Exhibit 1.1
IMPAC SECURED ASSETS CORP.
$____________
(Approximately)
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 200_-_
UNDERWRITING AGREEMENT
____________, 200_
[Name of Underwriter]
[Address of Underwriter]
Ladies and Gentlemen:
Impac Secured Assets Corp., a California corporation (the "Company"),
proposes to sell to you (also referred to herein as the "Underwriter") Mortgage
Pass-Through Certificates, Series 200_-_, 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 as 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 one-to four-family, adjustable-rate first
lien and fixed-rate first and second lien 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, dated as of ____________, 200_ (the "Pooling and Servicing
Agreement") to be dated as of __________, 200_ (the "Cut-off Date"), among the
Company, [Impac Funding Corporation], as master servicer ("Impac Funding
Corporation" or the "Master Servicer"), and ____________, as trustee (the
"Trustee"). The Certificates are described more fully in the Base Prospectus and
the Prospectus Supplement (each as hereinafter defined) which the Company has
furnished to you.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS.
1.1 The Company represents and warrants to, and agrees with the
Underwriter as follows:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No.
333-_______) 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 the Underwriter. The
Company meets the requirements and all other conditions have been
satisfied for the use of Form S-3 under the Act. 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 prospectus supplement dated ___________, 200_ (the
"Prospectus Supplement"), to the prospectus dated ____________, 200_
(the "Basic Prospectus"), relating to the Certificates and the method
of distribution thereof. Such registration statement (No. 333-______)
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 __________, 200_ (the "Closing Date") for
use in connection with the offering of the Certificates, are
hereinafter called the "Prospectus". The Company prepared a Free
Writing Prospectus containing substantially all information that will
appear in the Prospectus Supplement and minus specific sections
including the "Method of Distribution" section (such Free Writing
Prospectus, together with the Basic Prospectus, the "Definitive Free
Writing Prospectus").
(b) The Registration Statement has become effective and no
stop order suspending the effectiveness of the Registration Statement
is in effect, no proceedings for such purpose are pending before or
threatened by the Commission, and the Registration Statement as of the
effective date (the "Effective Date", as defined in this paragraph),
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. 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 does not make any representations or
warranties as to any information contained in or omitted from the
portions of the Prospectus. In addition, any Issuer Information (as
defined below) contained in the Definitive Free Writing Prospectus, as
of the date thereof and as of the time of each Contract of Sale
occurring prior to the time that Prospectus Supplement first becomes
available for use by the Underwriter, did not contain an untrue
statement of a material fact and did 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. The Effective
Date shall mean the earlier of the date by which the Prospectus
Supplement is first used and the time of the first Contract of Sale to
which such Prospectus Supplement relates. As used herein, "Pool
Information" means all loan level data 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.
The Company acknowledges that the Underwriter's 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 or
the Prospectus, and you confirm that the Underwriter's Information is
correct with respect to you and the Certificates you underwrite.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of California and has the requisite corporate power and authority to
own its properties and to conduct its business as presently conducted
by it.
(d) The Company is not, as of the date upon which it delivers
the Definitive Free Writing Prospectus, an Ineligible Issuer, as such
term is defined in Rule 405 of the 1933 Act Regulations.
(e) The Company is not in violation of its Certificate of
Incorporation or By Laws or any agreement the violation of which would
have material adverse effect on the Company.
(f) As of the closing date (as defined herein), the
Certificates and the Pooling and Servicing Agreement 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.
(g) Each of the Certificates, when validly executed,
authenticated, issued and delivered in accordance with the Pooling and
Servicing Agreement and paid for in accordance with this Agreement,
will be duly and validly issued and outstanding and entitled to the
benefits and security afforded by the Pooling and Servicing Agreement
and will constitute legal, valid and binding obligations of the trust
enforceable in accordance with its terms and the terms of the Pooling
and Servicing Agreement, except as the same may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by the general
principles of equity.
(h) This Agreement has been duly authorized, executed and
delivered by each of the Company. The Pooling and Servicing Agreement
has been, and as of the Closing Date, each of the other agreements
entered into in connection with the issuance or delivery of the
Certificates or any of the transactions contemplated herein (together
with the Mortgage Loan Purchase Agreement, the Pooling and Servicing
Agreement and this Agreement, the "Transaction Documents") to which the
Company is a party, will have been, duly authorized, executed and
delivered by the Company and will conform in all material respects to
the descriptions thereof contained in the Prospectus and, assuming the
valid execution and delivery thereof by the other parties thereto, each
Transaction Document (other than this Agreement) to which the Company
is a party will constitute a legal, valid and binding agreement of the
Company enforceable in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights generally and by general
principles of equity.
(i) None of the issuance, delivery or sale of the
Certificates, the execution and delivery by the Company of any of the
Transaction Documents, or the consummation of any other of the
transactions contemplated herein, nor compliance with the provisions of
the Transaction Documents, will conflict with or result in the breach
of any material term or provision of the certificate of incorporation
or by-laws of the Company, and the Company is not in breach or
violation of or in default (nor has an event occurred which with notice
or lapse of time or both would constitute a default) under the terms of
(i) any indenture, contract, lease, mortgage, deed of trust, note,
agreement or other evidence of indebtedness or other agreement,
obligation or instrument to which the Company is a party or by which it
or its properties are bound, or (ii) any law, decree, order, rule or
regulation applicable to the Company of any court or supervisory,
regulatory, administrative or governmental agency, body or authority,
or arbitrator having jurisdiction over the Company or its respective
properties, the default in or the breach or violation of which would
have a material adverse effect on the Company, the trust or the
Certificates or on the ability of the Company to perform its respective
obligations under the Transaction Documents to which it is a party; and
neither the delivery of the Certificates, nor the execution and
delivery of the Transaction Documents nor the consummation of any other
of the transactions contemplated herein, nor the compliance with the
provisions of such Transaction Documents will result in such a breach,
violation or default which would have such a material adverse effect.
(j) No filing or registration with, notice to, or consent,
approval, authorization or order or other action of any court or
governmental authority or agency is required for the consummation by
the Company of the transactions contemplated by the Transaction
Documents to which it is a party (other than as required under Blue Sky
laws or state securities laws, as to which no representations and
warranties are made by the Company), except such as have been, or will
have been obtained prior to the Closing Date, and such recordations of
the assignment to the Trustee of the mortgages securing the Mortgage
Loans (to the extent such recordations are required pursuant to the
Pooling and Servicing Agreement) that have not yet been completed.
(k) There is no action, suit or proceeding before or by any
court, administrative or governmental agency now pending to which the
Company is party, or to the best knowledge of the Company, threatened
against the Company, which could reasonably interfere with or
materially and adversely affect the consummation of the transactions
contemplated in the Transaction Documents.
(l) At the time of execution and delivery of the Pooling and
Servicing Agreement, (1) the trust will own the Mortgage Loans being
pledged by it to the Trustee pursuant to the Pooling and Servicing
Agreement, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively,
"Liens"), except to the extent permitted in the Pooling and Servicing
Agreement, and will not have assigned to any person other than the
Trustee any of its right, title or interest in its Mortgage Loans, (2)
the trust will have the power and authority to pledge the Trust Fund to
the Trustee and to transfer the Certificates to the Underwriter and
will have duly authorized such action, (3) upon execution and delivery
by the trust to the Trustee of the Pooling and Servicing Agreement, and
delivery of the Certificates to the trust, the Trustee will have a
valid, perfected security interest of first priority in the Trust Fund
free of Liens other than Liens permitted by the Pooling and Servicing
Agreement and (4) upon payment and delivery of the Certificates to the
Underwriter, the Underwriter will acquire ownership of the
Certificates, free of Liens other than Liens created or granted by the
Underwriter.
(m) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of the Transaction
Documents and the Certificates have been or will be paid by the Company
at or prior to the Closing Date, except for fees for recording
assignments of the mortgages securing the Mortgage Loans to the Trustee
pursuant to the Pooling and Servicing Agreement that have not yet been
completed, which fees will be paid by or on behalf of the Company in
accordance with and if required by the Pooling and Servicing Agreement.
(n) The Company possesses all certificates, licenses,
authorizations and permits issued by the appropriate State, Federal or
foreign regulatory agencies or bodies necessary to conduct the business
now conducted by it and as described in the Prospectus, and the Company
has not received notice of any proceedings relating to the revocation
or modification of any such license, certificate, authority or permit
which if decided adversely to the Company would, singly or in the
aggregate, materially and adversely affect the conduct of its business,
operations or financial conditions.
(o) The Company or any subservicer who will be servicing any
Mortgage Loans pursuant to the Pooling and Servicing Agreement is
qualified to do business and possesses all necessary certificates,
licenses and permits in all jurisdictions in which its activities as
servicer or subservicer of the Mortgage Loans serviced by it require
such qualifications, certificates, licenses or permits except where
failure to be so qualified or to obtain such certificates, licenses or
permits will not have a material adverse effect on such servicing
activities.
(p) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
(q) Since the respective dates as of which information is
given in the Prospectus, there has not been any material adverse change
in the general affairs, management, financial condition, or results of
operations of the Company, otherwise than as set forth or contemplated
in the Prospectus as supplemented or amended as of the Closing Date.
(r) To the best knowledge of the Company, [name of certified
public accountants] are independent public accountants with respect to
the Company as required by the Act and the 1933 Act Regulations.
1.2 The Underwriter represents and warrants to and agrees with the
Company:
(a) Each Certificate is to be maintained on the book-entry
records of The Depository Trust Company ("DTC") and the interest in
each such Certificate sold to any person on the date of initial sale
thereof by the Underwriter will not be less than an initial Certificate
Principal Balance [or Notional Amount] of $[25,000] with respect to the
Certificates.
(b) Such 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 with respect to the generation
and use of Free Writing Prospectuses in connection with the offering of
the Certificates.
(c) As of the date hereof and as of the Closing Date, the
Underwriter has complied with all of its obligations hereunder. With
respect to all Free Writing Prospectuses, other than the Definitive
Free Writing Prospectus, provided by the Underwriter to any investor,
if any, such Free Writing Prospectuses are accurate in all material
respects (taking into account the assumptions explicitly set forth in
the Free Writing Prospectuses, except to the extent of any errors
therein that are caused by errors in the Pool Information, and except
for any Issuer Information therein). The Free Writing Prospectuses,
other than the Definitive Free Writing Prospectus, provided by the
Underwriter to the Company pursuant to Section 4.4 constitute a
complete set of all such Free Writing Prospectuses furnished to any
investor by such Underwriter in connection with the offering of any
Certificates, other than any Underwriter Derived Information.
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 the Underwriter, and the Underwriter agrees to purchase from
the Company, the Certificates set forth opposite their respective names in
Schedule I hereto, at a price equal to $[______________].
