IMPAC SECURED ASSETS
CORP.
IMPAC FUNDING
CORPORATION
IMPAC MORTGAGE HOLDINGS,
INC.
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-4
UNDERWRITING
AGREEMENT
Countrywide
Securities Corporation
Calabasas,
California 91302
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 2006-4, Class A-1, Class
A-2A, Class A-2B, Class A-2C, Class A-M, Class M-1, Class M-2,
Class M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8
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 B, 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,
adjustable-rate first lien and fixed-rate first and second lien
mortgage loans (the “Mortgage Loans”) as described in
the Free Writing Prospectus and 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 November 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
November 16, 2006 (the “Mortgage Loan Purchase
Agreement”), among Impac Funding, the Company and Impac
Mortgage Holdings, Inc. (“IMH”).
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. 333-131328) 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 November 15, 2006
(the “Prospectus Supplement”), to the prospectus dated
November 3, 2006 (the “Base Prospectus”), relating to
the Certificates and the method of distribution thereof. Such
registration statement (No.333-131328) including exhibits thereto
and any information incorporated therein by reference, as amended
at the date hereof, is hereinafter called the “Registration
Statement”; and the Base 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 November 16, 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 Base 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, Ernst
& Young 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 agree to purchase from the Company, the
Certificates set forth opposite their respective names in Schedule
I hereto, at a price equal to $1,378,346,497.50.
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 November 16, 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 the
following statement or its equivalent:
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 the following statement or
its equivalent:
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 or its
equivalent:
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
or its equivalent:
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 1-866-500-5409.
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
|
