acted as special counsel to WMC Secured Assets Corp. (the
"Company") and [Name of Master Servicer] (the "Master Servicer") in connection
with the issuance and sale by the Company of Mortgage Pass-Through Certificates,
Series 199_-____ (the "Certificates"), pursuant to a Pooling and Servicing
Agreement, dated as of ________________ 1, 199_ (the "Pooling and Servicing
Agreement"), among the Company, the Master Servicer and _____________________ as
trustee (the "Trustee"). The Certificates consist of ____________ classes
designated as Class A and Class R (collectively, the "Senior Certificates") and
____________ classes of subordinated certificates designated as Class M and
Class B.
The Senior Certificates in the aggregate and the Class M Certificates
will evidence initial undivided interests of approximately _____% and _____%,
respectively, in a trust fund (the "Trust Fund") consisting primarily of a pool
of conventional, fixed-rate, one- to four-family first
WMC Secured Assets Corp.
[Underwriter]
[Trustee]
____________________, 199_ 2.
mortgage loans (the "Mortgage Loans") held by ___________________
________________________, as custodian (the "Custodian"), pursuant to a
Custodial Agreement, dated as of ___________ 1, 199_, among the Company, the
Master Servicer, the Custodian and the Trustee (the "Custodial Agreement").
________________________________ ("The Purchaser") acquired the Mortgage Loans
through its mortgage loan purchase program from various seller/servicers. The
Purchaser transferred the Mortgage Loans to the Company pursuant to an
Assignment and Assumption Agreement, dated ______________, 199_ (the "Assignment
and Assumption Agreement"), in exchange for immediately available funds, the
Class M and Class B Certificates and a de minimis portion of the Class R
Certificates. The Company will sell the Class A Certificates and the Class R
Certificates other than a de minimis portion thereof (the "Underwritten
Certificates") to ______________________ (the "Underwriter"), pursuant to an
Underwriting Agreement, dated ______________, 199_, between the Company and the
Underwriter (the "Underwriting Agreement"; the Pooling and Servicing Agreement,
the Custodial Agreement, the Underwriting Agreement and the Assignment and
Assumption Agreement, collectively, the "Agreements"). Capitalized terms used
but not defined herein shall have the meanings set forth in the Agreements. This
letter is rendered pursuant to Section 6.4 of the Underwriting Agreement.
Because the primary purpose of our professional engagement was not to
establish factual matters and because of the wholly or partially non-legal
character of many determinations involved in the preparation of the Registration
Statement and the Prospectus, we are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except to the extent
expressly set forth in paragraph numbered 5 of our opinion letter relating to
certain securities matters, dated the date hereof and addressed to the Company,
the Master Servicer, the Underwriter and the Trustee (the "Closing Opinion"),
and make no representation that we have otherwise independently verified the
accuracy, completeness or fairness of such statements, except as aforesaid. In
particular and without limiting the foregoing, we have not examined any
accounting, financial or statistical records not included in either the
Registration Statement or the Prospectus from which the information and
statements included therein are derived, and we express no belief as to any such
accounting, financial or statistical information contained in either the
Registration Statement or the Prospectus or the information included under the
caption "Method of Distribution" contained in the Prospectus Supplement, or as
to any Computational Materials. We also note that we are not experts with
respect to any portion of the Registration Statement or the Prospectus,
including without limitation such accounting, financial or statistical
information, except to the extent we may be deemed to be "experts" within the
meaning of the Securities Act of 1933 or the rules and regulations thereunder
with respect to the matters specifically mentioned in paragraph numbered 5 of
the Closing Opinion.
However, in the course of our acting as counsel to the Company in
connection with its preparation of the Registration Statement or the Prospectus,
we met in conferences and partici pated in telephone conversations involving
representatives of the Company, representatives of the Master Servicer,
representatives of the Underwriter, representatives of the Trustee,
representatives of the Custodian, _______________ in their capacity as counsel
to the Underwriter, and _______________ in their capacity as counsel to the
Master Servicer, during which conferences and telephone conversations the
contents of the Registration Statement and the Prospectus and related matters
were discussed. In addition, we reviewed the minutes of the Board of Directors
of the Company and of the Master Servicer, which minutes were represented to us
by the Company or the Master Servicer, as applicable, to _________________,
199_, and certain documents furnished to us by the Company and the Master
Servicer or otherwise in our possession. We have not otherwise undertaken any
procedures that were intended or likely to elicit information concerning the
accuracy, completeness or fairness of the statements made in the Registration
Statement or the Prospectus.
