EXHIBIT 1.1
IMH ASSETS CORP.
$_____________
(Approximately)
COLLATERALIZED ASSET-BACKED BONDS, SERIES 200_-_
UNDERWRITING AGREEMENT
____________, 200_
[Name of Underwriter]
[Address of Underwriter]
Ladies and Gentlemen:
IMH Corp., a California corporation (the "Company"), proposes to sell
to you (also referred to herein as the "Underwriter") Impac CMB Trust, Series
200_-_, Collateralized Asset-Backed Bonds, Series 200_-_Class A and Class R
Bonds other than a de minimis portion thereof (collectively, the "Bonds"),
having the aggregate principal amounts and interest rates as set forth above.
The Bonds will represent the indebtedness of the Trust Fund (as defined in the
Trust Agreement referred to below), to be established by the Company. The Trust
Fund will consist of primarily of a pool (the "Mortgage Pool") of conventional
one-to four-family, adjustable-rate first lien and fixed-rate first and second
lien residential mortgage loans (the "Mortgage Loans") as described in the
Prospectus Supplement (as hereinafter defined) to be sold by the Company. A de
minimis portion of the Class R Bonds will not be sold hereunder and will be held
by the Indenture Trustee.
The Mortgage Loans will be master serviced pursuant to a Servicing
Agreement (the "Servicing Agreement"), to be dated as of ____________, 200_
among IMH CMB Trust Series 200_-_,as Issuer (the "Issuer"), ________, as
Indenture Trustee (the "Indenture Trustee"), and Impac Funding Corporation as
Master Servicer ("Impac Funding" or the "Master Servicer") and subserviced by
____________.
Impac Mortgage Holdings, Inc. ("Impac") will sell the Mortgage Loans to
the Company pursuant to a Mortgage Loan Purchase Agreement to be dated as of
________ ___, 200_ (the "MLPA"), between Impac and the Company.
The Bonds will be issued pursuant to an Indenture (the "Indenture") to
be dated as of ______ __, 200_, between the Issuer and the Indenture Trustee and
will represent the indebtedness of the Issuer. The Issuer was created pursuant
to a Trust Agreement, dated ____ __, 200_ (the "Trust Agreement") among the
Company, as Depositor, _____, as Owner Trustee, and _____ as Certificate
Registrar, Indenture Trustee and Paying Agent. The Bonds will bear interest as
described in the Prospectus Supplement and are otherwise more fully described in
the Base Prospectus (as hereinafter defined) and the Prospectus Supplement,
which Base Prospectus and Prospectus Supplement the Company has furnished to the
Underwriters.
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
Collateralized Bonds (issuable in series), including the
Bonds, 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 Bonds 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 Bonds, 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 or as
of the Closing Date the Indenture, complied in all material
respects with the applicable requirements of the Act and the
1933 Act Regulations and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), as applicable. 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 Bonds 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
Bonds and the Indenture and the Trust 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 Trust Agreement will be true and correct in
all material respects.
(g) Each of the Bonds, when validly executed,
authenticated, issued and delivered in accordance with the
Indenture 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 Indenture and will
constitute legal, valid and binding obligations of the trust
enforceable in accordance with its terms and the terms of the
Indenture, 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 Trust 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 Bonds or any of the transactions contemplated herein
(together with the Mortgage Loan Purchase Agreement, the Trust
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
Bonds, 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 Bonds 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 Bonds, 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 Indenture Trustee of the
mortgages securing the Mortgage Loans (to the extent such
recordations are required pursuant to the Servicing Agreement
or the Indenture) 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
Indenture, (1) the Issuer will own the Mortgage Loans being
pledged by it to the Indenture Trustee pursuant to the
Indenture, 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
Indenture, and will not have assigned to any person other than
the Indenture Trustee any of its right, title or interest in
its Mortgage Loans, (2) the Issuer will have the power and
authority to pledge the Trust Fund to the Indenture Trustee
and to transfer the Bonds to the Underwriters and will have
duly authorized such action, (3) upon execution and delivery
by the trust to the Indenture Trustee of the Indenture, and
delivery of the Bonds to the Issuer, the Indenture Trustee
will have a valid, perfected security interest of first
priority in the Trust Fund free of Liens other than Liens
permitted by the Indenture and (4) upon payment and delivery
of the Bonds to the Underwriters, the Underwriters will
acquire ownership of the Bonds, free of Liens other than Liens
created or granted by the Underwriters.
