IMPAC SECURED ASSETS
CORP.
IMPAC FUNDING
CORPORATION
IMPAC MORTGAGE HOLDINGS,
INC.
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-1
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Class 1-A-1-1
Certificates
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Class 1-A-1-2
Certificates
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Class 1-A-2A Certificates
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Class 1-A-2B Certificates
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Class 1-A-2C Certificates
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UNDERWRITING
AGREEMENT
Countrywide
Securities Corporation
Calabasas,
California 91302
Merrill Lynch,
Pierce, Fenner & Smith Incorporated
4 World
Financial Center, 10/F
Impac Secured Assets Corp., a California
corporation (the “Company”), proposes to sell to you
(the “Underwriters”) the respective amounts set forth
opposite your respective names in Schedule I attached hereto of
Mortgage Pass-Through Certificates, Series 2006-1, Class 1-A-1,
Class 1-A-2A, Class 1-A-2B, Class 1-A-2C, Class 1-M-1, Class 1-M-2,
Class 1-M-3, Class 1-M-4, Class 1-M-5, Class 1-M-6, Class 1-M-7,
Class 1-M-8, Class 1-B, Class 2-A-1, Class 2-A-2, Class 2-M-1,
Class 2-M-2, Class 2-M-3 and Class 2-B Certificates (collectively,
the “Certificates”), having the aggregate principal
amounts and Pass-Through Rates as set forth in Schedule I. The
Certificates, together with the Class C, Class P and Class R
Certificates (collectively, the “Non-Offered
Certificates”) of the same series, will evidence the entire
beneficial interest in the Trust Fund (as defined in the Pooling
and Servicing Agreement referred to below), consisting primarily of
a pool of one-to four-family, fixed-rate first lien, and fixed-rate
and adjustable-rate first and second lien mortgage loans (the
“Group 1 Mortgage Loans”) and adjustable-rate first
lien multifamily mortgage loans (the “Group 2 Mortgage
Loans” and together with the Group 1 Mortgage Loans, the
“Mortgage Loans”) as described in the Prospectus
Supplement (as hereinafter defined) to be sold by the
Company.
The Certificates will be issued pursuant to a
pooling and servicing agreement, dated as of March 1, 2006 (the
“Pooling and Servicing Agreement”), among the Company,
Impac Funding Corporation, as master servicer (“Impac
Funding” or the “Master Servicer”) and Deutsche
Bank National Trust Company, as trustee (the
“Trustee”). The Certificates are described more fully
in the Base Prospectus, the Free Writing Prospectus and the
Prospectus Supplement (each as hereinafter defined).
The Certificates will represent ownership
interests in the trust fund (the “Trust Fund”) created
by the Pooling and Servicing Agreement. The Trust Fund will be
secured primarily by the Mortgage Loans.
Impac Funding sold the Mortgage Loans to the
Company pursuant to a Mortgage Loan Purchase Agreement dated as of
March 30, 2006 (the “Mortgage Loan Purchase Agreement”)
among Impac Funding, the Company and Impac Mortgage Holdings, Inc.
(“IMH”) as guarantor.
1.
Representations, Warranties and
Covenants .
1.1 Each of the Company, Impac Funding and IMH
represents and warrants to, and agrees with the Underwriters as
follows:
(a) The Company has filed with the Securities and
Exchange Commission (the “Commission”) a registration
statement (No. 333-126304) on Form S-3 for the registration under
the Securities Act of 1933, as amended (the “Act”), of
Mortgage Pass-Through Certificates (issuable in series), including
the Certificates, which registration statement has become
effective, and a copy of which, as amended to the date hereof, has
heretofore been delivered to the Underwriters. 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 March 29, 2006
(the “Prospectus Supplement”), to the prospectus dated
March 29, 2006 (the “Basic Prospectus”), relating to
the Certificates and the method of distribution thereof. Such
registration statement (No. 333-126304) 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 March 30, 2006 (the
“Closing Date”) for use in connection with the offering
of the Certificates, are hereinafter called the
“Prospectus”. The Company prepared a Free Writing
Prospectus containing substantially all information that will
appear in the Prospectus Supplement and minus specific sections
including the “Method of Distribution” section (such
Free Writing Prospectus, together with the Basic Prospectus, the
“Definitive Free Writing Prospectus”).
