EXHIBIT 8.1
January 30, 2003
Bear, Xxxxxxx & Co. Inc. UBS Warburg LLC
000 Xxxxxxx Xxxxxx 1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Impac Mortgage Holdings, Inc. Impac Funding Corporation
0000 Xxxx Xxxxxx 0000 Xxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
IMH Assets Corp. Deutsche Bank National Trust Company
0000 Xxxx Xxxxxx 0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Wilmington Trust Company
(as Owner Trustee)
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Opinion: Underwriting Agreement
IMH Assets Corp
Collateralized Asset-Backed Bonds, Series 2003-2F
-------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Impac Funding Corporation ("Impac
Funding"), Impac Mortgage Holdings, Inc. (the "Seller") and IMH Assets Corp.
(the "Depositor"), in connection with (i) the Mortgage Loan Sale and
Contribution Agreement, dated as of January 30, 2003 (the "Mortgage Loan Sale
Agreement"), between the Seller and the Depositor, (ii) the Amended and Restated
Trust Agreement, dated as of January 30, 2003 (the "Trust Agreement"), among the
Depositor, Wilmington Trust Company as owner trustee of the Impac CMB Trust
Series 2003-2F (the "Issuer") and Deutsche Bank National Trust Company as
certificate registrar and certificate paying agent pursuant to which the
Depositor will sell the Mortgage Loans to the Issuer (the "Trust Fund") and the
Issuer will issue to the Depositor the trust certificates (the "Trust
Certificates") evidencing the entire ownership interest in the Issuer, subject
to the related Indenture described below, (iii) the Servicing Agreement, dated
as of January 30, 2003 (the Servicing Agreement"), between Impac Funding as
master servicer (the "Master Servicer"), the
IMH Assets Corp., Series 2003-2F Page 2.
January 30, 2003
Trust and Deutsche Bank National Trust Company as indenture trustee (the
"Indenture Trustee"), and the related Subservicing Agreement, dated June 25,
1996, between the Master Servicer and Wendover Funding, Inc., (the "Subservicing
Agreement"), (iv) the Indenture, dated as of January 30, 2003 (the "Indenture"),
between the Trust and the Indenture Trustee relating to the Collateralized
Asset-Backed Bonds, Series 2003-2F (the "Bonds") issued pursuant thereto by the
Trust and secured by the Mortgage Loans and other assets, (v) the Underwriting
Agreement, dated as of January 28, 2003 (the "Underwriting Agreement"), among
Impac Funding, the Depositor, the Seller, and Bear, Xxxxxxx & Co. Inc. and UBS
Warburg LLC (together, the "Underwriters") pursuant to which the Trust will sell
the Bonds to the Underwriters, and (vi) the Prospectus Supplement, dated January
28, 2003 (the "Prospectus Supplement"), and the Base Prospectus to which it
relates, dated November 22, 2002 (the "Base Prospectus"; together with the
Prospectus Supplement, the "Prospectus"). The Mortgage Loan Sale Agreement, the
Trust Agreement, Servicing Agreement, Subservicing Agreements, Indenture,
Underwriting Agreement and Prospectus 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 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,
IMH Assets Corp., Series 2003-2F Page 3.
January 30, 2003
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 solely upon our review of the documents
referred to herein. We have conducted no independent investigation with respect
to the facts contained in such documents and relied upon in rendering this
opinion letter. We also note that we do not represent any of the parties to the
transactions to which this opinion letter relates or any of their affiliates in
connection with matters other than certain transactions. However, the attorneys
in this firm who are directly involved in the representation of parties to the
transactions to which this opinion letter relates have no actual present
knowledge of the inaccuracy of any fact relied upon in rendering this opinion
letter. In addition, if we indicate herein that any opinion is based on our
knowledge, our opinion is based solely on the actual present knowledge of such
attorneys.
In rendering this opinion letter, we do not express any opinion
concerning any law other than the laws of the State of New York, and the federal
laws of the United States including without limitation the Securities Act of
1933, as amended (the "1933 Act"). We do not express any opinion herein with
respect to any matter not specifically addressed in the opinions expressed
below, including without limitation (i) any statute, regulation or provision of
law of any county, municipality or other political subdivision or any agency or
instrumentality thereof or (ii) the securities or tax laws of any jurisdiction.
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 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 Agreements to which Impac Funding, the Seller or
the Depositor is a party has been duly authorized, executed
and delivered by the Seller, the Depositor or Issuer, as the
case may be, and, other than the Trust Agreement which is the
subject of a separate opinion letter and assuming the
necessary authorization, execution and delivery thereof by the
Issuer and the other parties thereto, is a valid and legally
binding agreement under the laws of the State of
IMH Assets Corp., Series 2003-2F Page 4.
January 30, 2003
New York, enforceable thereunder in accordance with its terms
against the Seller, the Depositor or Issuer, as the case may
be.
2. The issuance, offer, sale and delivery of the Bonds have been
duly authorized by the Depositor.