(m) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of the
Transaction Documents and the Bonds 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 Indenture Trustee pursuant to the
Servicing Agreement and the Indenture 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 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 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
Accountants] are independent public accountants with respect
to the Company as required by the Act and the 1933 Act
Regulations.
1.2 Each Underwriter represents and warrants to and agrees
with the Company:
(a) 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 Bonds.
(b) As of the date hereof and as of the Closing Date,
each 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
each 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 each 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 Bonds,
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 Bonds set forth opposite their respective names in Schedule I
hereto, at a price equal to $[______________].
3. DELIVERY AND PAYMENT. Payment for the Bonds shall be made by wire
transfer of immediately available funds to an account designated by the Company,
and delivery of the Bonds shall be made at the office of Xxxxxxx Xxxxxxxx & Xxxx
LLP. Delivery of and payment for the Bonds 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
Bonds being herein called the "Closing Date"). Delivery of the Bonds 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. The Company agrees
to have the Bonds available for inspection, checking and packaging by the
Underwriter in New York, New York not later than 1:00 p.m. on the business day
prior to the Closing Date.
4. OFFERING BY UNDERWRITER.
4.1 It is understood that the Underwriter propose to offer the
Bonds for sale to the public as set forth in the Prospectus and that
the Underwriter will not offer, sell or otherwise distribute the Bonds
(except for the sale thereof in exempt transactions) in any state in
which the Bonds are not exempt from registration under Blue Sky laws or
state securities laws (except where the Bonds 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 Bond
or any security backed by the Mortgage Loans, any interest in any Bond
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 Bonds 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
Bonds; provided, that you shall not accept any such offer to
purchase a Bond or any interest in any Bond or Mortgage Loan
or otherwise enter into any Contract of Sale for any Bond, any
interest in any Bond 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 Bonds used
by an Underwriter in compliance with the terms of this
Agreement prior to the time such Underwriter has entered into
a Contract of Sale for Bonds 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 Bonds referred to in this free writing
prospectus and to solicit an offer to purchase the Bonds,
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 Bonds until we have
accepted your offer to purchase Bonds. We will not accept any
offer by you to purchase Bonds, and you will not have any
contractual commitment to purchase any of the Bonds until
after you have received the Definitive Free Writing
Prospectus. You may withdraw your offer to purchase Bonds 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 Bonds and
used by an Underwriter in connection with marketing the Bonds,
including the Definitive Free Writing Prospectus, shall
prominently set forth substantially the following statement:
The Bonds referred to in these materials are being sold when,
as and if issued. You are advised that Bonds may not be issued
that have the characteristics described in these materials.
Our obligation to sell such Bonds 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 Bonds, 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 Bonds 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, an
Underwriter shall not convey or deliver any Written
Communication to any person in connection with the initial
offering of the Bonds, 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) Each 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 an 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 XXXXX ON THE SEC
WEB SITE AT XXX.XXX.XXX. 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) Each 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 Bonds after such terms have been
established for all classes of Bonds 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 an 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 an Underwriter possesses actual
knowledge that, as of the date on which an investor entered
into an agreement to purchase any Bonds, 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 does 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 Bonds 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) Each 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 Bonds. In addition, each 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 Bonds 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 Bonds;
(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 Bonds
received by such Underwriter, the identity of the
offeror, the date the offer was made and the proposed
terms and allocation of the Bonds 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 Bonds 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 Bonds 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
Bond.
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 ceritificate, substantially in the form of Exhibit E
attached hereto, setting forth (i) if less than 10% of the aggregate
principal balance of the Bonds 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 the Bonds 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 of the Bonds, then the weighted average
price at which the Bonds of such class were sold expressed as a
percentage of the principal balance of the Bonds sold, or (c) the first
single price at which at least 10% of the aggregate principal balance
of the Bonds was sold to the public, (ii) the prepayment assumption
used in pricing such Bonds, 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 Bonds 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 an 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 an 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 Bonds (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 Bonds, except in compliance with applicable laws and regulations.
Each Underwriter further agrees that (i) if it delivers to an investor
the Prospectus in .pdf format, upon such Underwriter's receipt of a
request from the investor within the period for which delivery of the
Prospectus is required, such Underwriter will promptly deliver or cause
to be delivered to the investor, without charge, a paper copy of the
Prospectus and (ii) it will provide to the Company any Free Writing
Prospectuses, or portions thereof, which the Company is required to
file with the Commission in electronic format and will use reasonable
efforts to provide to the Company such Free Writing Prospectuses, or
portions thereof, in either Microsoft Word(R) or Microsoft Excel(R)
format and not in a PDF, except to the extent that the Company, in its
sole discretion, waives such requirements.