3. DELIVERY AND PAYMENT. Payment for the Certificates shall be made by
wire transfer of immediately available funds to an account designated by the
Company, and delivery of the Certificates shall be made at the office of Thacher
Proffitt & Wood LLP. Delivery of and payment for the Certificates shall be made
at 10:00 a.m., New York City time, on _________, 200_, or such later date as the
Underwriter shall designate, which date and time may be postponed by agreement
between the Underwriter and the Company (such date and time of delivery and
payment for the Certificates being herein called the "Closing Date"). Delivery
of the Certificates shall be made to the Underwriter through the Depository
Trust Company ("DTC") against payment by the Underwriter of the purchase price
thereof to or upon the order of the Company by wire transfer of immediately
available funds.
4. OFFERING BY THE UNDERWRITER.
4.1 It is understood that the Underwriter propose to offer the
Certificates for sale to the public as set forth in the Prospectus and that the
Underwriter will not offer, sell or otherwise distribute the Certificates
(except for the sale thereof in exempt transactions) in any state in which the
Certificates are not exempt from registration under Blue Sky laws or state
securities laws (except where the Certificates will have been qualified for
offering and sale at your direction under such Blue Sky laws or state securities
laws). Prior to the date of the first contract of sale made based on the
Definitive Free Writing Prospectus, you have not offered, pledged, sold,
disposed of or otherwise transferred any Certificate or any security backed by
the Mortgage Loans, any interest in any Certificate or such security or any
Mortgage Loan except as set forth in Section 4.2.
4.2 It is understood that the Underwriter will solicit offers to
purchase the Certificates as follows:
(a) Prior to the time you have received the Definitive Free
Writing Prospectus you may, in compliance with the provisions of this
Agreement, solicit offers to purchase Certificates; provided, that you
shall not accept any such offer to purchase a Certificate or any
interest in any Certificate or Mortgage Loan or otherwise enter into
any Contract of Sale for any Certificate, any interest in any
Certificate or any Mortgage Loan prior to the investor's receipt of
Definitive Free Writing Prospectus.
(b) Any Free Writing Prospectus (other than the Definitive
Free Writing Prospectus) relating to the Certificates used by the
Underwriter in compliance with the terms of this Agreement prior to the
time such Underwriter has entered into a Contract of Sale for
Certificates shall prominently set forth substantially the following
statement:
The information in this free writing prospectus is
preliminary, and will be superseded by the Definitive Free
Writing Prospectus. This free writing prospectus is being
delivered to you solely to provide you with information about
the offering of the Certificates referred to in this free
writing prospectus and to solicit an offer to purchase the
Certificates, when, as and if issued. Any such offer to
purchase made by you will not be accepted and will not
constitute a contractual commitment by you to purchase any of
the Certificates until we have accepted your offer to purchase
Certificates. We will not accept any offer by you to purchase
Certificates, and you will not have any contractual commitment
to purchase any of the Certificates until after you have
received the Definitive Free Writing Prospectus. You may
withdraw your offer to purchase Certificates at any time prior
to our acceptance of your offer.
"Written Communication" has the same meaning as that term is defined in Rule
405 of the 1933 Act Regulations.
(c) Any Free Writing Prospectus relating to Certificates and
used by the Underwriter in connection with marketing the Certificates,
including the Definitive Free Writing Prospectus, shall prominently set
forth substantially the following statement:
The Certificates referred to in these materials are being sold
when, as and if issued. You are advised that Certificates may
not be issued that have the characteristics described in these
materials. Our obligation to sell such Certificates to you is
conditioned on the mortgage loans and certificates having the
characteristics described in these materials. If for any
reason we do not deliver such Certificates, we will notify
you, and neither the issuer nor any underwriter will have any
obligation to you to deliver all or any portion of the
Certificates which you have committed to purchase, and none of
the issuer nor any underwriter will be liable for any costs or
damages whatsoever arising from or related to such
non-delivery.
4.3 It is understood that you will not enter into a Contract of Sale
with any investor until the investor has received the Definitive Free Writing
Prospectus. For purposes of this Agreement, Contract of Sale has the same
meaning as in Rule 159 of the 1933 Act Regulations and all Commission guidance
relating to Rule 159, including without limitation the Commission's statement in
Securities Act Release No. 33-8501 that "a contract of sale can occur under the
federal securities laws before there is a bilateral contract under state law,
for example when a purchaser has taken all actions necessary to be bound but a
seller's obligations remain conditional under state law." The Definitive Free
Writing Prospectus shall prominently set forth the following statement:
This Definitive Free Writing Prospectus supersedes the
information in any free writing prospectus previously
delivered in connection with this offering, to the extent that
this Definitive Free Writing Prospectus is inconsistent with
any information in any free writing prospectus delivered in
connection with this offering.
4.4 It is understood that you may prepare and provide to prospective
investors certain Free Writing Prospectuses (as defined below), subject to the
following conditions:
(a) Unless preceded or accompanied by a prospectus satisfying
the requirements of Section 10(a) of the Act, the Underwriter shall not
convey or deliver any Written Communication to any person in connection
with the initial offering of the Certificates, unless such Written
Communication either (i) is made in reliance on Rule 134 under the Act,
(ii) constitutes a prospectus satisfying the requirements of Rule 430B
under the Act, (iii) is the Definitive Free Writing Prospectus, or (iv)
both (1) constitutes a Free Writing Prospectus (as defined below) used
in reliance on Rule 164 and (2) includes only information that is
within the definition of ABS Informational and Computational Materials
as defined in Item 1100 of Regulation AB.
(b) The Underwriter shall comply in all material respects with
all applicable laws and regulations in connection with the use of Free
Writing Prospectuses, including but not limited to Rules 164 and 433 of
the 1933 Act Regulations and all Commission guidance relating to Free
Writing Prospectuses, including but not limited to Commission Release
No. 33-8591.
(c) For purposes hereof, "Free Writing Prospectus" shall have
the meaning given such term in Rules 405 and 433 of the 1933 Act
Regulations. "Issuer Information" shall mean information included in a
Free Writing Prospectus that both (i) is within the types of
information specified in clauses (1) to (5) of footnote 271 of
Commission Release No. 33-8591 (Securities Offering Reform) as shown in
Exhibit D hereto and (ii) has been either prepared by, or has been
reviewed and approved by, the Company as evidenced by oral, electronic
or written communication by it or through its attorneys. "Underwriter
Derived Information" shall refer to information of the type described
in clause (5) of such footnote 271 when prepared by the Underwriter.
(d) All Free Writing Prospectuses provided to prospective
investors, whether or not filed with the Commission, shall bear a
legend on each page including the following statement:
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT
(INCLUDING A PROSPECTUS) WITH THE SEC FOR THE
OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE
YOU INVEST, YOU SHOULD READ THE PROSPECTUS IN THAT
REGISTRATION STATEMENT AND OTHER DOCUMENTS THE ISSUER
HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION
ABOUT THE ISSUER AND THE OFFERING. YOU MAY GET THESE
DOCUMENTS AT NO CHARGE BY VISITING EDGAR ON THE SEC
WEB SITE AT WWW.SEC.GOV. ALTERNATIVELY, THE ISSUER,
ANY UNDERWRITER OR ANY DEALER PARTICIPATING IN THE
OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS AT
NO CHARGE IF YOU REQUEST IT BY CALLING TOLL-FREE
1-8[XX-XXX-XXXX].
The Company shall have the right to require additional specific legends
or notations to appear on any Free Writing Prospectus, the right to
require changes regarding the use of terminology and the right to
determine the types of information appearing therein.
(e) The Underwriter shall have delivered to the Company, no
later than two business days prior to the proposed date of first use
thereof, (i) any Free Writing Prospectus prepared by or on behalf of
that Underwriter that contains any information that, if reviewed and
approved by the Company, would be Issuer Information, and (ii) any Free
Writing Prospectus or portion thereof that contains only a description
of the final terms of the Certificates after such terms have been
established for all classes of Certificates being publicly offered. No
Information in any Free Writing Prospectus shall consist of information
of a type that is not included within the definition of ABS
Informational and Computational Materials. To facilitate filing to the
extent required by Section 5.10 or 5.11, as applicable, all Underwriter
Derived Information shall be set forth in a document separate from the
document including Issuer Information. All Free Writing Prospectuses
prepared by the Underwriter that are required to be delivered to the
Company under this subsection (e), (i) must be approved by the Company
before such Underwriter provides the Free Writing Prospectus to
investors pursuant to the terms of this Agreement (such approval to be
evidenced as set forth in Section 4.4(c)(ii)), and (ii) shall be
provided by such Underwriter to the Company, for filing as provided in
Section 5.10 in the format as required by the Company.
(f) None of the information in the Free Writing Prospectuses
may conflict with the information contained in the Prospectus or the
Registration Statement.
(g) The Company shall not be obligated to file any Free
Writing Prospectuses that have been determined to contain any material
error or omission, unless the Company is required to file the Free
Writing Prospectus pursuant to Section 5.10 below. In the event that
the Underwriter possesses actual knowledge that, as of the date on
which an investor entered into an agreement to purchase any
Certificates, any Free Writing Prospectus prepared by or on behalf of
such Underwriter and delivered to such investor contained any untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained therein, in light
of the circumstances under which they were made, not misleading (such
Free Writing Prospectus, a "Defective Free Writing Prospectus"), that
Underwriter shall notify the Company thereof as soon as practical but
in any event within one business day after discovery.
(h) If the Underwriter do not provide any Free Writing
Prospectuses to the Company pursuant to subsection (e) above, the
Underwriter shall be deemed to have represented, as of the Closing
Date, that they 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 by the Company as a Free Writing Prospectus (other than the
Definitive Free Writing Prospectus) in accordance with the 1933 Act
Regulations. Information not required to be filed shall include a Free
Writing Prospectus containing solely Underwriter Derived Information.
(i) In the event of any delay in the delivery by the
Underwriter to the Company of any Free Writing Prospectuses required to
be delivered in accordance with subsection (e) above, or in the
delivery of the accountant's comfort letter in respect thereof, 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 5.10 to
file the Free Writing Prospectuses by the time specified therein.
(j) 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 1933 Act Regulations with
respect to the generation and use of Free Writing Prospectuses in
connection with the offering of the Certificates. In addition, the
Underwriter shall, for a period of at least three years after the date
hereof, maintain written and/or electronic records of the following:
(i) Any written communications in respect of the
Certificates not deemed a Prospectus or a Free Writing
Prospectus because its content is limited to the statements
permitted by Rule 134 of the Securities Act;
(ii) any Free Writing Prospectus used to solicit
offers to purchase Certificates;
(iii) regarding each Free Writing Prospectus
delivered to a prospective investor, the date of such delivery
and identity of such prospective investor;
(iv) regarding each offer to purchase Certificates
received by such Underwriter, the identity of the offeror, the
date the offer was made and the proposed terms and allocation
of the Certificates offered to be purchased; and
(v) regarding each Contract of Sale entered into by
such Underwriter, the date, identity of the investor and the
terms of such Contract of Sale, including the amount and price
of Certificates subject to such Contract of Sale.