(b) The Registration Statement has become effective
and no stop order suspending the effectiveness of the Registration
Statement is in effect, no proceedings for such purpose are pending
before or threatened by the Commission, and the Registration
Statement as of the effective date (the “Effective
Date”, as defined in this paragraph), and the Prospectus, as
of the date of the Prospectus Supplement, complied in all material
respects with the applicable requirements of the Act and the 1933
Act Regulations. The Registration Statement, as of the Effective
Date, did not contain any untrue statement of a material fact and
did not omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and the Prospectus, as of the date of the Prospectus Supplement,
did not, and as of the Closing Date will not, contain an untrue
statement of a material fact and did not and will not omit to state
a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that none of the Company, Impac
Funding or IMH makes any representations or warranties as to any
information contained in or omitted from the portions of the
Prospectus set forth under the caption “Method of
Distribution” relating to the Certificates (the
“Underwriters’ Information”). In addition, 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
Underwriters, 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, Impac Funding or IMH to the Underwriters. The Company
acknowledges that the Underwriters’ 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
Underwriters’ Information is correct with respect to you and
the Certificates you underwrite.
(c) Each of the Company, Impac Funding and IMH has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of California, with
respect to the Company and Impac Funding, and the State of
Maryland, with respect to IMH, and has the requisite corporate
power and authority to own its properties and to conduct its
business as presently conducted by it and, in the case of the
Company and Impac Funding, as described in the Prospectus and to
enter into and perform its obligations under this Agreement, the
Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreement, and in the case of IMH, as described in the Prospectus
and to enter into this Agreement and the Mortgage Loan Purchase
Agreement.
(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) Each of the Company, Impac Funding and IMH is
not in violation of its Certificate of Incorporation or By-Laws or
any agreement the violation of which would have a material adverse
effect on the Company.
(f) The Certificates and the Pooling and Servicing
Agreement conform in all material respects to the description
thereof contained in the Prospectus and the representations and
warranties of the Company in the Pooling and Servicing Agreement
will be true and correct in all material respects.
(g) Each of the Certificates, when validly executed,
authenticated, issued and delivered in accordance with the Pooling
and Servicing Agreement and paid for in accordance with this
Agreement, will be duly and validly issued and outstanding and
entitled to the benefits and security afforded by the Pooling and
Servicing Agreement and will constitute legal, valid and binding
obligations of the trust enforceable in accordance with its terms
and the terms of the Pooling and Servicing Agreement, except as the
same may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting enforcement of creditors' rights
generally and by the general principles of equity.
(h) This Agreement has been duly authorized,
executed and delivered by each of the Company, Impac Funding and
IMH. The Pooling and Servicing Agreement has been, and as of the
Closing Date, each of the other agreements entered into in
connection with the issuance or delivery of the Certificates or any
of the transactions contemplated herein (together with the Mortgage
Loan Purchase Agreement, the Pooling and Servicing Agreement and
this Agreement, the “Transaction Documents”) to which
the Company, IMH or Impac Funding, as applicable, is a party, will
have been, duly authorized, executed and delivered by the Company,
IMH or Impac Funding, as applicable, 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, IMH or Impac Funding is a
party will constitute a legal, valid and binding agreement of the
Company, IMH or Impac Funding, as applicable, enforceable in
accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by general principles of
equity.