4.7 In the event that the Underwriter uses a road show (as
defined in Rule 433) in connection with the offering of the Bonds, all
information in the road show will be provided orally only, and not as a
Written Communication. Each 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 Bonds or
the Issuer), (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 Bonds or the Issuer), (iii) of any written notification
received by the Company of the suspension of qualification of the Bonds
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 Bonds)
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 Bonds in which a prospectus relating to the Bonds 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 Bonds 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 Bonds shall be
outstanding, or until such time as the Underwriter shall cease to
maintain a secondary market in the Bonds, whichever first occurs, to
deliver to the Underwriter the annual statements as to compliance
delivered to the Indenture Trustee pursuant to Section 3.16 of the
Servicing Agreement and the annual statement of a firm of independent
public accountants furnished to the Indenture Trustee pursuant to
Section 3.17 of the 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 Bonds 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 Bonds; 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 Bonds, (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 Bonds, (c) fees and expenses of the Indenture Trustee and its
counsel, (d) the fees and expenses of [Name of 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 Bonds 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 Bonds, 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 [Name of 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 Bonds.
5.9 If, during the period after the Closing Date in which a
prospectus relating to the Bonds 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 Bonds 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 Bonds.
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 Bonds after such terms have been established for all
classes of Bonds 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 Bonds 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, each 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 Each 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 Bonds 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 Bonds shall be subject to the
following conditions:
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 Bonds 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 Bonds 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 Servicing Agreement, the Trust Agreement and the Indenture 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
and the Issuer in this Agreement and all other Transaction
Documents to which it is a party are true and correct in all
material respects; and
(b) each of the Company and the Issuer 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 Bonds have
been rated in one of the four highest grades by each of such
agencies rating that class of Bonds 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
Xxxxxxx Xxxxxxxx & Xxxx LLP, special counsel for the Company, dated the
Closing Date and substantially to the effect set forth in Exhibit X-0,
Xxxxxxx X-0 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 X-x and Exhibit B-2
and an opinion of [Name of Company's Counsel], counsel to Company,
substantially to the effect set forth in Exhibit B-3.
6.6 The Underwriter shall have received from counsel for the
Underwriter 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 Bonds", "Yield on the Bonds" agrees with the
records of the Company excluding any questions of legal interpretation.
6.8 The Bonds shall have been rated at least as described
directly below by [Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc. ("S&P")] and [Xxxxx'x Investors Service, Inc.
("Moody's")].
Class [S&P's] [Xxxxx'x]
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
[Indenture Trustee's Counsel] dated the Closing Date, substantially to
the effect set forth in Exhibit C.
6.10 The Underwriter shall have received from Xxxxxxx Xxxxxxxx
& 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 an 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 Bonds 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 an 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 related Underwriter on the other from
the offering of the Bonds 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 related 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 related Underwriter on the other shall be in the same proportions
that the purchase price paid by the related Underwriter to the Company
for the Bonds ("Net Proceeds") bears to the excess of (a) the purchase
prices paid by investors to the related Underwriter for the Bonds (the
"Public Offering Price") over (b) Net Proceeds. The relative fault of
the Company on the one hand and of the related 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 related 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 related
Underwriter or any person controlling the related 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 Bonds.
8. TERMINATION. This Agreement shall be subject to termination by the
Underwriter by notice given to the Company, (i) if the sale of the Bonds
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 Bonds 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 Bonds.
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 Bonds.
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 IMH Assets Corp., 0000 Xxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, Attention: General Counsel, or if sent
to Impac Funding, will be mailed, delivered, or telegraphed and confirmed to it
at Impac Mortgage Holdings, Inc., 0000 Xxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000, 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,
IMH ASSETS CORP.
By: _______________________________
Name:
Title:
IMPAC FUNDING CORPORATION
By: _______________________________
Name:
Title:
IMPAC MORTGAGE HOLDINGS, INC.
