EX-8.1 3 d58620_ex8-1.txt OPINION OF THACHER PROFFITT & WOOD EXHIBIT 8.1 March 28, 2002 Impac Secured Assets Corp. Impac Funding Corporation 1401 Dove Street 1401 Dove Street Newport Beach, California 92660 Newport Beach, California 92660 Impac Mortgage Holdings, Inc. Bankers Trust Company of California, N.A. 1401 Dove Street 1761 East St. Andrews Place Newport Beach, California 92660 Santa Ana, California 92705-4934 Bear, Stearns & Co. Inc. 383 Madison Avenue New York, New York 10179 Opinion: Underwriting Agreement Impac Secured Assets Corp. Mortgage Pass-Through Certificates. Series 2002-2 ------------------------------------------------- Ladies and Gentlemen: We have represented Impac Secured Assets Corp. (the "Company"), Impac Funding Corporation (the "Seller") and Impac Mortgage Holdings, Inc. ("IMH") in connection with (i) the Mortgage Loan Purchase Agreement, dated as of March 1, 2002 (the "Mortgage Loan Purchase Agreement"), among the Seller, the Company and IMH, (ii) the Pooling and Servicing Agreement, dated as of March 1, 2002 (the "Pooling and Servicing Agreement"), among the Company, the Seller (in such capacity, the "Master Servicer") and Bankers Trust Company of California, N.A. (the "Trustee") and the certificates issued pursuant thereto designated as Mortgage Pass-Through Certificates, Series 2002-2 (collectively, the "Certificates"), (iii) the Underwriting Agreement, dated March 25, 2002 (the "Underwriting Agreement"), among the Company, the Seller, IMH, and Bear, Stearns & Co. Inc. (the "Underwriter") pursuant to which certain Certificates were sold (the "Underwritten Certificates"), (iv) the Purchase Agreement, dated March 28, 2002 (the "Purchase Agreement"), among the Company, the Seller, IMH and the Underwriter (the "Purchaser") pursuant to which certain Certificates were sold (the "Purchased Certificates"), (v) the Prospectus Supplement, dated March 25, 2002 (the "Prospectus Supplement") and the Base Prospectus to which it relates, dated March 25, 2001 (the "Base Prospectus"; together with the Prospectus Supplement, Impac Secured Assets Corp., Series 2002-2 Page 2. March 28, 2002 the "Prospectus") and (vi) the Private Placement Memorandum, dated March 28, 2002 (the "Private Placement Memorandum"). The Mortgage Loan Purchase Agreement, the Pooling and Servicing Agreement, the Underwriting Agreement and the Purchase Agreement are collectively referred to herein as the "Agreements." Capitalized terms not defined herein have the meanings assigned to them in the Agreements. In rendering this opinion letter, as to relevant factual matters we have examined the documents described above and such other documents as we have deemed necessary including, where we have deemed appropriate, representations or certifications of officers of parties thereto or public officials. In rendering this opinion letter, except for the matters that are specifically addressed in the opinions expressed below, we have assumed (i) the authenticity of all documents submitted to us as originals or as copies thereof, and the conformity to the originals of all documents submitted to us as copies, (ii) the necessary entity formation and continuing existence in the jurisdiction of formation, and the necessary licensing and qualification in all jurisdictions, of all parties to all documents, (iii) the necessary authorization, execution, delivery and enforceability of all documents, and the necessary entity power with respect thereto, and (iv) that there is not any other agreement that modifies or supplements the agreements expressed in any document to which this opinion letter relates and that renders any of the opinions expressed below inconsistent with such document as so modified or supplemented. In rendering this opinion letter, except for the matters that are specifically addressed in the opinions expressed below, we have made no inquiry, have conducted no investigation and assume no responsibility with respect to (a) the accuracy of and compliance by the parties thereto with the representations, warranties and covenants as to factual matters contained in any document or (b) the conformity of the underlying assets and related documents to the requirements of any agreement to which this opinion letter relates. In rendering this opinion letter, any opinion expressed herein with respect to the enforceability of any right or obligation is subject to (i) general principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance and injunctive relief, regardless of whether considered in a proceeding in equity or at law, (ii) bankruptcy, insolvency, receivership, reorganization, liquidation, voidable preference, fraudulent conveyance and transfer, moratorium and other similar laws affecting the rights of creditors and secured parties, as to which laws we express no opinion herein, (iii) the effect of certain laws, regulations and judicial and other decisions upon 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 and (iv) public