Based on the foregoing, our understanding of applicable law and the
experience we have gained in our practice thereunder, we hereby advise the
Underwriter that no information has come to our attention that causes us to
believe that the Registration Statement, as of the Effective Date, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus, as of the date of the Prospectus Supplement and as of
the Closing Date, contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
This letter is rendered for the sole benefit of each addressee hereof,
and no other person or entity is entitled to rely hereon without our prior
written consent. Copies of this letter may not be furnished to any other person
or entity, nor may any portion of this letter be quoted, circulated or referred
to in any other document, without our prior written consent.
Very truly yours,
XXXXXXX XXXXXXXX & XXXX
By
EXHIBIT B
[Counsel to Master Servicer Letterhead]
_________________, 199_
[TRUSTEE]
-------------------------------
-------------------------------
-------------------------------
[UNDERWRITER]
-------------------------------
-------------------------------
-------------------------------
Re: WMC Secured Assets Corp.
Mortgage Pass-Through Certificates, Series 199_-____
----------------------------------------------------
Ladies and Gentlemen:
Our firm is General Counsel to WMC Secured Assets Corp. (the "Company")
and [Name of Master Servicer] (the "Master Servicer"). In that capacity, we are
familiar with the issuance and sale by the Company of Mortgage Pass-Through
Certificates, Series 199_-____ (the "Certifi xxxxx"), pursuant to a Pooling and
Servicing Agreement, dated as of _______________ 1, 199_ (the "Pooling and
Servicing Agreement"), among the Company, the Master Servicer and
_____________________, as trustee (the "Trustee"). The Certificates consist of
____________ classes designated as Class A and Class R (collectively, the
"Senior Certificates") and ____________ classes of subordinated certificates
designated as Class M and Class B. Only the Senior Certificates and the Class M
Certificates (collectively, the "Offered Certificates") are offered under the
Prospectus.
The Senior Certificates in the aggregate and the Class M Certificates
will evidence initial undivided interests of approximately _____% and _____%,
respectively, in a trust fund (the "Trust Fund") consisting primarily of a pool
of conventional, fixed-rate, one- to four-family first mortgage loans (the
"Mortgage Loans") held by _________________________________ ___________, as
custodian (the "Custodian"), pursuant to a Custodial Agreement, dated as of
_____________ 1, 199_, among the Company, the Master Servicer, the Custodian and
the Trustee (the "Custodial Agreement"). The Master Servicer acquired the
Mortgage Loans through its mortgage loan purchase program from various
seller/servicers. The Master Servicer transferred the Mortgage Loans to the
Company pursuant to an Assignment and Assumption Agreement, dated
________________, 199_ (the "Assignment and Assumption Agreement") in exchange
for immediately available funds, the Class M and the Class B Certificates. The
Company will sell the Class A Certificates and the Class R Certificates other
than a de minimis portion thereof (the "Underwritten Certificates") to
_________________________ (the "Underwriter") pursuant to an
[Trustee]
[Underwriter]
____________________, 199_ 2.
Underwriting Agreement, dated _________________, 199_, between the Company and
the Underwriter (the "Underwriting Agreement"; the Pooling and Servicing
Agreement, the Custodial Agreement, the Underwriting Agreement and the
Assignment and Assumption Agreement, collectively, the "Agreements").
Capitalized terms used but not defined herein shall have the meanings set forth
in the Agreements. This opinion letter is rendered pursuant to Section 6.4 of
the Underwriting Agreement.
In connection with rendering this opinion letter, we have examined the
Agreements and such other records and other documents as we have deemed
necessary. As to matters of fact, we have examined and relied upon
representations of the parties contained in the Agreements and, where we have
deemed appropriate, representations and certifications of officers of the
Company, the Master Servicer, the Trustee or public officials. We have assumed
the authenticity of all documents submitted to me as originals, the genuineness
of all signatures, the legal capacity of natural persons and the conformity to
the original of all documents submitted to me as copies. We have assumed that
all parties, except for the Company and the Master Servicer, had the corporate
power and authority to enter into and perform all obligations thereunder. As to
such parties, we also have assumed the due authorization by all requisite
corporate action, the due execution and delivery and the enforceability of such
documents. We have further assumed the conformity of the Mortgage Loans and
related documents to the requirements of the Agreements.
In rendering this opinion letter, we do not express any opinion
concerning law other than the law of the State of ___________, the corporate law
of the State of Delaware and the federal law of the United States, and we do not
express any opinion concerning the application of the "doing business" laws or
the securities laws of any jurisdiction other than the federal securities laws
of the United States. We do not express any opinion on any issue not expressly
addressed below.
Based upon the foregoing, we are of the opinion that:
1. The Company and the Master Servicer are duly incorporated and are
validly existing as corporations in good standing under the laws of the State of
Delaware and the State of __________, respectively, and each has the requisite
power and authority, corporate or other, to own its properties and conduct its
business, as presently conducted by it, and to enter into and perform its
obligations under the Agreements.
2. Each of the Agreements has been duly and validly authorized,
executed and delivered by the Company and the Master Servicer and, upon due
authorization, execution and delivery by other parties thereto, will constitute
the valid, legal and binding agreements of the Company and the Master Servicer,
enforceable against the Company and the Master Servicer in accordance with its
terms, except as enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar laws
affecting the rights of creditors, (ii) general principles of equity, whether
enforcement is sought in a proceeding in equity
[Trustee]
[Underwriter]
____________________, 199_ 3.
or at law, and (iii) public policy considerations underlying the securities
laws, to the extent that such public policy considerations limit the
enforceability of the provisions of the Agreements which purport to provide
indemnification with respect to securities law violations.
3. The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement, will be entitled to the benefits of the Pooling and Servicing
Agreement.
4. No consent, approval, authorization or order of the State of
__________ or federal court or governmental agency or body is required for the
consummation by the Company or the Master Servicer of the transactions
contemplated by the terms of the Agreements, except for those consents,
approvals, authorizations or orders which previously have been obtained.
5. Neither the sale, issuance and delivery of the Underwritten
Certificates as provided in the Agreements, nor the consummation of any other of
the transactions contemplated by, or the fulfillment of any other of the terms
of, the Agreements, will result in a breach of any term or provision of the
charter or bylaws of the Company or the Master Servicer or any State of
Minnesota or federal statute or regulation or conflict with, result in a breach,
violation or acceleration of or constitute a default under the terms of any
indenture or other material agreement or instrument to which the Company or the
Master Servicer is a party or by which it is bound or any order or regulation of
any State of Minnesota or federal court, regulatory body, administrative agency
or governmental body having jurisdiction over the Company or the Master
Servicer.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity, except Xxxxxxx Xxxxxxxx & Xxxx, is
entitled to rely hereon without my prior written consent. Copies of this opinion
letter may not be furnished to any other person or entity, nor may any portion
of this opinion letter be quoted, circulated or referred to in any other
document without my prior written consent.
Very truly yours,
COUNSEL TO MASTER SERVICER
EXHIBIT C
[TRUSTEE'S COUNSEL'S LETTERHEAD]
________________, 199_
[UNDERWRITER]
------------------------------- [Name of Master Servicer]
------------------------------- [Address of Master Servicer]
-------------------------------
WMC Secured Assets Corp. [TRUSTEE]
0000 Xxxxxx Xxxxxx, Xxxxx 1300 ------------------------------
Woodland Hills, California 91367 ------------------------------
Re: WMC Secured Assets Corp.
Mortgage Pass-Through Certificates, Series 199_-____
----------------------------------------------------
Ladies and Gentlemen:
In connection with the issuance of the above-referenced Certificates
pursuant to the Pooling and Servicing Agreement, dated as of ____________ 1,
199_ (the "Pooling and Servicing Agreement"), among WMC Secured Assets Corp., as
Company, [Name of Master Servicer], as Master Servicer and
_____________________, as Trustee (the "Trustee"), we have been asked to furnish
this opinion. Capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Pooling and Servicing Agreement.
In arriving at the opinions expressed below, we have examined and
relied upon the originals or copies, certified or otherwise identified to our
satisfaction, of the Pooling and Servicing Agreement and of such documents,
instruments and certificates, and we have made such investigations of law, as we
have deemed appropriate as the basis for the opinions expressed below. We have
assumed but have not verified that the signatures on all documents that we have
examined are genuine and that each person signing each such document was duly
authorized to sign such document on behalf of the person or entity purported to
be bound thereby.
Based on the foregoing, we are of the opinion that:
1. The Trustee has full corporate power and authority to execute and
deliver the Pooling and Servicing Agreement, the Custodial Agreement
and the Certificates and to perform its obligations under the Pooling
and Servicing Agreement and the Custodial Agreement.
WMC Secured Assets Corp.
____________________, 199_ Page 2.
2. Each of the Pooling and Servicing Agreement and the Custodial
Agreement has been duly authorized, executed and delivered by
the Trustee, and the Trustee has duly executed and delivered
the Certificates as provided in the Pooling and Servicing
Agreement.
3. The Pooling and Servicing Agreement is a legal, valid and
binding obligation of the Trustee, enforceable against the
Trustee in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium,
receivership and similar laws affecting the rights of
creditors generally, and subject, as to enforceability, to
general principles of equity, regardless of whether such
enforcement is considered in a proceeding at law or in equity.
4. In the event that the Master Servicer defaults in its
obligation to make Advances pursuant to Section 4.03(b) of the
Pooling and Servicing Agreement, the Trustee is not, as of the
date hereof, prohibited by any provision of its Restated
Organization Certificate or By-Laws or by any provision of the
banking and trust laws of the State of New York from assuming,
pursuant to Section 7.02 of the Pooling and Servicing
Agreement, the obligation to make such Advances.
We express no opinion as to the laws of any jurisdiction other than the
laws of the State of New York.
We are furnishing this opinion to you solely for your benefit. This
opinion may not be used, circulated, quoted or otherwise referred to for any
other purpose.
Very truly yours,
-------------------------------
EXHIBIT D
EXHIBIT E
Excluded Information
EXHIBIT F
Underwriter Information
WMC Secured Assets Corp.
__________________, 199_ Page 1.
EXHIBIT G
__________________, 199_
WMC Secured Assets Corp.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Re: WMC Secured Assets Corp.,
Mortgage Pass-Through Certificates,
Series 199_- __, Class A and Class R
------------------------------------
Pursuant to Section 4 of the Underwriting Agreement, dated
_______________, 199_, between WMC Secured Assets Corp. and
________________________ (the "Underwriter") relating to the Certificates
referenced above (the "Underwriting Agreement"), the undersigned does hereby
certify that:
(a) The prepayment assumption used in pricing the Certificates was
______% SPA.
(b) Set forth below is (i), the first price, as a percentage of the
principal balance of each class of Certificates, at which 10% of the aggregate
principal balance of each such class of Certificates was sold to the public at a
single price, if applicable, or (ii) if more than 10% of a class of Certificates
have been sold to the public but no single price is paid for at least 10% of the
aggregate principal balance of such class of Certificates, then the weighted
average price at which the Certificates of such class were sold expressed as a
percentage of the principal balance of such class of Certificates, or (iii) if
less than 10% of the aggregate principal balance of a class of Certificates has
been sold to the public, the purchase price for each such class of Certificates
paid by the Underwriter expressed as a percentage of the principal balance of
such class of Certificates calculated by: (1) estimating the fair market value
of each such class of Certificates as of __________________, 199_; (2) adding
such estimated fair market value to the aggregate purchase price of each class
of Certificates described in clause (i) or (ii) above; (3) dividing each of the
fair market values determined in clause (1) by the sum obtained in clause (2);
(4) multiplying the quotient obtained for each class of Certificates in clause
(3) by the purchase price paid by the Underwriter for all the Certificates; and
(5) for each class of Certificates, dividing the product obtained from such
class of Certificates in clause (4) by the original principal balance of such
class of Certificates:
WMC Secured Assets Corp.
__________________, 199_ Page 2.
Class A: __________________
Class R: __________________
[* less than 10% has been sold to the public]
The prices set forth above do not include accrued interest with respect to
periods before closing.
----------------------------------
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
EXHIBIT I
[Form of Legend]