3. The Bonds, assuming the necessary execution, authentication
and delivery thereof and payment therefor in accordance with
the applicable Agreements, are valid and legally binding
obligations under the laws of the State of New York,
enforceable thereunder in accordance with their terms against
the Issuer, and are entitled to the benefits of the Indenture.
4. With respect to each of the Issuer and the Depositor, and, to
our knowledge, Impac Funding and the Seller, the performance
of its obligations under each of the Agreements to which it is
a party and the consummation of the transactions contemplated
thereby do not require any consent, approval, authorization or
order of, filing with or notice to any United States federal
or State of New York court, agency or other governmental body,
except such as may be required under the securities laws of
any State of the United States or such as have been obtained,
effected or given.
5. With respect to each of Impac Funding, the Seller, the
Depositor and the Issuer, the performance of its obligations
under each of the Agreements to which it is a party and the
consummation of the transactions contemplated thereby will not
result in (i) any breach or violation of its certificate of
incorporation or bylaws, (ii) 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 (iii) to our knowledge as to Impac
Funding and the Seller, any breach or violation of any United
States federal or State of New York statute or regulation or,
to our knowledge, any order of any United States federal or
State of New York court, agency or other governmental body.
6. The Registration Statement has become effective under the 1933
Act. To our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and not withdrawn, and no proceedings for that purpose have
been instituted or threatened under Section 8(d) of the 1933
Act.
7. The Registration Statement as of the date of the Prospectus
Supplement and the date hereof, and the Prospectus as of the
date of the Prospectus Supplement and the date hereof, other
than any financial and statistical information, Computational
Materials and ABS Term Sheets contained or incorporated by
reference therein as to which we express no opinion herein,
complied as to form in all material respects with the
requirements of the 1933 Act and the applicable rules and
regulations thereunder.
8. To our knowledge, there are no material contracts, indentures
or other documents of a character required to be described or
referred to in either the Registration
IMH Assets Corp., Series 2003-2F Page 5.
January 30, 2003
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement, other than any Computational Materials
and ABS Term Sheets as to which we express no opinion herein,
and those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
9. The statements made in the Prospectus under the heading
"Description of the Bonds," insofar as such statements purport
to summarize certain provisions of the Bonds and the
Indenture, provide a fair summary of such provisions. The
statements made in the Prospectus under the headings "Federal
Income Tax Consequences," "Legal Aspects of Mortgage
Loans--Applicability of Usury Laws," and "--Alternative
Mortgage Instruments" and "ERISA Considerations," to the
extent that they constitute matters of United States federal
or State of New York law or legal conclusions with respect
thereto, while not purporting to discuss all possible
consequences of investment in the Bonds, are correct in all
material respects with respect to those consequences or
matters that are discussed therein.
10. The Indenture has been qualified under the Trust Indenture Act
of 1939, as amended. Neither the Issuer nor the Trust Fund
created by the Indenture is an "investment company" or
"controlled by" an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
11. The Class A and Class M-1 Bonds 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.
12. Under current United States federal income tax law as of the
Closing Date, based upon certain financial calculations
prepared by the Initial Purchaser concerning the projected
performance of the Underlying Certificates and projected
payments on the Notes and assuming compliance with the
provisions of the Indenture and the Deposit Trust Agreement,
although there are no regulations, rulings, or judicial
precedents addressing the characterization for federal income
tax purposes of securities having terms substantially the same
as those of the Notes, for federal income tax purposes the
Notes will be treated as indebtedness and the Issuer will not
be classified as (i) an association taxable as a corporation,
(ii) a publicly traded partnership taxable as a corporation or
(iii) a taxable mortgage pool for federal income tax purposes.
IMH Assets Corp., Series 2003-2F Page 6.
January 30, 2003
This opinion letter is rendered for the sole benefit of each addressee
hereof with respect to the matters specifically addressed herein, and no other
person or entity is entitled to rely hereon. Copies of this opinion letter may
not be made available, and this opinion letter may not be quoted or referred to
in any other document made available, to any other person or entity except (i)
to any applicable rating agency, institution providing credit enhancement or
liquidity support or governmental authority, (ii) to any accountant or attorney
for any person or entity entitled hereunder to rely hereon or to whom or which
this opinion letter may be made available as provided herein and (iii) as
otherwise required by law. We assume no obligation to revise, supplement or
withdraw this opinion letter, or otherwise inform any addressee hereof or other
person or entity with respect to any change occurring subsequent to the delivery
hereof in any applicable fact or law or any judicial or administrative
interpretation thereof, even though such change may affect a legal analysis or
conclusion contained herein. In addition, no attorney-client relationship exists
or has existed by reason of this opinion letter between our firm and any
addressee hereof or other person or entity except for any addressee that is
identified in the first paragraph hereof as a person or entity for which we have
acted as counsel in rendering this opinion letter. In permitting reliance hereon
by any person or entity other than such an addressee for which we have acted as
counsel, we are not acting as counsel for such other person or entity and have
not assumed and are not assuming any responsibility to advise such other person
or entity with respect to the adequacy of this opinion letter for its purposes.
Very truly yours,
/s/ Xxxxxxx Xxxxxxxx & Wood
