February 27, 2004
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. Standard & Poor's, A Division of The
1401 Dove Street McGraw-Hill Companies, Inc.
Newport Beach, California 92660 55 Water Street, 41st Floor
New York, New York 10041
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Opinion: Underwriting Agreement
Impac Secured Assets Corp.
Mortgage Pass-Through Certificates, Series 2004-1
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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
February 1, 2004 (the "Seller Sale Agreement"), among the Seller, the Depositor
and IMH, (ii) the Pooling and Servicing Agreement, dated as of February 1, 2004
(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 2004-1 (collectively, the "Certificates"),
(iii) the Underwriting Agreement, dated February 25, 2004 (the "Underwriting
Agreement"), among the Seller, the Depositor, IMH and Deutsche Bank Securities
Inc. (the "Underwriter") pursuant to which certain Certificates were sold (the
"Publicly Offered Certificates"), (iv) the Purchase Agreement, dated February
27, 2004 (the "Purchase Agreement"), among the Seller, the Depositor, IMH and
the Underwriter (the "Purchaser") pursuant to which certain Certificates were
sold (the "Privately Offered Certificates"; together with the Publicly Offered
Certificates, the "Offered Certificates:), (v) the Prospectus Supplement, dated
February 25, 2004 (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 February 27, 2004 (the "Private
Impac Secured Assets Corp., Series 2004-1 Page 2.
February 27, 2004
Placement Memorandum"). The Seller Sale 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 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,
Impac Secured Assets Corp., Series 2004-1 Page 3.
February 27, 2004
relate to or arise from applicable laws, equitable principles and
interpretations thereof.
This opinion letter is based 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 (to the extent that the laws of the State of
New York are designated therein as the governing law thereof),
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 (to
the extent such laws are applicable thereto), 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.
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
Impac Secured Assets Corp., Series 2004-1 Page 4.
February 27, 2004
or State of New York court, agency or other governmental body
under any United States federal or State of New York statute
or regulation applicable to the Agreements, 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 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 "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 purporting to discuss all possible consequences of
investment in the Certificates offered thereby, are correct in
all material respects with respect to those consequences or
matters that are discussed therein.
Impac Secured Assets Corp., Series 2004-1 Page 5.
February 27, 2004
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 Publicly Offered 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 hereon 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 LLP