policy considerations, 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. This opinion letter is based solely upon our review of the documents referred to herein. We have conducted no independent investigation with respect to the facts contained in such documents and relied upon in rendering this opinion letter. We also note that we do not represent any of the parties to the transactions to which this opinion letter relates or any of their affiliates in connection with matters other than certain transactions. However, the attorneys in this firm who are directly Impac Secured Assets Corp., Series 2002-2 Page 3. March 28, 2002 involved in the representation of parties to the transactions to which this opinion letter relates have no actual present knowledge of the inaccuracy of any fact relied upon in rendering this opinion letter. In addition, if we indicate herein that any opinion is based on our knowledge, our opinion is based solely on such actual present knowledge of such attorneys. In rendering this opinion letter, we do not express any opinion concerning any law other than the laws of the State of New York and the federal laws of the United States including without limitation the Securities Act of 1933, as amended (the "1933 Act") and Sections 860A through 860G (the "REMIC Provisions") of the Internal Revenue Code of 1986 (the "Code") applicable to a real estate mortgage investment conduit ("REMIC") and applicable regulations thereunder and current judicial and administrative authority with respect thereto. 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 federal tax opinions set forth below are based upon the existing provisions of the Code and Treasury regulations issued or proposed thereunder, published Revenue Rulings and releases of the Internal Revenue Service and existing case law, any of which could be changed at any time. Any such changes may be retroactive in application and could modify the legal conclusions upon which such opinions are based. The opinions expressed herein are limited as described below, and we do not express any opinion on any other legal or income tax aspect of the transactions contemplated by the documents relating to the transaction. Based upon and subject to the foregoing, it is our opinion that: 1. Each of the Company and the Master Servicer has been legally incorporated under the laws of the State of California and IMH has been legally incorporated under the laws of the State of Maryland and, based upon a certificate of good standing issued by each such State, is validly existing as a corporation in good standing under the laws of that State, and has the requisite entity power and authority to execute and deliver the Agreements and to perform its obligations thereunder. 2. The issuance, offer, sale and delivery of the Certificates have been duly authorized by the Company. 3. Each of the Agreements to which the Company, the Master Servicer and IMH is a party assuming the necessary authorization, execution and delivery thereof by the parties thereto, is a valid and legally binding agreement under the laws of the State of New York, enforceable thereunder against the parties thereto in accordance with its terms. 4. The Certificates, assuming the necessary execution, authentication and delivery thereof and payment therefor in accordance with the applicable Agreements, are Impac Secured Assets Corp., Series 2002-2 Page 4. March 28, 2002 validly issued and outstanding and are entitled to the benefits of the Pooling and Servicing Agreement. 5. With respect to each of the Company, the Master Servicer and IMH, the performance of its obligations under the Agreements and the consummation of the transactions contemplated thereby do not require any consent, approval, authorization or order of, filing with or notice to any United States federal or State of New York court, agency or other governmental body, except such as may be required under the securities laws of any State or such as have been obtained, effected or given. 6. With respect to each of the Company, the Master Servicer and IMH, the performance of its obligations under the Agreements and the consummation of the transactions contemplated thereby will not result in (i) to our knowledge, any breach, violation or acceleration of or default under any indenture or other material agreement or instrument to which it is a party or by which it is bound or (ii) any breach or violation of any United States federal or State of New York statute or regulation or, to our knowledge, any order of any United States federal or State of New York court, agency or other governmental body. 7. The Registration Statement has become effective under the 1933 Act. To our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and not withdrawn, and no proceedings for that purpose have been instituted or threatened under Section 8(d) of the 1933 Act. 8. The Registration Statement as of its effective date, the date of the Prospectus Supplement and the date hereof, and the Prospectus as of the date of the Prospectus Supplement and hereof, other than any financial and statistical information, Computational Materials and ABS Term Sheets contained or incorporated by reference therein as to which we express no opinion herein, complied as to form in all material respects with the requirements of the 1933 Act and the applicable rules and regulations thereunder. 9. To our knowledge, there are no material contracts, indentures or other documents of a character required to be described or referred to in either the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than any Computational Materials and ABS Term Sheets, as to which we express no opinion herein, and those described or referred to therein or filed or incorporated by reference as exhibits thereto. 10. The statements made in the Prospectus Supplement and the Basic Prospectus under the headings "Description of the Certificates" and "Description of the Securities," insofar as such statements purport to summarize certain provisions of the Certificates and the Pooling and Servicing Agreement, provide a fair summary of such provisions. The statements made in the Basic Prospectus and the Prospectus Impac Secured Assets Corp., Series 2002-2 Page 5. March 28, 2002 Supplement, as the case may be, under the headings "Certain Federal Income Tax Consequences," "Certain Legal Aspects of Mortgage Loans--Applicability of Usury Laws," and "--Alternative Mortgage Instruments" and "ERISA Considerations," to the extent that they constitute matters of State of New York or federal law or legal conclusions with respect thereto, while not purporting to discuss all possible consequences of investment in the Certificates, are correct in all material respects with respect to those consequences or matters that are discussed therein. 11. The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended. The Trust Fund created by the Pooling and Servicing Agreement is not an "investment company" or "controlled by" an "investment company" within the meaning of the Investment Company Act of 1940, as amended. 12. The Underwritten Certificates (other than the Class M-2 Certificates and the Class M-3 Certificates) will be "mortgage related securities" as defined in Section 3(a)(41) of the Securities Exchange Act of 1934, as amended, so long as each such class is rated in one of the two highest rating categories by at least one "nationally recognized statistical rating organization" as that term is used in that Section. 13. Assuming compliance with the provisions of the Pooling and Servicing Agreement, for federal income tax purposes, each of REMIC 1 and REMIC 2 will qualify as a REMIC within the meaning of the REMIC Provisions of the Code and the Class R-l Interest will constitute the sole class of "residual interests" in REMIC 1. Each class of Certificates (other than the Class R Certificates and the Class A-IO Certificates) and the Class A-IO Regular Interest will represent ownership of "regular interests" in REMIC 2 and will generally be treated as debt instruments of REMIC 2 and the Class R-2 Interest will constitute the sole class of "residual interests" in REMIC 2, within the meaning of the REMIC Provisions in effect on the date hereof. 14. Assuming compliance with the provisions of the Pooling and Servicing Agreement, for City and State of New York income and corporation franchise tax purposes, each of REMIC 1 and REMIC 2 will be classified as a REMIC and not as a corporation, partnership or trust, in conformity with the federal income tax treatment of the Trust Fund. Accordingly, each of REMIC 1 and REMIC 2 will be exempt from all City and State of New York taxation imposed on its income, franchise or capital stock, and its assets will not be included in the calculation of any franchise tax liability. Impac Secured Assets Corp., Series 2002-2 Page 6. March 28, 2002 This opinion letter is rendered for the sole benefit of each addressee hereof, 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 to (i) any applicable rating agency, institution providing credit enhancement or liquidity support or governmental authority, (ii) any accountant or attorney for any person or entity entitled hereunder to rely hereon or to whom or which this opinion letter may be made available as provided herein and (iii) as otherwise required by law. We assume no obligation to revise, supplement or withdraw this opinion letter, or otherwise inform any addressee hereof, or other person or entity entitled to rely hereon, 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 entitled to rely hereon 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 an addressee for which we have acted as counsel, we are not acting as counsel for such other person or entity and have assumed and are assuming no responsibility to advise such other person or entity with respect to the adequacy of this opinion letter for its purposes. Very truly yours, /s/ Thacher Proffitt & Wood