(k) The Underwriter covenants with the Company that after the
final Prospectus is available that Underwriter shall not distribute any
written information concerning the Certificates to a prospective
investor unless such information is preceded or accompanied by the
final Prospectus.
(l) The Underwriter agrees to provide written notice to the
Company of the date it first enters into any Contract of Sale for a
Certificate.
4.5 The Underwriter further agrees that on or prior to the sixth day
after the Closing Date, such Underwriter shall provide the Company with a
certificate, substantially in the form of Exhibit E attached hereto, setting
forth (i) in the case of each class of Certificates purchased by such
Underwriter, (a) if less than 10% of the aggregate principal balance or notional
amount, as applicable, 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 E
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 or notional amount, as applicable 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 or notional
amount, as applicable, of such class of Certificates sold, or (c) the first
single price at which at least 10% of the aggregate principal balance or
notional amount, as applicable, of such class of Certificates was sold to the
public, (ii) the prepayment assumption used in pricing such 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
such Certificates to the extent such information can in the good faith judgment
of such Underwriter be determined by it.
4.6 The Underwriter further agrees that (i) it will include in every
confirmation sent out the notice required by Rule 173 informing the investor
that the sale was made pursuant to the Registration Statement and that the
investor may request a copy of the Prospectus from such Underwriter; (ii) if a
paper copy of the Prospectus is requested by a person who receives a
confirmation, such Underwriter shall deliver a paper copy of such Prospectus;
(iii) if an electronic copy of the Prospectus is delivered by the Underwriter
for any purpose, such copy shall be the same electronic file containing the
Prospectus in the identical form transmitted electronically to such Underwriter
by or on behalf of the Company specifically for use by such Underwriter pursuant
to this Section 4.6; for example, if the Prospectus is delivered to the
Underwriter by or on behalf of the Company in a single electronic file in .pdf
format, then such Underwriter will deliver the electronic copy of the Prospectus
in the same single electronic file in .pdf format; and (iv) it has not used, and
during the period for which it has an obligation to deliver a "prospectus" (as
defined in Section 2(a)(10) of the Act) relating to the Certificates (including
any period during which you have such delivery obligation in its capacity as a
"dealer" (as defined in Section 2(a)(12) of the Act)) it will not use any
internet website or electronic media containing information for prospective
investors, including any internet website or electronic media maintained by
third parties, in connection with the offering of the Certificates, except in
compliance with applicable laws and regulations. The Underwriter further agrees
that (i) if it delivers to an investor the Prospectus in .pdf format, upon such
Underwriter's receipt of a request from the investor within the period for which
delivery of the Prospectus is required, such Underwriter will promptly deliver
or cause to be delivered to the investor, without charge, a paper copy of the
Prospectus and (ii) it will provide to the Company any Free Writing
Prospectuses, or portions thereof, which the Company is required to file with
the Commission in electronic format and will use reasonable efforts to provide
to the Company such Free Writing Prospectuses, or portions thereof, in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF, except to the
extent that the Company, in its sole discretion, waives such requirements.
4.7 In the event that the Underwriter uses a road show (as defined in
Rule 433) in connection with the offering of the Certificates, all information
in the road show will be provided orally only, and not as a Written
Communication. The Underwriter agrees that any slideshow used in connection with
a road show (i) will only be provided as part of the road show and not
separately, (ii) if handed out at any meeting as a hard copy, will be retrieved
prior to the end of the meeting, and (iii) will otherwise be used only in a
manner that does not cause the slideshow to be treated as a Free Writing
Prospectus.
5. AGREEMENTS. The Company agrees with the Underwriter that:
5.1 The Company will promptly advise the Underwriter (i) when any
amendment to the Registration Statement has become effective or any revision of
or supplement to the Prospectus has been so filed (unless such amendment,
revision or supplement does not relate to the Certificates or the trust), (ii)
of any request by the Commission for any amendment of the Registration Statement
or the Prospectus or for any additional information (unless such request for
additional information does not relate to the Certificates or the trust), (iii)
of any written notification received by the Company of the suspension of
qualification of the Certificates for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose and (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or, to the knowledge of the Company,
the threatening of any proceeding for that purpose. The Company will not file an
amendment to the Registration Statement or supplement to the Prospectus (if such
amendment or supplement relates to the Certificates) unless the Company has
furnished the Underwriter with a copy of such amendment for its review prior to
such filing. The Company will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
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 within the time
period required by said rule. The Company will cause the Prospectus Supplement
to be transmitted to the Commission for filing no later than the close of
business on the business day prior to the Closing Date.
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 and
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 notify the
Underwriter and will prepare and furnish, at its own expense, to the
Underwriter, 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 If the Company or any Underwriter reasonably determines that any
Written Communication or oral statement in connection with the offering of the
Certificates contains an untrue statement of material fact or omits to state a
material fact necessary to make the statements, in light of the circumstances
under which they were made, not misleading at the time that a Contract of Sale
was entered into when taken together with all information that was conveyed to
any person with whom a Contract of Sale was entered into, and then the
Underwriter shall provide any such person with the following:
(a) Adequate disclosure of the contractual arrangement;
(b) Adequate disclosure of the person's rights under the
existing Contract of Sale at the time termination is sought;
(c) Adequate disclosure of the new information that is
necessary to correct the misstatements or omissions in the information
given at the time of the original Contract of Sale; and
(d) A meaningful ability to elect to terminate or not
terminate the prior Contract of Sale and to elect to enter into or not
enter into a new Contract of Sale.
5.5 The Company will furnish to the Underwriter, without charge, a copy
of the Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by the 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 the Underwriter may
reasonably request; provided, however, that you will provide the notice
specified in Section 4.6 in every confirmation and will only deliver the
prospectus to those investors that request a paper copy thereof.
5.6 The Company agrees, so long as the Certificates shall be
outstanding, or until such time as the Underwriter shall cease to maintain a
secondary market in the Certificates, whichever first occurs, to deliver to the
Underwriter the annual statements as to compliance delivered to the Trustee
pursuant to Section 3.19 of the Pooling and Servicing Agreement and the annual
statement of a firm of independent public accountants furnished to the Trustee
pursuant to Section 3.20 of the Pooling and Servicing Agreement, as soon as such
statements are furnished to the Company.
5.7 The Company will endeavor to arrange for the qualification of the
Certificates for sale under the laws of such jurisdictions as the Underwriter
may reasonably designate and will maintain such qualification in effect so long
as required for the initial distribution of the Certificates and to determine
the legality of the Certificates for purchase by institutional investors;
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.
5.8 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, including,
without limitation, (a) costs and taxes incident to the authorization, sale and
delivery of the Certificates, (b) costs incident to preparation, printing and
filing or otherwise reproducing the Registration Statement (including any
amendments or exhibits thereto), the Prospectus, the other Transaction Documents
and the Certificates, (c) fees and expenses of the Trustee and its counsel, (d)
the fees and expenses of certified public accountants in connection with any
letter(s) delivered pursuant to Section 6.7 and (e) fees and expenses of counsel
or special counsel to the Company, and will reimburse the Underwriter for any
expenses (including reasonable fees and disbursements of counsel) reasonably
incurred by the Underwriter in connection with qualification of the Certificates
for sale and determination of their eligibility for investment under the laws of
such jurisdictions as the Underwriter 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, for
expenses incurred in distributing the Prospectus (including any amendments and
supplements thereto) to the Underwriter and for any costs and expenses
(including without limitation any damages or other amounts payable in connection
with legal or contractual liability) associated with the reforming of any
Contract of Sale or related actions taken by the Underwriter pursuant to Section
5.4 to the extent caused by a breach of the representation contained in Section
1.1(b) relating to the Definitive Free Writing Prospectus or caused by an error
in the Pool Information. Except as herein provided, the Underwriter shall be
responsible for paying for (a) the fees and expenses of certified public
accountants in connection with any letter other than any letter delivered
pursuant to Section 6.7 and (b) all costs and expenses incurred by the
Underwriter, including the fees and disbursements of its counsel, in connection
with the purchase and sale of the Certificates.
5.9 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 the Underwriter of the issuance of such stop
order. Upon receipt of notice of such stop order, the Underwriter shall cease
all offers and sales of the Certificates.
5.10 The Company shall file, to the extent required to be filed, any
Free Writing Prospectus prepared by the Company (including the Definitive Free
Writing Prospectus), and any Issuer Information contained in any Free Writing
Prospectus provided to it by the Underwriter under Section 4.4(e), not later
than the date of first use of the Free Writing Prospectus, except that:
(a) As to any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the final
terms of the Certificates after such terms have been established for
all classes of Certificates being publicly offered, such Free Writing
Prospectus or portion thereof may be filed by the Company within two
days of the later of the date such final terms have been established
for all classes of Certificates being publicly offered and the date of
first use; and
(b) Notwithstanding clause (a) above, as to any Free Writing
Prospectus or portion thereof required to be filed that contains only
information of a type included within the definition of ABS
Informational and Computational Materials, the Company shall file such
Free Writing Prospectus or portion thereof within the later of two
business days after any Underwriter first provides this information to
investors and the date upon which the Company is required to file the
Prospectus Supplement with the Commission pursuant to Rule 424(b)(3) of
the Act;
provided further, that prior to such use of any Free Writing Prospectuses by the
Company, the Underwriter must comply with its obligations pursuant to Section
4.4 and that the Company shall not be required to file any Free Writing
Prospectus that does not contain substantive changes from or additions to a Free
Writing Prospectus previously filed with the Commission.
5.11 The Underwriter shall file any Free Writing Prospectus (other than a Free
Writing Prospectus that is covered by Section 5.10) that has been distributed by
such Underwriter in a manner that could lead to its broad, unrestricted
dissemination not later than the date of first use, provided that if that Free
Writing Prospectus contains only information of a type included within the
definition of ABS Informational and Computational Materials then such filing
shall be made within the later of two business days after the Underwriter first
provide this information to investors and the date upon which the Company is
required to file the Prospectus Supplement with the Commission pursuant to Rule
424(b)(3) of the Act; provided further, that the Underwriter shall not be
required to file any Free Writing Prospectus that does not contain substantive
changes from or additions to a Free Writing Prospectus previously filed with the
Commission.