(i) None of the issuance, delivery or sale of the
Certificates, the execution and delivery by the Company, Impac
Funding or IMH 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, IMH or Impac Funding, and the Company, IMH and Impac
Funding 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, IMH or Impac Funding 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, IMH or Impac
Funding of any court or supervisory, regulatory, administrative or
governmental agency, body or authority, or arbitrator having
jurisdiction over the Company, IMH or Impac Funding, or its
respective properties, the default in or the breach or violation of
which would have a material adverse effect on the Company, IMH or
Impac Funding, the trust or the Certificates or on the ability of
the Company, IMH or Impac Funding to perform its respective
obligations under the Transaction Documents to which it is a party;
and neither the delivery of the Certificates, nor the execution and
delivery of the Transaction Documents nor the consummation of any
other of the transactions contemplated herein, nor the compliance
with the provisions of such Transaction Documents will result in
such a breach, violation or default which would have such a
material adverse effect.
(j) No filing or registration with, notice to, or
consent, approval, authorization or order or other action of any
court or governmental authority or agency is required for the
consummation by the Company, IMH and Impac Funding 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, IMH or Impac Funding), except such as have
been, or will have been obtained prior to the Closing Date, and
such recordations of the assignment to the Trustee of the mortgages
securing the Mortgage Loans (to the extent such recordations are
required pursuant to the Pooling and Servicing Agreement) that have
not yet been completed.
(k) There is no action, suit or proceeding before or
by any court, administrative or governmental agency now pending to
which the Company, IMH or Impac Funding is party, or to the best
knowledge of the Company, IMH or Impac Funding, threatened against
the Company, IMH or Impac Funding, which could reasonably interfere
with or materially and adversely affect the consummation of the
transactions contemplated in the Transaction Documents.
(l) At the time of execution and delivery of the
Pooling and Servicing Agreement, (1) the trust will own the
Mortgage Loans being pledged by it to the Trustee pursuant to the
Pooling and Servicing Agreement, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other
security interest (collectively, “Liens”), except to
the extent permitted in the Pooling and Servicing Agreement, and
will not have assigned to any person other than the Trustee any of
its right, title or interest in its Mortgage Loans, (2) the trust
will have the power and authority to pledge the Trust Fund to the
Trustee and to transfer the Certificates to the Underwriters and
will have duly authorized such action, (3) upon execution and
delivery by the trust to the Trustee of the Pooling and Servicing
Agreement, and delivery of the Certificates to the trust, the
Trustee will have a valid, perfected security interest of first
priority in the Trust Fund free of Liens other than Liens permitted
by the Pooling and Servicing Agreement and (4) upon payment and
delivery of the Certificates to the Underwriters, the Underwriters
will acquire ownership of the Certificates, 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 Certificates have been or will be
paid by IMH, the Company or Impac Funding at or prior to the
Closing Date, except for fees for recording assignments of the
mortgages securing the Mortgage Loans to the Trustee pursuant to
the Pooling and Servicing Agreement that have not yet been
completed, which fees will be paid by or on behalf of Impac Funding
in accordance with and if required by the Pooling and Servicing
Agreement.
(n) The Company possesses all certificates,
licenses, authorizations and permits issued by the appropriate
State, Federal or foreign regulatory agencies or bodies necessary
to conduct the business now conducted by it and as described in the
Prospectus, and the Company has not received notice of any
proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which if decided
adversely to the Company would, singly or in the aggregate,
materially and adversely affect the conduct of its business,
operations or financial conditions.
(o) Impac Funding or any subservicer who will be
servicing any Mortgage Loans pursuant to the Pooling and Servicing
Agreement is qualified to do business and possesses all necessary
certificates, licenses and permits in all jurisdictions in which
its activities as servicer or subservicer of the Mortgage Loans
serviced by it require such qualifications, certificates, licenses
or permits except where failure to be so qualified or to obtain
such certificates, licenses or permits will not have a material
adverse effect on such servicing activities.
(p) The Company is not an “investment
company” or an entity “controlled” by an
“investment company,” as such terms are defined in the
Investment Company Act of 1940, as amended.
(q) Since the respective dates as of which
information is given in the Prospectus, there has not been any
material adverse change in the general affairs, management,
financial condition, or results of operations of the Company,
otherwise than as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
(r) To the best knowledge of the Company, Deloitte
& Touche LLP 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, Impac Funding and IMH that:
(a) Each Certificate is to be maintained on the
book-entry records of The Depository Trust Company
(“DTC”) and the interest in each such Certificate sold
to any person on the date of initial sale thereof by the
Underwriter will not be less than an initial Certificate Principal
Balance of $[25,000] with respect to the Certificates.
(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
Certificates, other than any Underwriter Derived
Information.
2.
Purchase and Sale
. Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to the Underwriters,
and the Underwriters agrees to purchase from the Company, the
Certificates set forth opposite their respective names in Schedule
I hereto, at a price equal to $910,833,000.
3.
Delivery and Payment
. Payment for the Certificates
shall be made by wire transfer of immediately available funds to an
account designated by the Company, and delivery of the Certificates
shall be made at the office of Thacher Proffitt & Wood llp.
Delivery of and payment for the Certificates shall be made at 10:00
a.m., New York City time, on March 30, 2006, or such later date as
the Underwriters shall designate, which date and time may be
postponed by agreement between the Underwriters and the Company
(such date and time of delivery and payment for the Certificates
being herein called the “Closing Date”). Delivery of
the Certificates shall be made to the Underwriters through the
Depository Trust Company (“DTC”) against payment by the
Underwriters of the purchase price thereof to or upon the order of
the Company by wire transfer of immediately available
funds.
4.
Offering by
Underwriters .
4.1 It is understood that the Underwriters propose
to offer the Certificates for sale to the public as set forth in
the Prospectus and that the Underwriters will not offer, sell or
otherwise distribute the Certificates (except for the sale thereof
in exempt transactions) in any state in which the Certificates are
not exempt from registration under Blue Sky laws or state
securities laws (except where the Certificates will have been
qualified for offering and sale at your direction under such Blue
Sky laws or state securities laws). Prior to the date hereof, you
have not offered, pledged, sold, disposed of or otherwise
transferred any Certificate or any security backed by the Mortgage
Loans, any interest in any Certificate or such security or any
Mortgage Loan except as set forth in Section 4.2.
4.2 It is understood that the Underwriters will
solicit offers to purchase the Certificates as follows:
(a) Prior to the time you have received
the Definitive Free Writing Prospectus you may, in compliance with
the provisions of this Agreement, solicit offers to purchase
Certificates; provided, that you shall not accept any such offer to
purchase a Certificate or any interest in any Certificate or
Mortgage Loan or otherwise enter into any Contract of Sale for any
Certificate, any interest in any Certificate or any Mortgage Loan
prior to the investor’s receipt of Definitive Free Writing
Prospectus.
(b) Any Free Writing Prospectus (other
than the Definitive Free Writing Prospectus) relating to the
Certificates used by an Underwriter in compliance with the terms of
this Agreement prior to the time such Underwriter has entered into
a Contract of Sale for Certificates shall prominently set forth
substantially the following statement:
The
information in this free writing prospectus is preliminary, and
will be superseded by the Definitive Free Writing Prospectus. This
free writing prospectus is being delivered to you solely to provide
you with information about the offering of the Certificates
referred to in this free writing prospectus and to solicit an offer
to purchase the Certificates, when, as and if issued. Any such
offer to purchase made by you will not be accepted and will not
constitute a contractual commitment by you to purchase any of the
Certificates until we have accepted your offer to purchase
Certificates. We will not accept any offer by you to purchase
Certificates, and you will not have any contractual commitment to
purchase any of the Certificates until after you have received the
Definitive Free Writing Prospectus. You may withdraw your offer to
purchase Certificates at any time prior to our acceptance of your
offer.
“Written Communication”
has the same meaning as that term is defined in Rule 405 of the
1933 Act Regulations.
(c) Any Free Writing Prospectus
relating to Certificates and used by an Underwriter in connection
with marketing the Certificates, including the Definitive Free
Writing Prospectus, shall prominently set forth substantially the
following statement:
The
Certificates referred to in these materials are being sold when, as
and if issued. You are advised that Certificates may not be issued
that have the characteristics described in these materials. Our
obligation to sell such Certificates to you is conditioned on the
mortgage loans and certificates having the characteristics
described in these materials. If for any reason we do not deliver
such Certificates, we will notify you, and neither the issuer nor
any underwriter will have any obligation to you to deliver all or
any portion of the Certificates which you have committed to
purchase, and none of the issuer nor any underwriter will be liable
for any costs or damages whatsoever arising from or related to such
non-delivery.
4.3 It is understood that you will not
enter into a Contract of Sale with any investor until the investor
has received the Definitive Free Writing Prospectus. For purposes
of this Agreement, Contract of Sale has the same meaning as in Rule
159 of the 1933 Act Regulations. 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 Certificates, unless such Written Communication either (i)
is made in reliance on Rule 134 under the Act, (ii) constitutes a
prospectus satisfying the requirements of Rule 430B under the Act,
(iii) is the Definitive Free Writing Prospectus, or (iv) both (1)
constitutes a Free Writing Prospectus (as defined below) used in
reliance on Rule 164 and (2) includes only information that is
within the definition of ABS Informational and Computational
Materials as defined in Item 1100 of Regulation AB.
(b) 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 EDGAR ON THE SEC
WEB SITE AT WWW.SEC.GOV . 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, a reasonable and customary time prior to
the proposed date of first use thereof, (i) any Free Writing
Prospectus prepared by or on behalf of that Underwriter that
contains any information that, if reviewed and approved by the
Company, would be Issuer Information, and (ii) any Free Writing
Prospectus or portion thereof that contains only a description of
the final terms of the Certificates after such terms have been
established for all classes of Certificates being publicly offered;
provided, however, that the Underwriters shall have no obligation
to deliver any Free Writing Prospectus which contains only
Underwriter Derived Information. 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) 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 Certificates,
any Free Writing Prospectus prepared by or on behalf of such
Underwriter and delivered to such investor contained any untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained therein, in
light of the circumstances under which they were made, not
misleading (such Free Writing Prospectus, a “Defective Free
Writing Prospectus”), that Underwriter shall notify the
Company thereof as soon as practical but in any event within one
business day after discovery.
(h) If the Underwriters do not provide any Free
Writing Prospectuses to the Company pursuant to subsection (e)
above, the Underwriters shall be deemed to have represented, as of
the Closing Date, that they did not provide any prospective
investors with any information in written or electronic form in
connection with the offering of the Certificates that is required
to be filed with the Commission by the Company as a Free Writing
Prospectus (other than the Definitive Free Writing Prospectus) in
accordance with the 1933 Act Regulations. Information not required
to be filed shall include a Free Writing Prospectus containing
solely Underwriter Derived Information.
(i) In the event of any delay in the delivery by
the Underwriters 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 Underwriters, 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 covenants with the
Company that after the final Prospectus is available that
Underwriter shall not distribute any written information concerning
the Certificates to a prospective investor unless such information
is preceded or accompanied by the final Prospectus.
5. Agreements . The Company agrees with the Underwriters
that:
5.1 The Company will promptly advise the
Underwriters (i) when any amendment to the Registration Statement
has become effective or any revision of or supplement to the
Prospectus has been so filed (unless such amendment, revision or
supplement does not relate to the Certificates or the trust), (ii)
of any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional
information (unless such request for additional information does
not relate to the Certificates or the trust), (iii) of any written
notification received by the Company of the suspension of
qualification of the Certificates for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose
and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or, to the knowledge of the Company, the threatening of
any proceeding for that purpose. The Company will not file an
amendment to the Registration Statement or supplement to the
Prospectus (if such amendment or supplement relates to the
Certificates) unless the Company has furnished the Underwriters
with a copy of such amendment for its review prior to such filing.
The Company will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof.
5.2 The Company will cause the Prospectus
Supplement to be transmitted to the Commission for filing pursuant
to Rule 424(b) under the Act by means reasonably calculated to
result in filing with the Commission within the time period
required by said rule. The Company will cause the Prospectus
Supplement to be transmitted to the Commission for filing no later
than the close of business on the business day prior to the Closing
Date.
5.3 If, during the period after the first date of
the public offering of the Certificates in which a prospectus
relating to the Certificates is required to be delivered under the
Act, any event occurs as a result of which it is necessary to amend
or supplement the Prospectus, as then amended and supplemented, in
order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the Act or the 1933 Act Regulations, the
Company promptly will notify the Underwriters and will prepare and
furnish, at its own expense, to the Underwriters, 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 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, in the case of such a Written
Communication, during the time a prospectus was required to be
delivered, either the Company or such Underwriter may prepare
corrective information, with notice to the other party and such
Underwriter shall deliver such information in a manner reasonably
acceptable to both parties, to any person with whom a Contract of
Sale was entered into, and such information 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 Underwriters,
without charge, a copy of the Registration Statement (including
exhibits thereto) and, so long as delivery of a prospectus by the
Underwriters 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 Underwriters may
reasonably request; provided, however, that you will provide the
notice specified in Section 4.6 in every confirmation and will only
deliver the prospectus to those investors that request a paper copy
thereof .
5.6 The Company agrees, so long as the Certificates
shall be outstanding, or until such time as the Underwriters shall
cease to maintain a secondary market in the Certificates, whichever
first occurs, to deliver to the Underwriters the annual statements
as to compliance delivered to the Trustee pursuant to Section 3.19
of the Pooling and Servicing Agreement and the annual statement of
a firm of independent public accountants furnished to the Trustee
pursuant to Section 3.20 of the Pooling and Servicing Agreement, as
soon as such statements are furnished to the Company.
5.7 The Company will endeavor to arrange for the
qualification of the Certificates for sale under the laws of such
jurisdictions as the Underwriters may reasonably designate and will
maintain such qualification in effect so long as required for the
initial distribution of the Certificates and to determine the
legality of the Certificates for purchase by institutional
investors; provided, however, that the Company shall not be
required to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action that would subject it to
general or unlimited service of process in any jurisdiction where
it is not now so subject.
5.8 If the transactions contemplated by this
Agreement are consummated, the Company will pay or cause to be paid
all expenses incident to the performance of the obligations of the
Company under this Agreement, including, without limitation, (a)
costs and taxes incident to the authorization, sale and delivery of
the Certificates, (b) costs incident to preparation, printing and
filing or otherwise reproducing the Registration Statement
(including any amendments or exhibits thereto), the Prospectus, the
other Transaction Documents and the Certificates, (c) fees and
expenses of the Trustee and its counsel, (d) the fees and expenses
of Deloitte & Touche LLP 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
Underwriters for any expenses (including reasonable fees and
disbursements of counsel) reasonably incurred by the Underwriters
in connection with qualification of the Certificates for sale and
determination of their eligibility for investment under the laws of
such jurisdictions as the Underwriters have reasonably requested
pursuant to Section 5.6 above and the printing of memoranda
relating thereto, for any fees charged by investment rating
agencies for the rating of the Certificates, for expenses incurred
in distributing the Prospectus (including any amendments and
supplements thereto) to the Underwriters 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 Underwriters 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 Underwriters shall be responsible for paying for (a)
the fees and expenses of Deloitte & Touche LLP in connection
with any letter other than any letter delivered pursuant to Section
6.7 and (b) all costs and expenses incurred by the Underwriters,
including the fees and disbursements of its counsel, in connection
with the purchase and sale of the Certificates.
5.9 If, during the period after the Closing Date in
which a prospectus relating to the Certificates is required to be
delivered under the Act, the Company receives notice that a stop
order suspending the effectiveness of the Registration Statement or
preventing the offer and sale of the Certificates is in effect, the
Company will advise the Underwriters of the issuance of such stop
order. Upon receipt of notice of such stop order, the Underwriters
shall cease all offers and sales of the Certificates.
5.10 The Company shall file, to the
extent required to be filed, any Free Writing Prospectus prepared
by the Company (including the Definitive Free Writing Prospectus),
and any Issuer Information contained in any Free Writing Prospectus
provided to it by the Underwriters under Section 4.4(e), not later
than the date of first use of the Free Writing Prospectus, except
that:
(a) As to any Free Writing Prospectus
or portion thereof required to be filed that contains only the
description of the final terms of the Certificates after such terms
have been established for all classes of Certificates being
publicly offered, such Free Writing Prospectus or portion thereof
may be filed by the Company within two days of the later of the
date such final terms have been established for all classes of
Certificates being publicly offered and the date of first use;
and
(b) Notwithstanding clause (a) above,
as to any Free Writing Prospectus or portion thereof required to be
filed that contains only information of a type included within the
definition of ABS Informational and Computational Materials, the
Company shall file such Free Writing Prospectus or portion thereof
within the later of two business days after any Underwriter first
provides this information to investors and the date upon which the
Company is required to file the Prospectus Supplement with the
Commission pursuant to Rule 424(b)(3) of the Act;
provided further, that prior to such
use of any Free Writing Prospectuses by the Company, 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 Underwriters 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
Underwriters shall not be required to file any Free Writing
Prospectus that does not contain substantive changes from or
additions to a Free Writing Prospectus previously filed with the
Commission.
5.12 During the period when a prospectus is required
by law to be delivered in connection with the sale of the
Certificates pursuant to this Agreement, the Issuer will file or
cause to be filed, on a timely and complete basis, all documents
that are required to be filed by the Issuer with the Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act (as defined
below).
6. Conditions to the Obligations of the
Underwriters . The
Underwriters’ obligation to purchase the Certificates shall
be subject to (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Company herein
contained; (ii) the performance by the Company of all of its
obligations hereunder; and (iii) the following conditions as of the
Closing Date:
6.1 No stop order suspending the effectiveness of
the Registration Statement shall be in effect, and no proceedings
for that purpose shall be pending or, to the knowledge of the
Company, threatened by the Commission; and the Prospectus
Supplement shall have been filed or transmitted for filing, by
means reasonably calculated to result in a filing with the
Commission not later than the time required by Rule 424(b) under
the Act.
6.2 Since March 1, 2006, there shall have been no
material adverse change (or any development involving a prospective
change) in the sole judgment of the Underwriters in the condition
of the Company that, in the judgment of the Underwriters, impairs
the investment quality of the Certificates so as to make it
impracticable or inadvisable to market the Certificates on the
terms and in the manner contemplated in the Prospectus.
6.3 The Company shall have delivered to the
Underwriters a certificate, dated the Closing Date, of the
President, a Senior Vice President or a Vice President of the
Company to the effect that the signer of such certificate has
examined this Agreement, the Prospectus, the Pooling and Servicing
Agreement and various other closing documents, and that, to the
best of his or her knowledge after reasonable
investigation:
(a) the representations and warranties of the
Company in this Agreement and all other Transaction Documents to
which it is a party are true and correct in all material respects;
and
(b) the Company has, in all material respects,
complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied hereunder at or prior to
the Closing Date.
6.4 Each of Impac Funding and IMH shall have
delivered to you a certificate, dated the Closing Date, of the
President, a Senior Vice President or a Vice President of IMH 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 Impac Funding and IMH, respectively, in this
Agreement are true and correct in all material respects as of the
Closing Date.
6.5 The Underwriters shall have received the
opinions of Thacher Proffitt & Wood llp, special counsel for
the Company, dated the Closing Date and substantially to the effect
set forth in Exhibit A-1, Exhibit A-2 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 and
Impac Funding, dated the Closing Date and substantially to the
effect set forth in Exhibit B-l and Exhibit B-2 and an opinion of
Sidley Austin Brown & Wood LLP, counsel to IMH, substantially
to the effect set forth in Exhibit B-3.
6.6 The Underwriters shall have received from
Sidley Austin Brown & Wood LLP, counsel for the Underwriters,
an opinion dated the Closing Date in form and substance
satisfactory to the Underwriters.
6.7 The Underwriters shall have received from
Deloitte & Touche LLP, certified public accountants, a letter
dated the date hereof and satisfactory in form and substance to the
Underwriters and the Underwriters’ counsel, to the effect
that they have performed certain specified procedures, all of which
have been agreed to by the Underwriters, as a result of which they
determined that certain information of an accounting, financial or
statistical nature set forth in the Definitive Free Writing
Prospectus and the Prospectus Supplement under the captions
“The Mortgage Pool”, “Description of the
Certificates”, “Yield on the Certificates” and
“Pooling and Servicing Agreement” agrees with the
records of the Company excluding any questions of legal
interpretation.
6.8 The Certificates shall have been rated at least
as described directly below by Standard & Poor's, a division of
The McGraw-Hill Companies, Inc. (“S&P”) and Moody's
Investors Service, Inc. (“Moody's”).
The
Underwriters 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 Underwriters shall have received the
opinion of Nixon Peabody LLP, special counsel to the Trustee, dated
the Closing Date, substantially to the effect set forth in
Exhibit C.
6.10 The Underwriters shall have received from
Thacher Proffitt & 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 Underwriters shall have received a
certificate, dated the Closing Date, of the President, a Senior
Vice President or a Vice President of the Company, Impac Funding
and IMH as to the good standing of the Company, Impac Funding and
IMH and the due authorization by Impac Funding and IMH of the
transactions contemplated herein.
6.12 The Underwriters shall have received such
further information, certificates and documents as the Underwriters
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 Underwriters
and the Underwriters’ counsel.
The Company will furnish the Underwriters 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 Underwriters and its counsel, this
Agreement and all obligations of the Underwriters hereunder may be
canceled at, or at any time prior to, the Closing Date by the
Underwriters. Notice of such cancellation shall be given to the
Company, Impac Funding and IMH in writing, or by telephone or
telegraph confirmed in writing.
7. Indemnification and Contribution
.
7.1 (a) The Company, Impac Funding and IMH
agree, jointly and severally, to indemnify and hold harmless the
Underwriters 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, joint or
several, to which the Underwriters or they may become subject under
the Act, the Exchange Act, or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses,
claims, damages, expenses or liabilities (or actions in respect
thereof) arise out of or are based upon or are caused by any untrue
statement or alleged untrue statement of a material fact contained
in the Definitive Free Writing Prospectus, or in any Issuer
Information contained in any other Free Writing Prospectus, or in
any Underwriter Derived Information to the extent caused by any
error in the Pool Information, or in the Registration Statement for
the registration of the Certificates as originally filed or in any
amendment thereof or other filing incorporated by reference
therein, or in the Prospectus or any amendment thereof or other
filing incorporated by reference therein, or arise out of or are
based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, and agrees to reimburse each
such indemnified party for any legal or other expenses reasonably
incurred by it or him in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that none of the Company, Impac Funding or IMH shall be
liable to the Underwriters 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 Underwriters have agreed to
indemnify the Company pursuant to Section 7.2.
(b) The Company, Impac Funding and IMH, jointly and
severally, 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 Underwriters agree, several and not
jointly, to indemnify, hold harmless and reimburse the Company,
Impac Funding and IMH, each of the directors and officers who
signed the Registration Statement and any person controlling the
Company, Impac Funding or to the same extent as the indemnity set
forth in clause 7.1 above from the Company, Impac Funding and IMH
to the Underwriters; provided, however, that the Underwriters 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
Underwriters’ 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, and (iv) any portion
of any Free Writing Prospectus (other than the Definitive Free
Writing Prospectus) not constituting Issuer Information, except to
the extent of any errors that are caused by errors in the Pool
Information. This indemnity agreement will be in addition to any
liability which the Underwriters may otherwise have.
Each of the Company, Impac Funding and IMH
acknowledges that the Underwriters’ Information constitutes
the only information furnished in writing by or on behalf of the
Underwriters expressly for use in the Registration Statement or the
Prospectus or in any amendment thereof or supplement
thereto,
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