EXHIBIT 8.1
February 28, 2003
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. Deutsche Bank National Trust Company
1401 Dove Street 1761 East St. Andrews Place
Newport Beach, California 92660 Santa Ana, California 92705-4934
Bear, Stearns & Co. Inc. Standard & Poor's, A Division of the
383 Madison Avenue McGraw-Hill Companies, Inc.
New York, New York 10179 55 Water Street, 41st Floor
New York, New York 10041
Opinion: Underwriting Agreement
Impac Secured Assets Corp.
Mortgage Pass-Through Certificates. Series 2003-1
-------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Impac Funding Corporation (the "Seller"),
Impac Secured Assets Corp. (the "Depositor") and Impac Mortgage Holdings, Inc.
("IMH") in connection with (i) the Mortgage Loan Purchase Agreement, dated as of
February 1, 2003 (the "Mortgage Loan Purchase Agreement"), among the Seller, the
Depositor and IMH, (ii) the Pooling and Servicing Agreement, dated as of
February 1, 2003 (the "Pooling and Servicing Agreement"), among the Seller (in
such capacity, the "Master Servicer"), the Depositor and Deutsche Bank National
Trust Company (the "Trustee"), and the certificates issued pursuant thereto
designated as Mortgage Pass-Through Certificates, Series 2003-1 (collectively,
the "Certificates"), (iii) the Underwriting Agreement, dated February 25, 2003
(the "Underwriting Agreement"), among the Seller, the Depositor, IMH and Bear,
Stearns & Co. Inc. (the "Underwriter") pursuant to which certain Certificates
were sold (the "Underwritten Certificates"), (iv) the Purchase Agreement, dated
February 28, 2003 (the "Purchase Agreement"), among the Seller, the Depositor,
IMH and the Underwriter (the "Purchaser") pursuant to which certain Certificates
were sold (the "Purchased Certificates"), (v) the Prospectus Supplement, dated
February 25, 2003 (the "Prospectus Supplement") and the Base Prospectus to
Impac Secured Assets Corp., Series 2002-3 Page 2.
June 28, 2002
which it relates, dated February 25, 2003 (the "Base Prospectus"; together with
the Prospectus Supplement, the "Prospectus") and (vi) the Private Placement
Memorandum, dated February 28, 2003 (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 or
secured parties, (iii) the effect of certain laws, regulations and judicial and
other decisions upon (a) 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 to judicial jurisdiction, venue
or forum and (b) the enforceability of any provision the violation of which
would not have any material adverse effect on the performance by any party of
its obligations under any agreement, and (iv) public policy considerations
underlying United States and federal securities laws, 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. However, the non-enforceability of any provisions
referred to in foregoing clause (iii) will not, taken as a whole, materially
interfere with the practical realization of the benefits of the rights and
remedies included in any such agreement which is the subject of any opinion
expressed below,
Impac Secured Assets Corp., Series 2002-3 Page 3.
June 28, 2002
except for the consequences of any judicial, administrative, procedural or other
delay which may be imposed by, relate to or arise from applicable laws,
equitable principles and interpretations thereof.
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 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 the 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"). 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 tax opinions set forth below are based upon the existing provisions
of the applicable law and regulations issued or proposed thereunder, published
rulings and releases of the applicable agencies or other governmental bodies and
existing case law, any of which or the effect of any of which could change 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 Agreements to which the Seller, the Depositor or
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 in accordance with
its terms against the Company, Master Servicer or IMH, as the
case may be.
2. The Certificates, assuming the necessary execution,
authentication and delivery thereof and payment therefor in
accordance with the applicable Agreements, are validly issued
and outstanding and are entitled to the benefits of the
Pooling and Servicing Agreement.
Impac Secured Assets Corp., Series 2002-3 Page 4.
June 28, 2002
3. With respect to each of the Seller, the Depositor and IMH, the
performance of its obligations under each of the Agreements to
which it is a party 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 of the United States or such as
have been obtained, effected or given.
4. With respect to each of the Seller, the Depositor and IMH, the
performance of its obligations under each of the Agreements to
which it is a party and the consummation of the transactions
contemplated thereby will not result in 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.
5. 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.
6. 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 the
date 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.
7. 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.
8. The statements made in the Private Placement Memorandum under
the headings "Description of the Privately Offered
Certificates" 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 Private Placement
Memorandum, as the case may be, under the headings "Federal
Income Tax Consequences," and "ERISA Considerations," to the
extent that they constitute matters of United States federal
or State of New York law or legal conclusions with respect
thereto, while not purporting to discuss all possible
Impac Secured Assets Corp., Series 2002-3 Page 5.
June 28, 2002
consequences of investment in the Certificates, are correct in
all material respects with respect to those consequences or
matters that are discussed therein.
9. 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.
10. The 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.
11. Assuming the accuracy of and compliance with the
representations, covenants and other provisions of the
Agreements without any waiver or modification thereof, for
United States federal income tax purposes, each of REMIC 1,
REMIC 2 and REMIC 3 will qualify as a REMIC within the meaning
of the REMIC Provisions of the Code, the Class R-l Interest
will constitute the sole class of "residual interests" in
REMIC 1 and the Class R-2 Interest will constitute the sole
class of "residual interests" in REMIC 2. Each class of
Certificates (other than the Class R Certificates) will
represent ownership of "regular interests" in REMIC 3 and will
generally be treated as debt instruments of REMIC 3 and the
Class R-3 Interest will constitute the sole class of "residual
interests" in REMIC 3, within the meaning of the REMIC
Provisions in effect on the date hereof.
12. Assuming the accuracy of and compliance with the
representations, covenants and other provisions of the
Agreements without any waiver or modification thereof, for
City and State of New York income and corporation franchise
tax purposes, each of REMIC 1, REMIC 2 and REMIC 3 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, REMIC 2 and
REMIC 3 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 2002-3 Page 6.
June 28, 2002
This opinion letter is rendered for the sole benefit of each addressee
hereof with respect to the matters specifically addressed herein, 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 (i)
to any applicable rating agency, institution providing credit enhancement or
liquidity support or governmental authority, (ii) to 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 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 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 such an addressee for which we have acted as
counsel, we are not acting as counsel for such other person or entity and have
not assumed and are not assuming any responsibility to advise such other person
or entity with respect to the adequacy of this opinion letter for its purposes.
Very truly yours,