By: _______________________________
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
[UNDERWRITER]
By: _________________________________
Name:
Title:
SCHEDULE I
SCHEDULE I
BONDS
-------------------------------------------------------------------- -------------------------------------------------
UNDERWRITER CLASS A, CLASS M AND CLASS B BONDS
-------------------------------------------------------------------- -------------------------------------------------
$
-------------------------------------------------------------------- -------------------------------------------------
$
-------------------------------------------------------------------- -------------------------------------------------
$
-------------------------------------------------------------------- -------------------------------------------------
EXHIBIT A-1
OPINION OF XXXXXXX XXXXXXXX & XXXX LLP RE: CLOSING OPINION
_______________, 200__
Addressees
Opinion: Underwriting Agreement
IMH Assets Corp.
COLLATERALIZED ASSET-BACKED BONDS, SERIES 200__-__
Ladies and Gentlemen:
We have acted as counsel to Impac Funding Corporation ("Impac
Funding"), Impac Mortgage Holdings, Inc. (the "Seller"), IMH Assets Corp. (the
"Depositor") and Impac CMB Trust Series 200_-_ (the "Issuer") in connection with
(i) the Mortgage Loan Purchase Agreement, dated as of _________, 200__ (the
"Seller Sale Agreement"), between the Seller and the Depositor (ii) the Amended
and Restated Trust Agreement, dated as of __________, 200__ (the "Trust
Agreement" or the "Depositor Sale Agreement"), among the Depositor,
_________________ as owner trustee of the Issuer and _________________ (the
"Indenture Trustee") pursuant to which the trust certificates (the "Trust
Certificates") were issued, (iii) the Servicing Agreement, dated as of
____________, 200__ (the "Servicing Agreement"), among Impac Funding (the
"Master Servicer"), the Issuer and Indenture Trustee, (iv) the Indenture, dated
as of ____________, 200__ (the "Indenture"), between the Issuer and the
Indenture Trustee, and to the Collateralized Asset-Backed Bonds, Series 200_-__
(the "Bonds") issued pursuant thereto, (v) the Underwriting Agreement, dated as
of ___________, 200__ (the "Underwriting Agreement"), among Impac Funding, the
Depositor, the Seller, ________________( the "Underwriter"), (vi) the [Free
Writing Prospectus/Preliminary Prospectus] (including the Base Prospectus, as
defined below), dated __________, 200__ (the ["Free Writing
Prospectus/Preliminary Prospectus"]) [as used on [and before] [________(the
"Pricing Date")] (vii) 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") and (vii) the Guaranty Agreement, dated as of ___________,
200__ (the "Guaranty Agreement"), among the Indenture Trustee, the Issuer and
Impac Mortgage Holdings, Inc. (in such capacity, the "Guarantor"). The Seller
Sale Agreement, the Trust Agreement, the Servicing Agreement, the Indenture, the
Underwriting Agreement and the Guaranty 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 and, with respect to the opinions in paragraphs 3(i) and
(ii) and 4 below, the Certificate of the Seller, a copy of which is annexed as
Exhibit A and the accuracy of which we have assumed in rendering this opinion
letter.
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 Impac Funding, the Seller, the
Depositor or the Issuer 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
that party.
2. The Bonds are valid and legally binding obligations under the
laws of the State of New York, enforceable thereunder in
accordance with their terms against each obligor thereunder,
and are entitled to the benefits of the Indenture.
3. With respect to 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) 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) to our knowledge, any breach or
violation of any order of any United States federal or State
of New York court, agency or other governmental body.
4. With respect to the Issuer, to our knowledge, there is no
legal action, suit, proceeding or investigation before any
court, agency or other governmental body pending or threatened
(by written communication to it of a present intention to
initiate such action, suit or proceeding) against it, which,
either in one instance or in the aggregate, draws into
question the validity of, seeks to prevent the consummation of
any of the transactions contemplated by or would impair
materially its ability to perform its obligations under any of
the Agreements to which it is a party.
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 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.
6. 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 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.
7. The Registration Statement as of the date of the Prospectus
Supplement and the date hereof, [the Preliminary
Prospectus/Prospectuses as of the Pricing Date/Time of
Sale/their respective Pricing Dates/Times of Sale and the date
hereof ] and the Prospectus as of the date of the Prospectus
Supplement and the date hereof, other than 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.
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 [the
Preliminary Prospectus/Prospectuses] or the Prospectus or to
be filed as exhibits to the Registration Statement, and 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.
