IMPAC SECURED ASSETS CORP. (Approximately) ASSET-BACKED CERTIFICATES, SERIES 200_-_ UNDERWRITING AGREEMENT
Exhibit
1.1
$____________
(Approximately)
ASSET-BACKED
CERTIFICATES, SERIES 200_-_
____________,
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”) Asset-Backed 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 and adjustable-rate, first lien, multifamily
mortgage loans having original terms to maturity up to 30 years (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 Asset-Backed
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇
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 ▇▇▇▇▇
ON
THE SEC WEB SITE AT ▇▇▇.▇▇▇.▇▇▇.
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® or Microsoft Excel® 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇
llp,
special
counsel for the Company, dated the Closing Date and substantially to the effect
set forth in Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ 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 ▇-▇ and Exhibit B-2 and an opinion of Sidley
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ 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 ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
(“S&P”)] and [▇▇▇▇▇'▇ Investors Service, Inc. (“▇▇▇▇▇'▇”)].
|
Class
|
[S&P’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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & 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., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel, or if sent to Impac Funding, will be mailed,
delivered, or telegraphed and confirmed to it at Impac Funding Corporation,
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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,
|
||
|
By:
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||
|
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ llp
RE:
CLOSING OPINION
|
[Date]
|
|
[Addressees]
|
Opinion:
Underwriting Agreement
Asset-Backed
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
Asset-Backed 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & WOOD llp
RE: TAX
MATTERS
|
[Date]
|
|
[Addressees]
|
Opinion:
Underwriting Agreement (Tax)
Asset-Backed
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
Asset-Backed 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
RE:
CERTAIN SECURITIES LAW MATTERS
[Date]
|
[Addressees]
|
Supplementary
Letter (Underwriting Agreement)
Asset-Backed
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
Asset-Backed 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
|
Asset-Backed
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 Asset-Backed 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.
|
Asset-Backed
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 Asset-Backed 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.
Asset-Backed
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 (“▇▇▇▇▇”)
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]
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To
Each of the Persons Listed
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on
Schedule A Attached Hereto
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Re: Impac
Secured Assets Corp. — Asset-Backed 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.
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇
Re: Impac
Secured Assets Corp., Asset-Backed Certificates, 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 Asset-Backed Certificates (“Certificates”) referenced above, the undersigned
does hereby certify that:
|
(a)
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The
prepayment assumption used in pricing the Certificates was _____%
[___].
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(b)
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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.
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[____________________]
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By:
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Name:
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Title:
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