June 10, 2005
EXHIBIT 8.1
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June 10, 2005 |
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Impac Secured Assets Corp. |
Impac Funding Corporation |
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Impac Mortgage Holdings, Inc. |
UBS Securities LLC |
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Xxxxx Fargo Bank, N.A. |
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Opinion: Underwriting Agreement (Tax)
Impac Secured Assets Corp.
Mortgage Pass-Through Certificates, Series 2005-1
Ladies and Gentlemen:
We have acted as counsel to Impac Funding Corporation (the “Seller”), Impac Secured Assets Corp. (the “Depositor”) and Impac Mortgage Holdings, Inc. (“IMH”) in connection with (i) the Mortgage Loan Purchase Agreement, dated as of June 10, 2005 (the “Seller Sale Agreement”), among the Seller, the Depositor and IMH, (ii) the Pooling and Servicing Agreement, dated as of June 1, 2005 (the “Pooling and Servicing Agreement”), among the Seller (in such capacity, the “Master Servicer”), the Depositor and Xxxxx Fargo Bank, N.A. (the “Trustee”), and the certificates issued pursuant thereto designated as Mortgage Pass-Through Certificates, Series 2005-1 (collectively, the “Certificates”), (iii) the Underwriting Agreement, dated June 9, 2005 (the “Underwriting Agreement”), among the Seller, the Depositor, IMH and UBS Securities LLC (the “Underwriter”), (iv) the Purchase Agreement, dated June 10, 2005 (the “Purchase Agreement”), among the Seller, the Depositor, IMH and the Underwriter (in such capacity, the “Purchaser”), (v) the Prospectus Supplement, dated June 9, 2005 (the “Prospectus Supplement”), and the Prospectus to which it relates, dated August 30, 2004 (the “Base Prospectus” together with the Prospectus Supplement, the “Prospectus”), (vi) the Private Placement Memorandum, dated June 10, 2005 (the “Private Placement Memorandum”), and (vii) the Custodial Agreement, dated as of June 10, 2005 (the “Custodial Agreement”), among the Trustee, the Depositor, the Seller (in such capacity, the “Master Servicer”) and Deutsche Bank National Trust Company (the “Custodian”). The Seller Sale Agreement, the Pooling and Servicing Agreement, the Underwriting Agreement, the Purchase Agreement and the Custodial Agreement are collectively referred to herein as the “Agreements.” Capitalized terms not defined herein have the meanings assigned to them in the Agreements.
[TPW: NYLEGAL:341175.3] 17572-00200 06/09/2005 07:11 PM
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Opinion: Underwriting Agreement (Tax) |
Impac Secured Assets Corp., Series 2005-1
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June 10, 2005 |
In rendering this opinion letter, as to relevant factual matters we have examined the documents described above and such other documents as we have deemed necessary including, where we have deemed appropriate, representations or certifications of officers of parties thereto or public officials. In rendering this opinion letter, except for the matters that are specifically addressed in any opinion expressed below, we have assumed (i) the authenticity of all documents submitted to us as originals or as copies thereof, the conformity to the originals of all documents submitted to us as copies, the genuineness of all signatures and the legal capacity of natural persons, (ii) the necessary entity formation and continuing existence in the jurisdiction of formation, and the necessary licensing and qualification in all jurisdictions, of all parties to all documents, (iii) the necessary entity authorization, execution, authentication, payment, delivery and enforceability (as limited by bankruptcy and other insolvency laws) of and under all documents, and the necessary entity power and authority with respect thereto, and (iv) that there is not any other agreement that modifies or supplements the agreements expressed in any document to which this opinion letter relates in a manner that affects the correctness of any opinion expressed below. In rendering this opinion letter, except for any matter that is specifically addressed in any opinion expressed below, we have made no inquiry, have conducted no investigation and assume no responsibility with respect to (a) the accuracy of and compliance by the parties thereto with the representations, warranties and covenants as to factual matters contained in any document or (b) the conformity of the underlying assets and related documents to the requirements of any agreement to which this opinion letter relates. Each assumption herein is made and relied upon with your permission and without independent investigation.
This opinion letter is based upon our review of the documents referred to herein. We have conducted no independent investigation with respect to the facts contained in such documents and relied upon in rendering this opinion letter. We also note that we do not represent any of the parties to the transactions to which this opinion letter relates or any of their affiliates in connection with matters other than certain transactions. However, the attorneys in this firm who are directly involved in the representation of parties to the transactions to which this opinion letter relates, after such consultation with such other attorneys in this firm as they deemed appropriate, have no actual present knowledge of the inaccuracy of any fact relied upon in rendering this opinion letter.
In rendering this opinion letter, we do not express any opinion concerning any law other than the federal income tax laws of the United States, including without limitation the Internal Revenue Code of 1986, as amended (the “Code”) and the provisions thereof applicable to a real estate mortgage investment conduit (“REMIC”). We do not express any opinion herein with respect to any matter not specifically addressed in the opinions expressed below, including without limitation (i) any statute, regulation or provision of law of any county, municipality or other political subdivision or any agency or instrumentality thereof or (ii) the securities or tax laws of any jurisdiction.
The tax opinions set forth below are based upon the existing provisions of applicable law and regulations issued or proposed thereunder, published rulings and releases of applicable agencies or other governmental bodies and existing case law, any of which or the effect of any of which could change at any time. Any such changes may be retroactive in application and could modify the legal conclusions upon which such opinions are based. The opinions expressed herein
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Opinion: Underwriting Agreement (Tax) |
Impac Secured Assets Corp., Series 2005-1
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June 10, 2005 |
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:
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The statements made in the Base Prospectus and the Prospectus Supplement under the heading “Federal Income Tax Consequences”, to the extent that those statements constitute matters of law or legal conclusions with respect thereto, while not purporting to discuss all possible consequences of investment in the securities to which they relate, are correct in all material respects with respect to those consequences or matters that are discussed therein. |
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Assuming the accuracy of and compliance with the factual representations, covenants and other provisions of the Agreements without any waiver or modification thereof, for United States federal income tax purposes within the meaning of the Code in effect on the date hereof, (i) each of REMIC I, REMIC II and REMIC III will qualify as a REMIC, (ii) the REMIC I Regular Interests will represent ownership of the “regular interests” in REMIC I, and the Class R-I Certificates will constitute the sole class of “residual interests” in REMIC I, (iii) REMIC II Regular Interests will represent ownership of the “regular interests” in Remic II and the Class R-II Certificates will constitute the sole class of “residual interests” in REMIC II, (iv) each class of publicly offered certificates (exclusive of the right of the Class 5-A-1, Class 5-A-2, Class 5-A-3, Class 5-A 4, Class 5-A-5, Class 5-A-6 and Class 5-A-7 to recieive payments from the Basis Risk Shortfall Reserve Fund and the obligation of the Class 5-A-X Certificates to make payments to the Basis Risk Shortfall Reserve Fund) will represent ownership of “regular interests” in REMIC III and will generally be treated as debt instruments of REMIC III, and the Class R-II Interest will constitute the sole class of “residual interests” in REMIC III. |
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Opinion: Underwriting Agreement (Tax) |
Impac Secured Assets Corp., Series 2005-1
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June 10, 2005 |
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 (as defined in Treasury regulation section 1.6011-4), (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,
/S/ XXXXXXX XXXXXXXX & XXXX LLP