10. The statements made in the Base Prospectus [, the Free Writing
Prospectus(es)/Preliminary Prospectus(es)] and in the
Prospectus Supplement under the heading "Description of the
Bonds", insofar as those statements purport to summarize
certain provisions of the Bonds and the Indenture, provide a
fair summary of those provisions. The statements made in the
Base Prospectus [, the Free Writing Prospectus(es)/Preliminary
Prospectus(es)] and in the Prospectus Supplement 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.
11. 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" within the
meaning of the Investment Company Act of 1940, as amended.
12. The Class [__________] will be "mortgage related securities"
as defined in Section 3(a)(41) of the Securities Exchange Act
of 1934, as amended, so long as each such class is rated in
one of the two highest rating categories by at least one
"nationally recognized statistical rating organization" as
that term is used in that Section.
This 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
CERTIFICATE
OF
IMPAC MORTGAGE HOLDINGS, INC.
This Certificate is being delivered to Xxxxxxx Xxxxxxxx & Xxxx LLP
("TPW") for reliance hereon by TPW in rendering its opinion letter to which this
Certificate is annexed (the "Opinion Letter"). The undersigned understands,
acknowledges and agrees that the facts set forth in the Opinion Letter and this
Certificate are being relied upon by TPW in rendering the Opinion Letter and by
each addressee thereof and other parties to the transactions to which the
Opinion Letter relates in the consummation of those transactions. Capitalized
terms not defined herein have the meanings assigned to them in the Opinion
Letter and the Agreements. The undersigned hereby represents, warrants,
covenants and certifies, after reasonable investigation and review and
consultation as appropriate with its attorneys and independent accountants, as
follows:
1. With respect to 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, 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 order of any United States federal or State of New York court,
agency or other governmental body.
2. With respect to the Issuer, there is no legal action, suit,
proceeding or investigation before any court, agency or other governmental body
pending or threatened (by written communication to it of a present intention to
initiate such action, suit or proceeding) against it which either, in one
instance or in the aggregate, draws into question the validity of, seeks to
prevent the consummation of any of the transactions contemplated by or would
impair materially its ability to perform its obligations under any of the
Agreements to which it is a party.
The undersigned has executed this Certificate as of the date of the
Opinion Letter.
IMPAC MORTGAGE HOLDINGS, INC.
By: ____________________________
NAME:
TITLE:
EXHIBIT A-2
OPINION OF XXXXXXX XXXXXXXX & WOOD LLP RE: TAX MATTERS
______________, 200_
Addresses
Opinion: Underwriting Agreement (Tax)
IMH Assets Corp.
COLLATERALIZED ASSET-BACKED BONDS, SERIES 200_-__
Ladies and Gentlemen:
We have acted as counsel to Impac Funding Corporation ("Impac
Funding"), Impac Mortgage Holdings, Inc. (the "Seller"), IMH Assets Corp. (the
"Depositor") and Impac CMB Trust Series 200_-_ (the "Issuer") in connection with
(i) the Mortgage Loan Purchase Agreement, dated as of _________, 200__ (the
"Seller Sale Agreement"), between the Seller and the Depositor (ii) the Amended
and Restated Trust Agreement, dated as of __________, 200__ (the "Trust
Agreement" or the "Depositor Sale Agreement"), among the Depositor,
_________________ as owner trustee of the Issuer and _________________ (the
"Indenture Trustee") pursuant to which the trust certificates (the "Trust
Certificates") were issued, (iii) the Servicing Agreement, dated as of
____________, 200__ (the "Servicing Agreement"), among Impac Funding (the
"Master Servicer"), the Issuer and Indenture Trustee, (iv) the Indenture, dated
as of ____________, 200__ (the "Indenture"), between the Issuer and the
Indenture Trustee, and to the Collateralized Asset-Backed Bonds, Series 200_-__
(the "Bonds") issued pursuant thereto, (v) the Underwriting Agreement, dated as
of ___________, 200__ (the "Underwriting Agreement"), among Impac Funding, the
Depositor, the Seller, ________________( the "Underwriter"), (vi) the [Free
Writing Prospectus/Preliminary Prospectus] (including the Base Prospectus, as
defined below), dated __________, 200__ (the ["Free Writing
Prospectus/Preliminary Prospectus"]) [as used on [and before] [________(the
"Pricing Date")] (vii) 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") and (vii) the Guaranty Agreement, dated as of ___________,
200__ (the "Guaranty Agreement"), among the Indenture Trustee, the Issuer and
Impac Mortgage Holdings, Inc. (in such capacity, the "Guarantor"). The Seller
Sale Agreement, the Trust Agreement, the Servicing Agreement, the Indenture, the
Underwriting Agreement and the Guaranty 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"). 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, [the Free Writing
Prospectus(es)/Preliminary Prospectus(es),] 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. Under current United States federal income tax law as of the
Closing Date, based upon certain financial calculations
prepared at the request of the Underwriters concerning the
projected performance of the Mortgage Loans and projected
payments on the Bonds and assuming the accuracy of and
compliance with the representations, covenants and other
provisions of the Agreements without any waiver or
modification thereof, 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 Bonds, for federal
income tax purposes the Bonds will be treated as indebtedness
to a holder thereof other than the owner of the Trust
Certificates, and not as ownership interests in the Issuer,
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.
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-3
LETTER OF XXXXXXX XXXXXXXX & XXXX LLP RE: CERTAIN SECURITIES LAW MATTERS
_____________, 200_
Addressees
Supplementary Letter
IMH Assets Corp.
COLLATERALIZED ASSET-BACKED BONDS, SERIES 200_-_
Ladies and Gentlemen:
We have acted as counsel to Impac Funding Corporation ("Impac
Funding"), Impac Mortgage Holdings, Inc. (the "Seller"), IMH Assets Corp. (the
"Depositor") and Impac CMB Trust Series 200_-_ (the "Issuer") in connection with
(i) the Mortgage Loan Purchase Agreement, dated as of _________, 200__ (the
"Seller Sale Agreement"), between the Seller and the Depositor (ii) the Amended
and Restated Trust Agreement, dated as of __________, 200__ (the "Trust
Agreement" or the "Depositor Sale Agreement"), among the Depositor,
_________________ as owner trustee of the Issuer and _________________ (the
"Indenture Trustee") pursuant to which the trust certificates (the "Trust
Certificates") were issued, (iii) the Servicing Agreement, dated as of
____________, 200__ (the "Servicing Agreement"), among Impac Funding (the
"Master Servicer"), the Issuer and Indenture Trustee, (iv) the Indenture, dated
as of ____________, 200__ (the "Indenture"), between the Issuer and the
Indenture Trustee, and to the Collateralized Asset-Backed Bonds, Series 200_-__
(the "Bonds") issued pursuant thereto, (v) the Underwriting Agreement, dated as
of ___________, 200__ (the "Underwriting Agreement"), among Impac Funding, the
Depositor, the Seller, ________________( the "Underwriter"), (vi) the [Free
Writing Prospectus/Preliminary Prospectus] (including the Base Prospectus, as
defined below), dated __________, 200__ (the ["Free Writing
Prospectus/Preliminary Prospectus"]) [as used on [and before] [________(the
"Pricing Date")] (vii) 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") and (vii) the Guaranty Agreement, dated as of ___________,
200__ (the "Guaranty Agreement"), among the Indenture Trustee, the Issuer and
Impac Mortgage Holdings, Inc. (in such capacity, the "Guarantor"). The Seller
Sale Agreement, the Trust Agreement, the Servicing Agreement, the Indenture, the
Underwriting Agreement and the Guaranty 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 of [the Registration Statement], [the
Preliminary Prospectus(es)/Free Writing Prospectus(es)] the Prospectus, the
Agreements and certain certificates of fact and legal opinion letters. In
addition, we participated in discussions regarding the contents of the
Prospectus Supplement and related matters with representatives of the parties to
the Agreements and their respective counsel. 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 Registration Statement and the Prospectus. We are not advising
in this letter with respect to the Registration Statement or the Prospectus 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 Pricing Date(s)/ the date(s) of the Free
Writing Prospectus(es)/Preliminary Prospectus(es),]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 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
OPINION OF IN-HOUSE COUNSEL TO IMPAC FUNDING RE: CERTAIN MATTERS
____________, 200__
To the Addressees Listed
on Schedule A
Re: IMH Assets Corp.
COLLATERALIZED ASSET-BACKED BONDS,
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 Servicing Agreement, dated as of ___________,
200__, among the Company, as the master servicer (the "Master Servicer"), Impac
CMB Trust Series 200_-__, as issuer (the "Trust"), and _________________, as
indenture trustee (the "Indenture Trustee") and (ii) the Underwriting Agreement,
dated _________, 200__, among the Company, IMH Assets Corp., Impac Mortgage
Holdings, Inc., ______________(the "Underwriters"). The Agreements described in
(i) and (ii) 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 I 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 me 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 I 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 me 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 me.
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,
__________________________________________
SCHEDULE A
ADDRESSEES
EXHIBIT B-2
OPINION OF IN-HOUSE COUNSEL TO THE COMPANY RE: CERTAIN MATTERS
______________, 200__
To the Addressees Listed
on Schedule A
Re: IMH Assets Corp.
COLLATERALIZED ASSET-BACKED BONDS, SERIES 200_-__
Ladies and Gentlemen:
I am General Counsel to IMH 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__, between Impac Mortgage Holdings, Inc. ("IMH") and the
Company, pursuant to which IMH will sell to the Company, and contribute to the
capital thereof, the Mortgage Loans, (ii) the Underwriting Agreement, dated
_________, 200__ (the "Underwriting Agreement"), among the Company, IMH Assets
Corp., IMH, ____________(the "Underwriter"), pursuant to which the Company will
sell approximately $______________ of Collateralized Asset-Backed Bonds, Series
200_-__ to the Underwriter and (iii) the Amended and Restated Trust Agreement,
dated as of _____________, 200__, among the Company, as depositor and
_________________, as Owner Trustee of the Impac CMB Trust Series 200__-__ (the
"Trust") and Deutsche Bank National Trust Company as certificate registrar and
certificate paying agent. The agreements described in (i) through (iii) 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 I 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 me 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 I 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 me 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 me.
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,
---------------------------------
SCHEDULE A
ADDRESSEES
EXHIBIT B-3
OPINION OF COUNSEL TO IMH RE: CERTAIN MATTERS
_______________, 200__
Addressees
Re: Impac Mortgage Holdings, Inc.
IMH Assets Corp.
Impac CMB Trust Series 200_-__
COLLATERALIZED ASSET-BACKED BONDS. 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 Sale and Contribution Agreement, dated as of __________, 200_ (the
"Sale Agreement") between the Company and IMH Assets Corp., a California
corporation (the "Purchaser"); and (b) the Underwriting Agreement, dated
_______, 200_, by and among Countrywide Securities Corporation, _______________(
the "Underwriter"), the Purchaser, the Company, and Impac Funding Corp. (the
"Underwriting Agreement" and collectively with the Sale Agreement, 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.
In connection with our representation of the Company, and as a
basis for the opinion hereinafter set forth, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of the following
documents (collectively, the "Documents"):
7. The charter of the Company (the "Charter"), certified as of a recent
date by the State Department of Assessments and Taxation of Maryland (the
"SDAT");
8. The bylaws of the Company (the "Bylaws"), certified as of a recent
date by an officer of the Company;
9. Resolutions adopted by the Board of Directors of the Company
relating to the organization of the Company, the Transaction Documents and the
transactions contemplated thereunder certified as of a recent date by an officer
of the Company;
10. A certificate from the SDAT as to the good standing of the Company,
dated as of the closing date;
11. A certificate executed by an officer of the Company, dated as of a
recent date;
12. The Underwriting Agreement;
13. The Mortgage Loan Purchase Agreement; and
14. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth in this letter, subject to the
assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed, the
authenticity of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as certified, photostatic or
facsimile copies and the authenticity of the originals of such latter documents.
The phrase "known to us" is limited to the actual knowledge, without
independent inquiry, of the lawyers at our firm who have performed legal
services in connection with the issuance of this opinion.
Based upon the foregoing, and subject to the assumptions, limitations
and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under
and by virtue of the laws of the State of Maryland and is in good standing with
the SDAT. 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 law which will govern the
Transaction Documents and (b) that application of the laws of the State of New
York would not contravene a fundamental policy of the state (i) which has a
materially greater interest than the State of New York relating to 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 so far as is known to us, without
independent inquiry, 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. So far as is known to us without independent inquiry, 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 any 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. So far as is known to us without independent inquiry, 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 likely 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:
A. 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.
B. 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
_______________ - 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
OPINION OF INDENTURE TRUSTEE'S COUNSEL
________________, 200__
To Each of the Persons Listed
on Schedule I Attached Hereto
Re: IMH 200_-__ Indenture
DATED AS OF ___________, 200_
Ladies and Gentlemen:
We have acted as special New York counsel for
_____________________ (i) as certificate registrar and certificate paying agent
(the "Registrar") in connection with the transactions contemplated by the
Amended and Restated Trust Agreement dated as of ____________, 200_ among IMH
Assets Corp., as depositor (the "Depositor"), ______________________, as owner
trustee, ____________________, as indenture trustee (the "Trustee") and the
Registrar (the "Trust Agreement"), and (ii) as Trustee in connection with the
transactions contemplated by (a) the Indenture dated as of _______________, 200_
between Impac CMB Trust Series 200_-__, as issuer (the "Issuer") and the Trustee
(the "Indenture"), (b) the Servicing Agreement dated as of ____________, 200_
among Impac Funding Corporation, as master servicer (the "Master Servicer"), the
Issuer and the Trustee (the "Servicing Agreement"), (c) the Guaranty Agreement
dated as of ______________, 200_ among Impac Mortgage Holdings, Inc., as the
Issuer and the Trustee (the "Guaranty Agreement"), and (d) the Trust Agreement.
The Indenture, the Servicing Agreement and the Guaranty Agreement are
collectively referred to herein as the "Trustee Documents". The Trustee
Documents together with the Trust Agreement are collectively referred to herein
as the "Agreements". Capitalized terms used and not defined herein shall have
the meanings assigned to them 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 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 or the Registrar, as the case may be), and (ii) the performance by such
parties (other than the Trustee or the Registrar, as the case may be) 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 or the Registrar, as the case may be) . We
have further assumed that each party to each of the Agreements (other than the
Trustee or the Registrar, as the case may be) has complied with all legal
requirements pertaining to its status as such status relates to its rights to
enforce the Agreements against the Trustee or the Registrar, as the case may be.
Based upon the foregoing, it is our opinion that:
7. __________________ is a national banking association validly
existing under the laws of the United States of America.
8. The Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Trustee Documents, and has taken
all necessary action to authorize the execution, delivery and performance by it
of the Trustee Documents.
9. The Registrar has the requisite power and authority to execute,
deliver and perform its obligations under the Trust Agreement, and has taken all
necessary action to authorize the execution, delivery and performance by it of
the Trust Agreement.
10. Each of the Trustee Documents has been duly executed and delivered
by the Trustee, and constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its respective
terms, 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).
11. The Trust Agreement has been duly executed and delivered by the
Registrar.
We express no opinion as to any laws other than the law of the
State of New York and the federal laws of the United States.
This opinion is solely for the benefit of the addressees
hereof and may not be relied upon in any manner by any other person without our
prior written consent.
Very truly yours,
SCHEDULE I
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, indenture 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 an underwriter or dealer, it is not issuer
information, even when derived from issuer information.)
EXHIBIT E
___________, 200_
IMH Assets Corp.
0000 Xxxx Xxxxxx, Xxxxxxx Xxxxx,
Xxxxxxxxxx, 00000
Re: IMH Assets Corp., Impac CMB Trust Series 200_-_ and
Collateralized Asset-Backed Bonds, Series 200_-_, Class
[___________]
Pursuant to Section 4.5 of the Underwriting Agreement, dated ________,
200_, between IMH Assets Corp. and the Underwriter (the "Underwriter") relating
to the Collateralized Asset-Backed Bonds ("Bonds") referenced above, the
undersigned does hereby certify that:
(a) The prepayment assumption used in pricing the Bonds was _____%
[___].
(b) Set forth below is (i) the first price, as a percentage of the
principal balance of the Bonds, at which 10% of the aggregate
principal balance of the Bonds was sold to the public at a
single price, if applicable, or (ii) if 10% or more of a class
of Bonds 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 Bonds, then
the weighted average price at which the Bonds of such class
were sold expressed as a percentage of the principal balance
of the Bonds, or (iii) if less than 10% of the aggregate
principal balance of the Bonds has been sold to the public,
the purchase price for each such class of Bonds paid by the
Underwriters expressed as a percentage of the principal
balance of the Bonds calculated by: (1) estimating the fair
market value of each such class of Bonds not sold to the
public as of _________, 200_; (2) adding such estimated fair
market value to the aggregate purchase price of each class of
Bonds 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 Bonds in clause (3) by the
purchase price paid by the Underwriters for all the Bonds of
each class; and (5) for each class of Bonds, dividing the
product obtained for such class of Bonds in clause (4) by the
original principal balance of the Bonds:
Bonds: ________
[* less than 10% has been sold to the public]
The prices set forth above do not include accrued interest with respect
to periods before closing.
[_____________________]
By:_________________________________
Name:
Title:
