EXHIBIT 8.1
March 28, 2002
Impac Secured Assets Corp. Impac Funding Corporation
1401 Dove Street 1401 Dove Street
Newport Beach, California 92660 Newport Beach, California 92660
Impac Mortgage Holdings, Inc. Bankers Trust Company of California, N.A.
1401 Dove Street 1761 East St. Andrews Place
Newport Beach, California 92660 Santa Ana, California 92705-4934
Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, New York 10179
Opinion: Underwriting Agreement
Impac Secured Assets Corp.
Mortgage Pass-Through Certificates. Series 2002-2
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Ladies and Gentlemen:
We have represented Impac Secured Assets Corp. (the "Company"), Impac
Funding Corporation (the "Seller") and Impac Mortgage Holdings, Inc. ("IMH") in
connection with (i) the Mortgage Loan Purchase Agreement, dated as of March 1,
2002 (the "Mortgage Loan Purchase Agreement"), among the Seller, the Company and
IMH, (ii) the Pooling and Servicing Agreement, dated as of March 1, 2002 (the
"Pooling and Servicing Agreement"), among the Company, the Seller (in such
capacity, the "Master Servicer") and Bankers Trust Company of California, N.A.
(the "Trustee") and the certificates issued pursuant thereto designated as
Mortgage Pass-Through Certificates, Series 2002-2 (collectively, the
"Certificates"), (iii) the Underwriting Agreement, dated March 25, 2002 (the
"Underwriting Agreement"), among the Company, the Seller, IMH, and Bear, Stearns
& Co. Inc. (the "Underwriter") pursuant to which certain Certificates were sold
(the "Underwritten Certificates"), (iv) the Purchase Agreement, dated March 28,
2002 (the "Purchase Agreement"), among the Company, the Seller, IMH and the
Underwriter (the "Purchaser") pursuant to which certain Certificates were sold
(the "Purchased Certificates"), (v) the Prospectus Supplement, dated March 25,
2002 (the "Prospectus Supplement") and the Base Prospectus to which it relates,
dated March 25, 2001 (the "Base Prospectus"; together with the Prospectus
Supplement,
Impac Secured Assets Corp., Series 2002-2 Page 2.
March 28, 2002
the "Prospectus") and (vi) the Private Placement Memorandum, dated March 28,
2002 (the "Private Placement Memorandum"). The Mortgage Loan Purchase Agreement,
the Pooling and Servicing Agreement, the Underwriting Agreement and the Purchase
Agreement are collectively referred to herein as the "Agreements." Capitalized
terms not defined herein have the meanings assigned to them in the Agreements.
In rendering this opinion letter, as to relevant factual matters we
have examined the documents described above and such other documents as we have
deemed necessary including, where we have deemed appropriate, representations or
certifications of officers of parties thereto or public officials. In rendering
this opinion letter, except for the matters that are specifically addressed in
the opinions expressed below, we have assumed (i) the authenticity of all
documents submitted to us as originals or as copies thereof, and the conformity
to the originals of all documents submitted to us as copies, (ii) the necessary
entity formation and continuing existence in the jurisdiction of formation, and
the necessary licensing and qualification in all jurisdictions, of all parties
to all documents, (iii) the necessary authorization, execution, delivery and
enforceability of all documents, and the necessary entity power with respect
thereto, and (iv) that there is not any other agreement that modifies or
supplements the agreements expressed in any document to which this opinion
letter relates and that renders any of the opinions expressed below inconsistent
with such document as so modified or supplemented. In rendering this opinion
letter, except for the matters that are specifically addressed in the opinions
expressed below, we have made no inquiry, have conducted no investigation and
assume no responsibility with respect to (a) the accuracy of and compliance by
the parties thereto with the representations, warranties and covenants as to
factual matters contained in any document or (b) the conformity of the
underlying assets and related documents to the requirements of any agreement to
which this opinion letter relates.
In rendering this opinion letter, any opinion expressed herein with
respect to the enforceability of any right or obligation is subject to (i)
general principles of equity, including concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of specific
performance and injunctive relief, regardless of whether considered in a
proceeding in equity or at law, (ii) bankruptcy, insolvency, receivership,
reorganization, liquidation, voidable preference, fraudulent conveyance and
transfer, moratorium and other similar laws affecting the rights of creditors
and secured parties, as to which laws we express no opinion herein, (iii) the
effect of certain laws, regulations and judicial and other decisions upon the
availability and enforceability of certain remedies including the remedies of
specific performance and self-help and provisions purporting to waive the
obligation of good faith, materiality, fair dealing, diligence, reasonableness
or objection and (iv) public policy considerations, to the extent that such
public policy considerations limit the enforceability of any provision of any
agreement which purports or is construed to provide indemnification with respect
to securities law violations.
This opinion letter is based solely upon our review of the documents
referred to herein. We have conducted no independent investigation with respect
to the facts contained in such documents and relied upon in rendering this
opinion letter. We also note that we do not represent any of the parties to the
transactions to which this opinion letter relates or any of their affiliates in
connection with matters other than certain transactions. However, the attorneys
in this firm who are directly
Impac Secured Assets Corp., Series 2002-2 Page 3.
March 28, 2002
involved in the representation of parties to the transactions to which this
opinion letter relates have no actual present knowledge of the inaccuracy of any
fact relied upon in rendering this opinion letter. In addition, if we indicate
herein that any opinion is based on our knowledge, our opinion is based solely
on such actual present knowledge of such attorneys.
In rendering this opinion letter, we do not express any opinion
concerning any law other than the laws of the State of New York and the federal
laws of the United States including without limitation the Securities Act of
1933, as amended (the "1933 Act") and Sections 860A through 860G (the "REMIC
Provisions") of the Internal Revenue Code of 1986 (the "Code") applicable to a
real estate mortgage investment conduit ("REMIC") and applicable regulations
thereunder and current judicial and administrative authority with respect
thereto. We do not express any opinion herein with respect to any matter not
specifically addressed in the opinions expressed below, including without
limitation (i) any statute, regulation or provision of law of any county,
municipality or other political subdivision or any agency or instrumentality
thereof or (ii) the securities or tax laws of any jurisdiction.
The federal tax opinions set forth below are based upon the existing
provisions of the Code and Treasury regulations issued or proposed thereunder,
published Revenue Rulings and releases of the Internal Revenue Service and
existing case law, any of which could be changed at any time. Any such changes
may be retroactive in application and could modify the legal conclusions upon
which such opinions are based. The opinions expressed herein are limited as
described below, and we do not express any opinion on any other legal or income
tax aspect of the transactions contemplated by the documents relating to the
transaction.
Based upon and subject to the foregoing, it is our opinion that:
1. Each of the Company and the Master Servicer has been legally
incorporated under the laws of the State of California and IMH
has been legally incorporated under the laws of the State of
Maryland and, based upon a certificate of good standing issued
by each such State, is validly existing as a corporation in
good standing under the laws of that State, and has the
requisite entity power and authority to execute and deliver
the Agreements and to perform its obligations thereunder.
2. The issuance, offer, sale and delivery of the Certificates
have been duly authorized by the Company.
3. Each of the Agreements to which the Company, the Master
Servicer and IMH is a party assuming the necessary
authorization, execution and delivery thereof by the parties
thereto, is a valid and legally binding agreement under the
laws of the State of New York, enforceable thereunder against
the parties thereto in accordance with its terms.
4. The Certificates, assuming the necessary execution,
authentication and delivery thereof and payment therefor in
accordance with the applicable Agreements, are
Impac Secured Assets Corp., Series 2002-2 Page 4.
March 28, 2002
validly issued and outstanding and are entitled to the
benefits of the Pooling and Servicing Agreement.
5. With respect to each of the Company, the Master Servicer and
IMH, the performance of its obligations under the Agreements
and the consummation of the transactions contemplated thereby
do not require any consent, approval, authorization or order
of, filing with or notice to any United States federal or
State of New York court, agency or other governmental body,
except such as may be required under the securities laws of
any State or such as have been obtained, effected or given.
6. With respect to each of the Company, the Master Servicer and
IMH, the performance of its obligations under the Agreements
and the consummation of the transactions contemplated thereby
will not result in (i) to our knowledge, any breach, violation
or acceleration of or default under any indenture or other
material agreement or instrument to which it is a party or by
which it is bound or (ii) any breach or violation of any
United States federal or State of New York statute or
regulation or, to our knowledge, any order of any United
States federal or State of New York court, agency or other
governmental body.
7. The Registration Statement has become effective under the 1933
Act. To 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 1933
Act.
8. The Registration Statement as of its effective date, the date
of the Prospectus Supplement and the date hereof, and the
Prospectus as of the date of the Prospectus Supplement and
hereof, other than any financial and statistical information,
Computational Materials and ABS Term Sheets contained or
incorporated by reference therein as to which we express no
opinion herein, complied as to form in all material respects
with the requirements of the 1933 Act and the applicable rules
and regulations thereunder.
9. To our knowledge, there are no material contracts, indentures
or other documents 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 any Computational Materials and ABS Term
Sheets, as to which we express no opinion herein, and those
described or referred to therein or filed or incorporated by
reference as exhibits thereto.
10. The statements made in the Prospectus Supplement and the Basic
Prospectus under the headings "Description of the
Certificates" and "Description of the Securities," insofar as
such statements purport to summarize certain provisions of the
Certificates and the Pooling and Servicing Agreement, provide
a fair summary of such provisions. The statements made in the
Basic Prospectus and the Prospectus
Impac Secured Assets Corp., Series 2002-2 Page 5.
March 28, 2002
Supplement, as the case may be, under the headings "Certain
Federal Income Tax Consequences," "Certain Legal Aspects of
Mortgage Loans--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 Certificates, are correct in
all material respects with respect to those consequences or
matters that are discussed therein.
11. The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
The Trust Fund created by the Pooling and Servicing Agreement
is not an "investment company" or "controlled by" an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended.
12. The Underwritten Certificates (other than the Class M-2
Certificates and the Class M-3 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 each
such class is rated in one of the two highest rating
categories by at least one "nationally recognized statistical
rating organization" as that term is used in that Section.
13. Assuming compliance with the provisions of the Pooling and
Servicing Agreement, for federal income tax purposes, each of
REMIC 1 and REMIC 2 will qualify as a REMIC within the meaning
of the REMIC Provisions of the Code and the Class R-l Interest
will constitute the sole class of "residual interests" in
REMIC 1. Each class of Certificates (other than the Class R
Certificates and the Class A-IO Certificates) and the Class
A-IO Regular Interest will represent ownership of "regular
interests" in REMIC 2 and will generally be treated as debt
instruments of REMIC 2 and the Class R-2 Interest will
constitute the sole class of "residual interests" in REMIC 2,
within the meaning of the REMIC Provisions in effect on the
date hereof.
14. Assuming compliance with the provisions of the Pooling and
Servicing Agreement, for City and State of New York income and
corporation franchise tax purposes, each of REMIC 1 and REMIC
2 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, each of REMIC 1
and REMIC 2 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.
Impac Secured Assets Corp., Series 2002-2 Page 6.
March 28, 2002
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon. Copies of this
opinion letter may not be made available, and this opinion letter may not be
quoted or referred to in any other document made available, to any other person
or entity except to (i) any applicable rating agency, institution providing
credit enhancement or liquidity support or governmental authority, (ii) any
accountant or attorney for any person or entity entitled hereunder to rely
hereon or to whom or which this opinion letter may be made available as provided
herein and (iii) as otherwise required by law. We assume no obligation to
revise, supplement or withdraw this opinion letter, or otherwise inform any
addressee hereof, or other person or entity entitled to rely hereon, with
respect to any change occurring subsequent to the delivery hereof in any
applicable fact or law or any judicial or administrative interpretation thereof,
even though such change may affect a legal analysis or conclusion contained
herein. In addition, no attorney-client relationship exists or has existed by
reason of this opinion letter between our firm and any addressee hereof or other
person or entity entitled to rely hereon except for any addressee that is
identified in the first paragraph hereof as a person or entity for which we have
acted as counsel in rendering this opinion letter. In permitting reliance hereon
by any person or entity other than an addressee for which we have acted as
counsel, we are not acting as counsel for such other person or entity and have
assumed and are assuming no responsibility to advise such other person or entity
with respect to the adequacy of this opinion letter for its purposes.
Very truly yours,
/s/ Thacher Proffitt & Wood