5.12 During the period when a prospectus is required by law to be
delivered in connection with the sale of the Certificates pursuant to this
Agreement, the Issuer will file or cause to be filed, on a timely and complete
basis, all documents that are required to be filed by the Issuer with the
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act (as defined
below).
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER. The Underwriter's
obligation to purchase the Certificates shall be subject to (i) the accuracy on
and as of the Closing Date of the representations and warranties on the part of
the Company herein contained; (ii) the performance by the Company of all of its
obligations hereunder; and (iii) the following conditions as of the Closing
Date:
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 not later
than the time required by Rule 424(b) under the Act.
6.2 Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have been any
change, or any development involving a prospective change, in or affecting the
business or properties of the Company, the Seller or any of their respective
affiliates the effect of which, in any case, is, in that Underwriter's
reasonable judgment, so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the Certificates as
contemplated by the Registration Statement and the Prospectus. All actions
required to be taken and all filings required to be made by the Issuer under the
Act and the Exchange Act prior to the sale of the Certificates shall have been
duly taken or made.
6.3 The Company shall have delivered to the Underwriter 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 all other Transaction Documents to which it is a party
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.
(c) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated;
(d) subsequent to the respective dates as of which information
is given in the Prospectus, and except as set forth or contemplated in
the Prospectus, there has not been any material adverse change in the
general affairs, business, key personnel, capitalization, financial
condition or results of operations of the Company or the Seller;
(e) except as otherwise stated in the Prospectus, there are no
actions, suits or proceedings pending before any court or governmental
agency, authority or body or, to their knowledge, threatened, against
the Company or the Seller that could reasonably have a material adverse
affect on (i) the Company or the Seller or (ii) the transactions
contemplated by this Agreement; and
(f) attached thereto are true and correct copies of a letter
or letters from one or more nationally recognized statistical rating
agencies confirming that the Certificates have been rated in one of the
four highest grades by each of such agencies rating that class of
Certificates and that such rating has not been lowered since the date
of such letter.
6.4 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 and various other closing documents, and that, to his
or her actual knowledge that the representations and warranties of the Company,
respectively, in this Agreement are true and correct in all material respects as
of the Closing Date.
6.5 The Underwriter shall have received the opinions of Thacher
Proffitt & Wood LLP, special counsel for the Company, dated the Closing Date and
substantially to the effect set forth in Exhibit A-1, Exhibit A-2 and Exhibit
A-3 [NOTE: Exhibit A-3 will be revised to address the Definitive Free Writing
Prospectus], the opinions of in-house counsel for the Company, dated the Closing
Date and substantially to the effect set forth in Exhibit B-l and Exhibit B-2
and an opinion of Sidley Austin Brown & Wood LLP, counsel to Company,
substantially to the effect set forth in Exhibit B-3.
6.6 The Underwriter shall have received from counsel an opinion dated
the Closing Date in form and substance satisfactory to the Underwriter.
6.7 The Underwriter shall have received from certified public
accountants, a letter dated the date hereof and satisfactory in form and
substance 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
Definitive Free Writing Prospectus and the Prospectus Supplement under the
captions "The Mortgage Pool", "Description of the Certificates", "Yield on the
Certificates" and "Pooling and Servicing Agreement" agrees with the records of
the Company excluding any questions of legal interpretation.
6.8 The Certificates shall have been rated at least as described
directly below by [Standard & Poor's, a division of The McGraw-Hill Companies,
Inc. ("S&P")] and [Moody's Investors Service, Inc. ("Moody's")].
Class [S&P's] [Moody's]
Rating Rating
The Underwriter shall have received a copy of the letter from each of the
respective rating agencies to such effect; and such ratings shall not have been
withdrawn on or before the Closing Date.
6.9 The Underwriter's shall have received the opinion of [Trustee's
counsel], dated the Closing Date, substantially to the effect set forth in
Exhibit C.
6.10 The Underwriter shall have received from Thacher Proffitt & Wood
LLP, special counsel to the Company, and from in-house counsel to the Company,
reliance letters with respect to any opinions delivered to [S&P] and [Moody's.]
6.11 The Underwriter shall have received a certificate, dated the
Closing Date, of the President, a Senior Vice President or a Vice President of
the Company as to the good standing of the Company and the due authorization by
the Company of the transactions contemplated herein.
6.12 The Underwriter shall have received such further information,
certificates and documents as the Underwriter may reasonably have requested, and
all proceedings in connection with the transactions contemplated by this
Agreement and all documents incident hereto shall be in all material respects
reasonably satisfactory in form and substance to the Underwriter and the
Underwriter's counsel.
The Company will furnish the Underwriter with conformed copies of the
above opinions, certificates, letters and documents as reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or, if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriter and its counsel, this Agreement and all
obligations of the Underwriter hereunder may be canceled at, or at any time
prior to, the Closing Date by the Underwriter. Notice of such cancellation shall
be given to the Company in writing, or by telephone or telegraph confirmed in
writing.
7. INDEMNIFICATION AND CONTRIBUTION.
7.1 (a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), from and against any and all
losses, claims, damages, expenses (as incurred) and liabilities to which the
Underwriter or they may become subject under the Act, the Exchange Act, or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, expenses or liabilities (or actions in
respect thereof) arise out of or are based upon or are caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Definitive Free Writing Prospectus, or in any Issuer Information contained in
any other Free Writing Prospectus, or in any Underwriter Derived Information to
the extent caused by any error in the Pool Information, or 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 any amendment thereof or other filing incorporated by reference
therein, or arise out of or are based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by it or him in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that none of the Company shall be liable to the Underwriter
or any person who controls the Underwriter to the extent that any misstatement
or alleged misstatement or omission or alleged omission is based upon any
information with respect to which the Underwriter have agreed to indemnify the
Company pursuant to Section 7.2.
(b) The Company agree to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter
within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities caused by errors in the Pool Information.
7.2 The Underwriter agree, several and not jointly, to indemnify, hold
harmless and reimburse the Company, each of the directors and officers who
signed the Registration Statement and any person controlling the Company or to
the same extent as the indemnity set forth in clause 7.1 above from the Company
to the Underwriter; provided, however, that the Underwriter shall be liable for
losses, claims, damages, expenses and liabilities only to the extent that they
arise out of or are based upon (i) the Underwriter' Information, (ii) any
Underwriter Derived Information, except to the extent of any errors in any
Underwriter Derived Information that are caused by errors in the Pool
Information, (iii) any Free Writing Prospectus for which the conditions set
forth in Section 4.4(e) above are not satisfied with respect to the prior
approval by the Company, (iv) any portion of any Free Writing Prospectus (other
than the Definitive Free Writing Prospectus) not constituting Issuer
Information, (v) any liability resulting from your failure to provide any
investor with the Definitive Free Writing Prospectus prior to entering into a
Contract of Sale with such investor or failure to file any Free Writing
Prospectus required to be filed by the Underwriter in accordance with Section
5.11, and (vi) any liability resulting from your failure to comply with Section
4.7 in connection with any road show. This indemnity agreement will be in
addition to any liability which the Underwriter may otherwise have.
The Company acknowledges that the Underwriter' Information constitutes
the only information furnished in writing by or on behalf of the Underwriter
expressly for use in the Registration Statement or the Prospectus or in any
amendment thereof or supplement thereto, as the case may be.
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 Section 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,
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) 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. In any case described in subclauses (ii) or
(iii) of the immediately preceding sentence, the fees and disbursements of
counsel for the indemnified party shall be paid by the indemnifying party. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings involving the same general allegations in the
same jurisdiction, be liable for the reasonable fees and expenses of more than
one separate firm (plus one local counsel, as necessary) for all such
indemnified parties. Such firm shall be designated in writing by the
Underwriter, in the case of parties indemnified pursuant to Section 7.1 and by
the Company, in the case of parties indemnified pursuant to Section 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. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding. 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 prior written consent.
7.4 If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7.1 or 7.2 hereof or
insufficient in respect of any losses, claims, damages, expenses or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, expenses or
liabilities, in such proportion as is appropriate to reflect (i) the relative
benefits received by the Company on the one hand and the Underwriter on the
other from the offering of the Certificates or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriter on the other in connection with the statements or omissions or
alleged statements or alleged omissions which resulted in such losses, claims,
damages, expenses or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand,
and by the Underwriter on the other shall be in the same proportions that the
purchase price paid by the Underwriter to the Company for the Certificates ("Net
Proceeds") bears to the excess of (a) the purchase prices paid by investors to
the Underwriter for the Certificates (the "Public Offering Price") over (b) Net
Proceeds. 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 Section 7.4, above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, expenses 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 Section 7.4; which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
such expenses are required to be paid by such indemnifying party under this
Section 7. Notwithstanding the provisions of this Section 7, the Underwriter
shall not be required to contribute any amount in excess of the amount by which
the Public Offering Price exceeds the Net Proceeds. 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 any Underwriter or on behalf
of the Underwriter or any person controlling the Underwriter or by or on behalf
of the Company and their 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 the
Underwriter by notice given to the Company, (i) 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 or (ii) trading in securities
generally on the New York Stock Exchange shall have been suspended or materially
limited, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities or
other calamity or crisis the effect of which on the financial markets is such as
to make it, in your reasonable judgment, impracticable to market the
Certificates on the terms specified in this Agreement. If the Underwriter
terminate this Agreement in accordance with this Section 8, the Company will
reimburse the Underwriter for all reasonable out-of-pocket expenses (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 their respective officers, and the Underwriter 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 their 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 the Underwriter at
_____________________________; if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at Impac Secured Assets Corp., 1401 Dove
Street, Newport Beach, California 92660, Attention: General Counsel, or if sent
to Impac Funding, will be mailed, delivered, or telegraphed and confirmed to it
at Impac Funding Corporation, 1401 Dove Street, Newport Beach, California 92660,
Attention: General Counsel.
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.
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 among the Company
and you.
Very truly yours,
IMPAC SECURED ASSETS CORP.
By:
---------------------------------------
Name:
Title:
IMPAC FUNDING CORPORATION
By:
---------------------------------------
Name:
Title:
IMPAC MORTGAGE HOLDINGS, INC.
By:
---------------------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
[UNDERWRITER]
By: _________________________________
Name:
Title:
SCHEDULE I
SCHEDULE I
CERTIFICATES
UNDERWRITER CERTIFICATES PRINCIPAL BALANCE OF
CLASS A, CLASS M AND CLASS B
CERTIFICATES
- ------------------------------------ --------------------------------------
$
- ------------------------------------ --------------------------------------
$
- ------------------------------------ --------------------------------------
$
- ------------------------------------ --------------------------------------
EXHIBIT A-1
FORM OF OPINION OF THACHER PROFFITT & WOOD LLP RE: CLOSING OPINION
[Date]
[Addressees]
Opinion: Underwriting Agreement
Impac Secured Assets Corp.
