EXHIBIT 8.1
June 30, 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
UBS Securities LLC Standard & Poor's, A Division of the
1285 Avenue of the Americas McGraw-Hill Companies, Inc.
11th Floor 55 Water Street, 41st Floor
New York, New York 10019 New York, New York 10041
Opinion: Underwriting Agreement
Impac Secured Assets Corp.
Mortgage Pass-Through Certificates. Series 2003-2
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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 June1,
2003 (the "Mortgage Loan Purchase Agreement"), among the Seller, the Depositor
and IMH, (ii) the Pooling and Servicing Agreement, dated as of June 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 2003-2 (collectively, the "Certificates"),
(iii) the Underwriting Agreement, dated June 26, 2003 (the "Underwriting
Agreement"), among the Seller, the Depositor, IMH and UBS Securities LLC (the
"Underwriter") pursuant to which certain Certificates were sold (the
"Underwritten Certificates"), (iv) the Purchase Agreement, dated June 30, 2003
(the "Purchase Agreement"), among the Seller, the Depositor, IMH and the
Underwriter (the "Purchaser") pursuant
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to which certain Certificates were sold (the "Purchased Certificates"), (v) the
Prospectus Supplement, dated June26, 2003 (the "Prospectus Supplement"), and the
Base Prospectus to which it relates, dated February 25, 2003 (the "Base
Prospectus"; together with the Prospectus Supplement, the "Prospectus") and (vi)
the Private Placement Memorandum, dated June 30, 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, with your permission we have assumed, and are
relying thereon without independent investigation, (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
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
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June 30, 2003
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, 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"). 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.
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 other than any party as to which we
opine to that effect herein, 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 Seller, Depositor, Master
Servicer or IMH, as the case may be.
2. The issuance, offer, sale and delivery of the Certificates have been
duly authorized by the Depositor.
3. The Certificates, assuming the necessary execution, authentication and
delivery thereof and payment therefor in accordance with the
applicable Agreements, are valid and legally binding obligations under
the laws of the State of New York, enforceable thereunder in
accordance with their terms against the Depositor, and are entitled to
the benefits of the Pooling and Servicing Agreement.
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June 30, 2003
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 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.
5. 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 (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.
6. 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.
7. The Registration Statement as of 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.
8. 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.
9. The statements made in the Prospectus under the heading "Description
of the 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 Prospectus, under the headings "Federal Income
Tax Consequences""Legal Aspects of Mortgage Loans - Applicability of
Usury Laws," and "--Alternative Mortgage Instruments" 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
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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.
10. 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.
11. 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.
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; provided that none of the foregoing is entitled to
rely on herein unless an addressee hereof. 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,
/s/ Thacher Proffitt & Wood