Mortgage Pass-Through Certificates, Series 200_-_
Ladies and Gentlemen:
We have acted as counsel to Impac Funding Corporation (the "Sponsor"),
Impac Secured Assets Corp. (the "Depositor") and Impac Mortgage Holdings, Inc.
("IMH") in connection with (i) the Mortgage Loan Purchase Agreement, dated as of
___________, 200_ (the "Seller Sale Agreement"), among the Sponsor, the
Depositor and IMH, (ii) the Pooling and Servicing Agreement, dated as of
__________, 200_ (the "Pooling and Servicing Agreement"), among the Sponsor (in
such capacity, the "Master Servicer"), the Depositor and _____________ (the
"Trustee"), and the certificates issued pursuant thereto designated as Mortgage
Pass-Through Certificates, Series 200_-_ (collectively, the "Certificates"),
(iii) the Underwriting Agreement, dated ____________, 200_ (the "Underwriting
Agreement"), among the Sponsor, the Depositor, IMH, ______________
("Underwriter"), (iv) the Free Writing Prospectus, dated __________, 200_ (the
"Free Writing Prospectus") as used on and before ____________, 200_ (the
"Pricing Date") at __:__ AM/PM on ____________, 200_ (the "Time of Sale"), (v)
the Prospectus Supplement, dated ___________, 200_ (the "Prospectus
Supplement"), and the Prospectus to which it relates, dated __________, 200_
(the "Base Prospectus"; together with the Prospectus Supplement, the
"Prospectus"), (vi) the Custodial Agreement, dated as of ____________, 200_ (the
"Custodial Agreement"), among the Trustee, the Depositor, the Sponsor (in such
capacity, the "Master Servicer") and ___________________ (the "Custodian"), and
(vii) the Indemnification Agreement, dated as of ____________, 200_ (the
"Indemnification Agreement"), among ___________ ("Insurer"), the Depositor and
IMH. The Seller Sale Agreement, the Pooling and Servicing Agreement, the
Underwriting Agreement, the Custodial Agreement and the Indemnification
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
any opinion expressed below, we have assumed (i) the authenticity of all
documents submitted to us as originals or as copies thereof, the conformity to
the originals of all documents submitted to us as copies, the genuineness of all
signatures and the legal capacity of natural persons, (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 entity authorization, execution,
authentication, payment, delivery and enforceability (as limited by bankruptcy
and other insolvency laws) of and under all documents, and the necessary entity
power and authority 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 in a manner that affects the correctness of
any opinion expressed below. In rendering this opinion letter, except for any
matter that is specifically addressed in any opinion 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. Each assumption herein is made and relied upon with your permission and
without independent investigation. In rendering this opinion letter, each
opinion expressed and assumption relied upon 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,
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, after such consultation with
such other attorneys in this firm as they deemed appropriate, 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 after such consultation with such other attorneys in this firm as
they deemed appropriate.
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"). Any opinion expressed below to the effect
that any agreement is valid, binding and enforceable relates only to an
agreement that designates therein the laws of the State of New York as the
governing law thereof. 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 Sponsor, the Depositor, the
Master Servicer or IMH is a party 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 Sponsor, Depositor, Master Servicer or IMH, as the case may
be.
2. The Certificates are validly issued and outstanding and are entitled
to the benefits of the Pooling and Servicing Agreement.
3. With respect to each of the Sponsor, 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 under any United States federal or State of New York statute
or regulation that is normally applicable to transactions of the type
contemplated by 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.
4. With respect to each of the Sponsor, 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 that is normally applicable to transactions of the
type contemplated by the Agreements.
5. The Registration Statement as of its effective date, the date of the
Prospectus Supplement and the date hereof and the Prospectus Supplement as of
the date of the Prospectus Supplement and the date hereof, other than any ABS
informational and computational materials used in reliance on 1933 Act Rule 167,
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.
6. 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 ABS informational and computational
materials used in reliance on 1933 Act Rule 167, as to which we express no
opinion herein, and those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
7. The statements made in the Base Prospectus under the heading
"Description of the Securities" insofar as those statements purport to summarize
certain provisions thereof, provide a fair summary of those provisions. The
statements made in the Base Prospectus under the headings "Legal Aspects of
Mortgage Loans -- Applicability of Usury Laws" and "--Alternative Mortgage
Instruments" and "ERISA Considerations", to the extent that those statements
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 securities to which they relate, are correct
in all material respects with respect to those consequences or matters that are
discussed therein.
8. 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" within the
meaning of the Investment Company Act of 1940, as amended.
This is to inform you that the Registration Statement has become
effective under the 1933 Act and that, to our knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued.
To ensure compliance with requirements imposed by the U.S. Internal
Revenue Service, any U.S. federal tax advice contained herein, as to which each
taxpayer should seek advice based on the taxpayer's particular circumstances
from an independent tax advisor, (i) is not intended or written to be used, and
cannot be used, for the purpose of avoiding penalties under the Internal Revenue
Code and (ii) is written in connection with the promotion or marketing of the
transaction or matters addressed herein.
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, (iii) to any and
all persons, without limitation, in connection with the disclosure of the tax
treatment and tax structure of the transaction to which this opinion letter
relates, (iv) in connection with a due diligence inquiry by or with respect to
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, (v)
in order to comply with any subpoena, order, regulation, ruling or request of
any judicial, administrative, governmental, supervisory or legislative body or
committee or any self-regulatory body (including any securities or commodities
exchange or the National Association of Securities Dealers, Inc.) and (vi) 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,
EXHIBIT A-2
FORM OF OPINION OF THACHER PROFFITT & WOOD LLP RE: TAX MATTERS
[Date]
[Addressees]
Opinion: Underwriting Agreement (Tax)
Impac Secured Assets Corp.
Mortgage Pass-Through Certificates, Series 200_-_
Ladies and Gentlemen:
We have acted as counsel to Impac Funding Corporation (the "Sponsor"),
Impac Secured Assets Corp. (the "Depositor") and Impac Mortgage Holdings, Inc.
("IMH") in connection with (i) the Mortgage Loan Purchase Agreement, dated as of
___________, 200_ (the "Seller Sale Agreement"), among the Sponsor, the
Depositor and IMH, (ii) the Pooling and Servicing Agreement, dated as of
__________, 200_ (the "Pooling and Servicing Agreement"), among the Sponsor (in
such capacity, the "Master Servicer"), the Depositor and _____________ (the
"Trustee"), and the certificates issued pursuant thereto designated as Mortgage
Pass-Through Certificates, Series 200_-_ (collectively, the "Certificates"),
(iii) the Underwriting Agreement, dated ____________, 200_ (the "Underwriting
Agreement"), among the Sponsor, the Depositor, IMH, ______________
("Underwriter"), (iv) the Free Writing Prospectus, dated __________, 200_ (the
"Free Writing Prospectus") as used on and before ____________, 200_ (the
"Pricing Date") at __:__ AM/PM on ____________, 200_ (the "Time of Sale"), (v)
the Prospectus Supplement, dated ___________, 200_ (the "Prospectus
Supplement"), and the Prospectus to which it relates, dated __________, 200_
(the "Base Prospectus"; together with the Prospectus Supplement, the
"Prospectus"), (vi) the Custodial Agreement, dated as of ____________, 200_ (the
"Custodial Agreement"), among the Trustee, the Depositor, the Sponsor (in such
capacity, the "Master Servicer") and ___________________ (the "Custodian"), and
(vii) the Indemnification Agreement, dated as of ____________, 200_ (the
"Indemnification Agreement"), among ___________ ("Insurer"), the Depositor and
IMH. The Seller Sale Agreement, the Pooling and Servicing Agreement, the
Underwriting Agreement, the Custodial Agreement and the Indemnification
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
any opinion expressed below, we have assumed (i) the authenticity of all
documents submitted to us as originals or as copies thereof, the conformity to
the originals of all documents submitted to us as copies, the genuineness of all
signatures and the legal capacity of natural persons, (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 entity authorization, execution,
authentication, payment, delivery and enforceability (as limited by bankruptcy
and other insolvency laws) of and under all documents, and the necessary entity
power and authority 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 in a manner that affects the correctness of
any opinion expressed below. In rendering this opinion letter, except for any
matter that is specifically addressed in any opinion 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. Each assumption herein is made and relied upon with your permission and
without independent investigation.
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, after such consultation with
such other attorneys in this firm as they deemed appropriate, have no actual
present knowledge of the inaccuracy of any fact relied upon in rendering this
opinion letter.
In rendering this opinion letter, we do not express any opinion
concerning any law other than the federal income tax laws of the United States,
including without limitation the Internal Revenue Code of 1986, as amended (the
"Code") and the provisions thereof 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 applicable law and regulations issued or proposed thereunder, published
rulings and releases of 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 to which this opinion
letter relates.
Based upon and subject to the foregoing, it is our opinion that:
1. The statements made in the Base Prospectus and the Prospectus
Supplement under the heading "Federal Income Tax Consequences", to the
extent that those statements constitute matters of law or legal
conclusions with respect thereto, while not purporting to discuss all
possible consequences of investment in the securities to which they
relate, are correct in all material respects with respect to those
consequences or matters that are discussed therein.
2. [Assuming the accuracy of and compliance with the factual
representations, covenants and other provisions of the Agreements
without any waiver or modification thereof, for United States federal
income tax purposes within the meaning of the Code in effect on the
date hereof, (i) each of REMIC 1, REMIC 2 and REMIC 3 will qualify as a
REMIC, (ii) the REMIC 1 Regular Interests will represent ownership of
the "regular interests" in REMIC 1, and the Class R-1 Interest will
constitute the sole class of "residual interests" in REMIC 1, (iii) the
REMIC 2 Regular Interests will represent ownership of the "regular
interests" in REMIC 2 and the Class R-2 Interest will constitute the
sole class of "residual interests" in REMIC 2, (iv) each class of
publicly offered certificates (exclusive of the right of the
Certificates (other than the Class C, Class P and Class R Certificates)
to receive payments from the Basis Risk Shortfall Reserve Fund and the
obligation of the Class C Certificates to make payments to the Basis
Risk Shortfall Reserve Fund) will represent ownership of "regular
interests" in REMIC 3 and will generally be treated as debt instruments
of REMIC 3, and (v) the Class R Interest will constitute the sole class
of "residual interests" in REMIC 3.]
To ensure compliance with requirement imposed by the U.S. Internal
Revenue Service, any U.S. federal tax advice contained herein, as to which each
taxpayer should seek advice based on the taxpayer's particular circumstances
from an independent tax advisor, (i) is not intended or written to be used, and
cannot be used, for the purpose of avoiding penalties under the Internal Revenue
Code and (ii) is written in connection with the promotion or marketing of the
transaction or matters addressed herein.
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, (iii) to any and
all persons, without limitation, in connection with the disclosure of the tax
treatment and tax structure of the transaction to which this opinion letter
relates, (iv) in connection with a due diligence inquiry by or with respect to
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, (v)
in order to comply with any subpoena, order, regulation, ruling or request of
any judicial, administrative, governmental, supervisory or legislative body or
committee or any self-regulatory body (including any securities or commodities
exchange or the National Association of Securities Dealers, Inc.) and (vi) 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,
EXHIBIT A-3
FORM OF LETTER OF THACHER PROFFITT & WOOD LLP RE: CERTAIN SECURITIES LAW MATTERS
[Date]
[Addressees]
Supplementary Letter (Underwriting Agreement)
Impac Secured Assets Corp.
Mortgage Pass-Through Certificates, Series 200_-_
Ladies and Gentlemen:
We have acted as counsel to Impac Funding Corporation (the "Sponsor"),
Impac Secured Assets Corp. (the "Depositor") and Impac Mortgage Holdings, Inc.
("IMH") in connection with (i) the Mortgage Loan Purchase Agreement, dated as of
___________, 200_ (the "Seller Sale Agreement"), among the Sponsor, the
Depositor and IMH, (ii) the Pooling and Servicing Agreement, dated as of
__________, 200_ (the "Pooling and Servicing Agreement"), among the Sponsor (in
such capacity, the "Master Servicer"), the Depositor and _____________ (the
"Trustee"), and the certificates issued pursuant thereto designated as Mortgage
Pass-Through Certificates, Series 200_-_ (collectively, the "Certificates"),
(iii) the Underwriting Agreement, dated ____________, 200_ (the "Underwriting
Agreement"), among the Sponsor, the Depositor, IMH, ______________
("Underwriter"), (iv) the Free Writing Prospectus, dated __________, 200_ (the
"Free Writing Prospectus") as used on and before ____________, 200_ (the
"Pricing Date") at __:__ AM/PM on ____________, 200_ (the "Time of Sale"), (v)
the Prospectus Supplement, dated ___________, 200_ (the "Prospectus
Supplement"), and the Prospectus to which it relates, dated __________, 200_
(the "Base Prospectus"; together with the Prospectus Supplement, the
"Prospectus"), (vi) the Custodial Agreement, dated as of ____________, 200_ (the
"Custodial Agreement"), among the Trustee, the Depositor, the Sponsor (in such
capacity, the "Master Servicer") and ___________________ (the "Custodian"), and
(vii) the Indemnification Agreement, dated as of ____________, 200_ (the
"Indemnification Agreement"), among ___________ ("Insurer"), the Depositor and
IMH. The Seller Sale Agreement, the Pooling and Servicing Agreement, the
Underwriting Agreement, the Custodial Agreement and the Indemnification
Agreement are collectively referred to herein as the "Agreements." Capitalized
terms not defined herein have the meanings assigned to them in the Agreements.
We do not represent any party for which we are acting as counsel in
connection herewith in connection with matters other than certain transactions.
The primary purpose of our engagement was to consider and advise with respect to
legal matters, and not to determine or verify facts not constituting legal
conclusions. However, in connection with the transaction to which this letter
relates, we have participated in the preparation and/or review of, and in
discussions with representatives of the parties to the Agreements and their
respective counsel regarding, the contents the Registration Statement, the Free
Writing Prospectus and the Prospectus and the Agreements and certain
certificates of fact and legal opinion letters. We have not otherwise undertaken
any procedures that were intended or likely to elicit information concerning the
accuracy, completeness or fairness of the statements and other information
contained in the documents described above. We are not advising in this letter
with respect to the documents described above as to (i) statistical, accounting
or other financial information contained therein, (ii) information contained in
any accompanying computer disk, CD-ROM or other electronic media, (iii)
information incorporated by reference therein or (iv) other marketing materials
not contained in the Prospectus including without limitation those generally
described as term sheets and computational materials.
Based upon and subject to the foregoing, this is to inform you that no
information has come to the attention of the attorneys in this firm who are
involved in the representation of parties to the transactions described herein
in connection therewith, after such consultation with such other attorneys in
this firm as they deemed appropriate, that causes us to believe that (A) the
Registration Statement, as of the date of the Prospectus Supplement or as of the
date hereof, contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (B) the Free Writing
Prospectus as of the date thereof December 20, 2005, the Pricing Date or the
Prospectus as of the date of the Prospectus Supplement or as of the date hereof,
contained or contains any untrue statement of a material fact or omitted or
omits 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.
To ensure compliance with requirements imposed by the U.S. Internal
Revenue Service, this is to inform you that any U.S. federal tax advice
contained herein is not intended or written to be used, and cannot be used, for
the purpose of avoiding penalties under the U.S. Internal Revenue Code.
This 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 letter may not be made
available, and this 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
letter may be made available as provided herein, (iii) to any and all persons,
without limitation, in connection with the disclosure of the tax treatment and
tax structure of the transaction to which this letter relates, (iv) in
connection with a due diligence inquiry by or with respect to 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 letter, (v) in order to comply with any
subpoena, order, regulation, ruling or request of any judicial, administrative,
governmental, supervisory or legislative body or committee or any
self-regulatory body (including any securities or commodities exchange or the
National Association of Securities Dealers, Inc.) and (vi) 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
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 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 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 letter for its purposes.
Very truly yours,
EXHIBIT B-1
FORM OF OPINION OF IN-HOUSE COUNSEL TO IMPAC FUNDING RE: CERTAIN MATTERS
[Date]
To the Addressees Listed
on Schedule A
Re: Impac Funding Corporation
Mortgage Pass-Through Certificates, Series 200_-_
Ladies and Gentlemen:
I am General Counsel to Impac Funding Corporation, a California
corporation (the "Company"), for the sole purpose of rendering this opinion in
connection with (i) the Mortgage Loan Purchase Agreement, dated as of
__________, 200_, among Impac Secured Assets Corporation ("ISAC"), Impac
Mortgage Holdings, Inc. ("IMH") and the Company, pursuant to which the Company
will sell to ISAC the Mortgage Loans, (ii) the Pooling and Servicing Agreement,
dated as of ___________, 200_, among the Company, as the master servicer (the
"Master Servicer"), ___________________, as trustee (the "Trustee") and ISAC,
pursuant to which the Master Servicer will service the mortgage loans, as
described thereby, directly or through one or more subservicers, (iii) the
Underwriting Agreement (the "Underwriting Agreement"), dated ____________, 200_
among the Company, IMH, ISAC, ____________ (the "Underwriter") pursuant to which
the Company will sell approximately $[_____________] of Mortgage Pass-Though
Certificates, Series 200_-_ to the Underwriter and (vi) the Indemnification
Agreement, dated as of __________, 200_ (the "Indemnification Agreement"), among
________________ ("Insurer"), the Depositor and IMH.. The agreements described
in (i) through (iv) above are collectively referred to herein as the
"Agreements." My representation of the Company is limited solely to rendering
this opinion. Capitalized terms not otherwise defined herein have the meanings
set forth in the Agreements. This opinion is being rendered pursuant to Section
6.5 of the Underwriting Agreement.
In my capacity as such counsel, I have examined originals or copies of
those corporate and other records and documents I considered appropriate,
including the following:
A. The Agreements;
B. The Company's Articles of Incorporation and Bylaws, as amended
to date; and
C. Resolutions adopted by the Board of Directors of the Company
with specific reference to actions relating to the
transactions covered by this opinion.
As to relevant factual matters, I have relied upon, among other things,
the Company's representations in certificates of the officers of the Company. In
addition, I have obtained and relied upon those certificates of public officials
we considered appropriate. Such factual matters have not been independently
established or verified by me.
My use of the terms "known to me," "to my knowledge," or a similar
phrase to qualify a statement in this opinion means that I do not have current
actual knowledge that the statement is inaccurate. I have not undertaken any
independent investigation to determine the accuracy of any statement, and any
limited inquiry undertaken by me during the preparation of this opinion letter
should not be regarded as such an investigation. No inference as to my knowledge
of any matters bearing on the accuracy of any such statement should be drawn
from the fact of my representation of the Company in connection with this
opinion letter or in other matters.
The term "threatened litigation" used herein shall have the same
meaning as the term "overtly threatened" used in the American Bar Association
Statement of Policy on Lawyer's Responses to Auditors' Requests for Information
(December 1975).
I have assumed the genuineness of all signatures, the authenticity of
all documents submitted to me as originals, the legal capacity of all natural
persons and the conformity with originals of all documents submitted to us as
copies. To the extent the Company's obligations depend on the due authorization,
execution and delivery of the Agreements by the other parties to the Agreements,
I have assumed that the Agreements have been so authorized, executed and
delivered and that they constitute the legally valid and binding obligation of
each such party enforceable against such party in accordance with their
respective terms. I have further assumed the conformity of the Mortgage Loans
and related documents to the requirements of the Agreements.
I have also assumed, without independent verification, that there are
no servicing agreements or understandings among the Company and any other party
which would expand, modify or otherwise affect the terms of the documents
described herein or the respective rights or obligations of the parties
thereunder.
On the basis of such examination, my reliance upon the assumptions
contained herein and our consideration of those questions of law I considered
relevant, and subject to the limitations and qualifications in this opinion, I
am of the opinion that:
1. The Company has been duly incorporated and is validly existing in
good standing under the laws of the State of California with corporate power to
own its properties, conduct its business as described in the Agreements, to
enter into the Agreements and to perform its obligations thereunder.
2. The execution, delivery and performance of the Agreements to which
the Company is a party has been duly authorized by all necessary corporate
action on the part of the Company, and the Agreements have been duly executed
and, to our knowledge, delivered by the Company.
3. No order, consent, permit or approval of any California governmental
authority that we have, in the exercise of customary professional diligence,
recognized as directly applicable to the Company or to transactions of the type
contemplated by the Agreements, is required on the part of the Company for the
execution and delivery, and performance on or prior to the date of this opinion
under, the Agreements, except for such as have been obtained.
4. The execution and delivery by the Company of, and performance of its
obligations on or prior to the date hereof under the Agreements to which it is a
party, do not (i) violate the Company's Articles of Incorporation or Bylaws, or
to my knowledge, (ii) result in a default under the terms of any indenture or
other material agreement or instrument known to us to which the Company is a
party or by which it is bound, or (iii) breach or otherwise violate any existing
obligation of the Company under any order, judgment or decree of any California
or federal court or governmental authority binding the Company and known to us.
5. The execution and delivery by the Company of, and the performance of
its obligations on or prior to the date hereof, under the Agreements to which it
is a party, does not subject the Company to any fine, penalty or similar
sanction under any material California statute or regulation that I have, in the
exercise of customary professional diligence, recognized as directly applicable
to the Company or the transactions of the type contemplated by the Agreements,
except in any case where the default, breach, fine or penalty would not have a
material adverse effect on the Company's ability to perform its obligations
under the Agreements.
6. To my knowledge, there is no action, suit, proceeding or
investigation pending or threatened (i.e. threatened litigation) against the
Company which, in my judgment, would draw into question the validity of the
Agreements or which would be likely to impair materially the ability of the
Company to perform its obligations under the terms of the Agreements.
The opinions set forth above are subject to and limited by the net
impact or result of any conflict of laws between or among laws of competing
jurisdictions and the applicability of the law of any jurisdiction in such
instance beyond California.
In rendering this opinion, I express no opinion concerning compliance
with securities laws, nor do I express any opinion concerning the laws of any
jurisdiction other than the present laws of the State of California. I express
no opinion on any issue not expressly addressed above.
This opinion is rendered by me as General Counsel for the Company and
may be relied upon by you only in connection with the transactions contemplated
by the Agreements. It may not be used or relied upon by you for any other
person, nor may copies be delivered to any other person, without in each
instance my prior written consent.
Very truly yours,
----------------------------
General Counsel & Secretary
SCHEDULE A
ADDRESSEES
EXHIBIT B-2
FORM OF OPINION OF IN-HOUSE COUNSEL TO THE COMPANY RE: CERTAIN MATTERS
[Date]
To the Addressees Listed
on Schedule A
Re: Impac Secured Assets Corp.
Mortgage Pass-Through Certificates, Series 200_-_
Ladies and Gentlemen:
I am General Counsel to Impac Secured Assets Corp., a California
corporation (the "Company"), for the sole purpose of rendering this opinion in
connection with (i) the Mortgage Loan Purchase Agreement, dated as of _________,
200_, among Impac Funding Corporation ("IFC"), Impac Mortgage Holdings, Inc.
("IMH") and the Company, pursuant to which IFC will sell to the Company the
Mortgage Loans, (ii) the Pooling and Servicing Agreement, dated as of _________,
200_, among IFC, as the master servicer (the "Master Servicer"), ____________,
as trustee (the "Trustee") and the Company, pursuant to which the Master
Servicer will service the mortgage loans, as described thereby, directly or
through one or more subservicers, and (iii) the Underwriting Agreement (the
"Underwriting Agreement"), dated _________, 200_, among IMH, IFC, the Company
and ___________ (the "Underwriter") pursuant to which the Company will sell
approximately $[_________] of Mortgage Pass-Though Certificates, Series 200_-_
to the Underwriter and (vi) the Indemnification Agreement, dated as of
_________, 200_ (the "Indemnification Agreement"), among ____________
("Insurer"), the Depositor and IMH.. The agreements described in (i) through
(iv) above are together referred to herein as the "Agreements." My
representation of the Company is limited solely to rendering this opinion.
Capitalized terms not otherwise defined herein have the meanings set forth in
the Agreements. This opinion is being rendered pursuant to Section 6.5 of the
Underwriting Agreement.
In my capacity as such counsel, I have examined originals or copies of
those corporate and other records and documents I considered appropriate,
including the following:
A. The Agreements;
B. The Company's Articles of Incorporation and Bylaws, as amended
to date; and
C. Resolutions adopted by the Board of Directors of the Company
with specific reference to actions relating to the
transactions covered by this opinion.
As to relevant factual matters, I have relied upon, among other things, the
Company's representations in certificates of the officers of the Company. In
addition, I have obtained and relied upon those certificates of public officials
we considered appropriate. Such factual matters have not been independently
established or verified by me.
My use of the terms "known to me," "to my knowledge," or a similar phrase to
qualify a statement in this opinion means that I do not have current actual
knowledge that the statement is inaccurate. I have not undertaken any
independent investigation to determine the accuracy of any statement, and any
limited inquiry undertaken by me during the preparation of this opinion letter
should not be regarded as such an investigation. No inference as to my knowledge
of any matters bearing on the accuracy of any such statement should be drawn
from the fact of my representation of the Company in connection with this
opinion letter or in other matters.
The term "threatened litigation" used herein shall have the same meaning as the
term "overtly threatened" used in the American Bar Association Statement of
Policy on Lawyer's Responses to Auditors' Requests for Information (December
1975).
I have assumed the genuineness of all signatures, the authenticity of all
documents submitted to me as originals, the legal capacity of all natural
persons and the conformity with originals of all documents submitted to us as
copies. To the extent the Company's obligations depend on the due authorization,
execution and delivery of the Agreements by the other parties to the Agreements,
I have assumed that the Agreements have been so authorized, executed and
delivered and that they constitute the legally valid and binding obligation of
each such party enforceable against such party in accordance with their
respective terms. I have further assumed the conformity of the Mortgage Loans
and related documents to the requirements of the Agreements.
I have also assumed, without independent verification, that there are no
servicing agreements or understandings among the Company and any other party
which would expand, modify or otherwise affect the terms of the documents
described herein or the respective rights or obligations of the parties
thereunder.
On the basis of such examination, my reliance upon the assumptions contained
herein and our consideration of those questions of law I considered relevant,
and subject to the limitations and qualifications in this opinion, I am of the
opinion that:
1. The Company has been duly incorporated and is validly existing in good
standing under the laws of the State of California with corporate power to own
its properties, conduct its business as described in the Agreements, to enter
into the Agreements and to perform its obligations thereunder.
2. The execution, delivery and performance of the Agreements to which the
Company is a party has been duly authorized by all necessary corporate action on
the part of the Company, and the Agreements have been duly executed and, to our
knowledge, delivered by the Company.
3. No order, consent, permit or approval of any California governmental
authority that we have, in the exercise of customary professional diligence,
recognized as directly applicable to the Company or to transactions of the type
contemplated by the Agreements, is required on the part of the Company for the
execution and delivery, and performance on or prior to the date of this opinion
under, the Agreements, except for such as have been obtained.
4. The execution and delivery by the Company of, and performance of its
obligations on or prior to the date hereof under the Agreements to which it is a
party, do not (i) violate the Company's Articles of Incorporation or Bylaws, or
to my knowledge, (ii) result in a default under the terms of any indenture or
other material agreement or instrument known to us to which the Company is a
party or by which it is bound, or (iii) breach or otherwise violate any existing
obligation of the Company under any order, judgment or decree of any California
or federal court or governmental authority binding the Company and known to us.
5. The execution and delivery by the Company of, and the performance of its
obligations on or prior to the date hereof, under the Agreements to which it is
a party, does not subject the Company to any fine, penalty or similar sanction
under any material California statute or regulation that I have, in the exercise
of customary professional diligence, recognized as directly applicable to the
Company or the transactions of the type contemplated by the Agreements, except
in any case where the default, breach, fine or penalty would not have a material
adverse effect on the Company's ability to perform its obligations under the
Agreements.
6. To my knowledge, there is no action, suit, proceeding or investigation
pending or threatened (i.e. threatened litigation) against the Company which, in
my judgment, would draw into question the validity of the Agreements or which
would be likely to impair materially the ability of the Company to perform its
obligations under the terms of the Agreements.
The opinions set forth above are subject to and limited by the net impact or
result of any conflict of laws between or among laws of competing jurisdictions
and the applicability of the law of any jurisdiction in such instance beyond
California.
In rendering this opinion, I express no opinion concerning compliance with
securities laws, nor do I express any opinion concerning the laws of any
jurisdiction other than the present laws of the State of California. I express
no opinion on any issue not expressly addressed above.
This opinion is rendered by me as General Counsel for the Company and may be
relied upon by you only in connection with the transactions contemplated by the
Agreements. It may not be used or relied upon by you for any other person, nor
may copies be delivered to any other person, without in each instance my prior
written consent.
Very truly yours,
---------------------------
General Counsel & Secretary
SCHEDULE A
[ADDRESSEES]
EXHIBIT B-3
FORM OF OPINION OF COUNSEL TO IMH RE: CERTAIN MATTERS
[Date]
To the Addressee
Re: Impac Mortgage Holdings, Inc.
Impac Secured Assets Corp.
Mortgage Pass-Through Certificates. Series 200_-_
Ladies and Gentlemen:
We have served as Maryland counsel to Impac Mortgage Holdings, Inc., a
Maryland corporation (the "Company"), in connection with certain matters of
Maryland law arising out of the transactions contemplated under (a) the Mortgage
Loan Purchase Agreement, dated as of _________, 200_ (the "Mortgage Loan
Purchase Agreement") by and among the Company, Impac Funding Corporation, a
California corporation (the "Sponsor") and Impac Secured Assets Corp., a
California corporation (the "Purchaser"), (b) the Letter Agreement, dated as of
_________, 200_ (the "Letter Agreement") by and among the Company and
____________, a ___________ domiciled stock insurance corporation ("Insurer"),
(c) the Indemnification Agreement dated as of _________, 200_ (the
"Indemnification Agreement") among Insurer, the Company and the Purchaser, and
(d) the Underwriting Agreement, dated __________, 200_ (the "Underwriting
Agreement"), by and among ___________, ("the Underwriter"), the Sponsor, the
Purchaser and the Company. The Mortgage Loan Purchase Agreement, the Letter
Agreement, the Indemnification Agreement and the Underwriting Agreement are
collectively referred to herein as the Transaction Documents.
This opinion is being delivered to you pursuant to Section 6.5 of the
Underwriting Agreement. Capitalized terms used but not defined herein shall have
the meanings assigned to them in the Underwriting Agreement.
As counsel to the Company, we have examined and relied upon originals
or copies, certified or otherwise identified to our satisfaction, of such
instruments, certificates, records and other documents and have made such
examination of law as we have deemed necessary or appropriate for the purpose of
this opinion. In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies or by facsimile
or other means of electronic transmission or which we obtained from the
Commission's Electronic Data Gathering, Analysis and Retrieval System ("EDGAR")
or other sites on the internet, and the authenticity of the originals of such
latter documents. As to facts relevant to the opinions expressed herein and the
other statements made herein, we have relied without independent investigation
upon certificates and oral or written statements and representations of public
officials, officers and other representatives of the Company and others.
Based upon the foregoing, and subject to the limitations,
qualifications, exceptions, and assumptions set forth herein, we are of the
opinion that:
1. The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of Maryland. The Company has the
requisite corporate power to execute, deliver and perform its obligations under
each of the Transaction Documents.
2. Each of the Transaction Documents has been duly and validly
authorized, executed and, so far as is known to us, delivered by the Company.
3. A Maryland court, or a United States court sitting in the State of
Maryland should give effect to the choice of the laws of the State of New York
to govern the Transaction Documents, provided that such court finds (a) that the
State of New York has a substantial relationship to the parties or the
transactions contemplated by the Transaction Documents or there is some other
reasonable basis for the parties' choice of New York law and (b) that
application of the laws of the State of New York would not contravene a
fundamental policy of a state (i) which has a materially greater interest than
the State of New York in a particular issue arising under the Transaction
Documents, and (ii) which would be the state of the applicable law in the
absence of an effective choice of law by the parties. Additionally, such a court
might not apply the laws of the State of New York respecting (x) the remedies
available in the State of Maryland upon a breach of the Transaction Documents,
(y) the procedural rules governing or affecting any action in the State of
Maryland to enforce the Transaction Documents or (z) any provision or practice
condoned or permitted by the laws of the State of New York that is determined to
be against a fundamental public policy of the State of Maryland.
4. Neither the execution and delivery of the Transaction Documents by
the Company nor the fulfillment of the terms of or the consummations of the
transactions contemplated thereunder will result in a breach of any term or
provision of the Charter or the Bylaws or, to our knowledge, will conflict with,
result in any breach or violation of, or constitute a default under, any order
of any court, regulatory body, administrative agency or government body of the
State of Maryland having jurisdiction over the Company.
5. To our knowledge, no consent, approval, authorization or order of
any court or government agency or body in the State of Maryland having
jurisdiction over the Company is required for the execution, delivery and
performance by the Company of the Transaction Documents or the consummation of
the transactions contemplated thereunder, except for those consents, approvals,
authorizations or orders which previously have been obtained.
6. To our knowledge, there is no action, suit, proceeding or
investigation pending or threatened against the Company in any court or
governmental agency located in Maryland which, in our judgment, either in any
one instance or in the aggregate, (a) would draw into question the validity of
the Transaction Documents, (b) seeks to prevent the consummation of any of the
transactions contemplated by the Transaction Documents, or (c) would be likly to
impair materially the ability of the Company to perform its obligations under
the terms of the Transaction Documents.
The foregoing opinions and other statements are subject to the
following qualifications, exceptions, assumptions and limitations:
1. Members of our firm are admitted to the bar of the State of Maryland
and the foregoing opinion is limited to matters arising under the laws of the
State of Maryland. We express no opinion in connection with the securities laws
or as to federal or state laws regarding fraudulent transfers or as to the
number of issued and outstanding shares of stock of the Company or as to the
laws, rules or regulations of any other jurisdiction or, in the case of
Maryland, as to the municipal laws or the laws, rules or regulations of any
local agencies or governmental authorities of or within the State of Maryland,
or in each case as to any matters arising thereunder or relating thereto.
2. Whenever a statement or opinion herein is qualified by "to our
knowledge", "known to us" or a similar phrase, it is intended to indicate that
those attorneys in this firm who have rendered substantive legal services in
connection with the transactions contemplated by the Transaction Documents do
not have actual conscious awareness of the inaccuracy of such statement or
opinion. We have not, however, undertaken any independent investigation or
inquiry to determine the accuracy of any such statement or opinion and no
inference as to our knowledge or that we have any knowledge of any matters
pertaining to such statement or opinion should be drawn from the fact that we
have acted as counsel to the Company in connection with the transactions
contemplated by the Transaction Documents.
We note that the Transaction Documents provide that they shall be
governed by the laws of the State of New York. To the extent that any matter as
to which our opinion is expressed herein would be governed by the laws of any
jurisdiction other than the State of Maryland, we do not express any opinion on
such matter. We also express no opinion with respect to the enforceability of
provisions for the indemnification of or contribution to a party where such
indemnification or contribution is contrary to public policy. The opinion
expressed herein is subject to the effect of judicial decisions which may permit
the introduction of parol evidence to modify the terms or the interpretation of
agreements.
We assume no obligation to supplement this opinion if any applicable
law changes after the date hereof or if we become aware of any fact that might
change the opinion expressed herein after the date hereof.
This opinion is solely for your benefit in connection with the
transactions described in the first paragraph above and may not be quoted or
relied upon by, nor may copies be delivered to, any other person (except to
_____________, Esquire-General Counsel to the Company), nor may this letter be
relied upon by you for any other purpose, without our prior written consent.
Very truly yours,
EXHIBIT C
FORM OF OPINION OF TRUSTEE'S COUNSEL
[Date]
To Each of the Persons Listed
on Schedule A Attached Hereto
Re: Impac Secured Assets Corp. -- Mortgage Pass-through Certificates,
Series 200_-_
Ladies and Gentlemen:
We have acted as special counsel to ______________, as trustee (in such
capacity, the "Trustee") in connection with the transactions contemplated by (i)
the Pooling and Servicing Agreement dated as of ____________, 200_ (the "Pooling
Agreement") among Impac Secured Assets Corp. as depositor (the "Depositor"),
Impac Funding Corporation as master servicer (the "Master Servicer"), and the
Trustee, and (ii) the Custodial Agreement dated as of _________, 200_, among
___________, as Custodian (the "Custodian"), the Depositor, the Master Servicer
and the Trustee (the "Custodial Agreement", and together with the Pooling
Agreement, the "Agreements"). Capitalized terms used herein and not otherwise
defined herein will have the meanings assigned in the Agreements.
In connection with the opinion expressed below, we have relied upon the
representations and warranties contained in the Agreements and we have relied
upon originals or certified copies of such documents, certificates and other
statements as we have deemed relevant and necessary as a basis for such opinion,
and we have not attempted to independently verify or establish the factual
matters set forth therein. We have also relied, with your permission, on the
opinion of Senior Counsel for ______________, a copy of which is attached
hereto.
We have assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals and the conformity to authentic
original documents of all documents submitted to us as certified, conformed or
photostatic copies. We have assumed for the purposes of our opinion that (i) the
execution and delivery of the Agreements by all parties thereto (other than the
Trustee), and (ii) the performance by such parties (other than the Trustee) of
their respective obligations under the Agreements are within the powers
(corporate or otherwise) of such parties and have been duly authorized by all
requisite action of such parties and that such documents have been duly executed
and delivered by such parties (other than the Trustee). We have further assumed
that each party to the Agreements (other than the Trustee) has complied with all
legal requirements pertaining to its status as such status relates to its rights
to enforce the Agreements against the Trustee.
Based upon the foregoing, it is our opinion that:
Each of the Agreements is a valid and legally binding agreement,
enforceable in accordance with its terms, against _____________ in its capacity
as Trustee except that certain of such obligations may be enforceable solely
against the Trust Estate and except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation, or other
similar laws affecting the enforcement of creditors' rights generally, and by
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
We express no opinion as to any laws other than the law of the State of
New York and federal laws of the United States.
This opinion is solely for the benefit of the addressees hereof in
connection with the execution and delivery of the Agreements, and may not be
relied upon in any manner by any other person without our prior written consent.
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,
EXHIBIT D
FOOTNOTE 271 INFORMATION
[Excerpt from Offering Reform adopting release-bold headings added for
convenience of reference]
In the case of asset-backed issuers certain information comprehended within the
definition of ABS informational and computational material is analogous to the
term of securities and is therefore issuer information. For example, we would
expect that the following categories of such material, which are derived from
the definition of ABS informational and computational materials, are generally
issuer information:
(1) STRUCTURAL INFORMATION-factual information regarding the
asset-backed securities being offered and the structure and basic parameters of
the securities, such as the number of classes, seniority, payment priorities,
terms of payment, the tax, ERISA or other legal conclusions of counsel, and
descriptive information relating to each class (e.g., principal amount, coupon,
minimum denomination, price or anticipated price, yield, weighted average life,
credit enhancements, anticipated ratings, and other similar information relating
to the proposed structure of the offering);
(2) COLLATERAL INFORMATION-factual information regarding the pool
assets underlying the asset-backed securities, including origination,
acquisition and pool selection criteria, information regarding any prefunding or
revolving period applicable to the offering, information regarding significant
obligors, data regarding the contractual and related characteristics of the
underlying pool assets (e.g., weighted average coupon, weighted average
maturity, delinquency and loss information and geographic distribution) and
other factual information concerning the parameters of the asset pool
appropriate to the nature of the underlying assets, such as the type of assets
comprising the pool and the programs under which the loans were originated;
(3) KEY PARTIES INFORMATION-identification of key parties to the
transaction, such as servicers, trustees, depositors, sponsors, originators and
providers of credit enhancement or other support, including information about
any such party;
(4) STATIC POOL DATA-static pool data, as referenced in Item 1105 of
Regulation AB [17 CFR 229.1105], such as for the sponsor's and/or servicer's
portfolio, prior transactions or the asset pool itself; and
(5) ISSUER COMPUTATIONAL MATERIAL-to the extent that the information is
provided by the issuer, depositor, affiliated depositor, or sponsor, statistical
information displaying for a particular class of asset-backed securities the
yield, average life, expected maturity, interest rate sensitivity, cash flow
characteristics, total rate of return, option adjusted spread or other financial
or statistical information related to the class or classes under specified
prepayment, interest rate, loss or other hypothetical scenarios. (Where such
information is prepared by the underwriter or dealer, it is not issuer
information, even when derived from issuer information.)
EXHIBIT E
____________, 200__
Impac Secured Asset Corp.
1401 Dove Street, Newport Beach,
California, 92660
Re: Impac Secured Assets Corp., Mortgage Pass-Through Certificates
and Mortgage- Backed Notes, Series 200_-_, Class [___________]
Pursuant to Section 4.5 of the Underwriting Agreement, dated ________,
200_, between Impac Secured Assets Corp. and the Underwriter (the "Underwriter")
relating to the Mortgage Pass-Through Certificates ("Certificates") referenced
above, the undersigned does hereby certify that:
(a) The prepayment assumption used in pricing the Certificates was
_____% [___].
(b) Set forth below is (i) the first price, as a percentage of the
principal balance or notional amount, as applicable, of each
class of Certificates, at which 10% of the aggregate principal
balance or notional amount, as applicable, of each such class
of Certificates was sold to the public at a single price, if
applicable, or (ii) if 10% or more 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 or notional
amount, as applicable, 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
or notional amount, as applicable, of such class of
Certificates, or (iii) if less than 10% of the aggregate
principal balance or notional amount, as applicable, 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
or notional amount, as applicable, of such class of
Certificates calculated by: (1) estimating the fair market
value of each such class of Certificates not sold to the
public as of _________, 200_; (2) adding such estimated fair
market value to the aggregate purchase price of each class of
Certificates actually sold to the public as of such date; (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 of each class; and (5) for each class of
Certificates, dividing the product obtained for such class of
Certificates in clause (4) by the original principal balance
or notional amount, as applicable, of such class of
Certificates:
Certificates: ________
[* 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: