Exhibits 8.1 and 23.1
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Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxx.
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
May 6, 2005
Standard & Poor's, UBS Securities LLC
a division of The XxXxxx-Xxxx 1285 Avenue of the Americas, 11th Floor
Companies, Inc. Xxx Xxxx, Xxx Xxxx 00000
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxx'x Investors Service, Inc. IndyMac Bank, F.S.B.
00 Xxxxxx Xxxxxx 000 Xxxxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxx, Xxxxxxxxxx 00000
Re: IndyMac MBS, Inc.
IndyMac INDX Mortgage Loan Trust 2005-AR10
Mortgage Pass-Through Certificates, Series 2005-AR10
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Ladies and Gentlemen:
We have acted as special counsel for IndyMac MBS, Inc, a Delaware
corporation (the "Depositor"), in connection with the issuance of the Mortgage
Pass-Through Certificates of the above-referenced Series (the "Certificates").
The Certificates will represent the entire beneficial ownership interest in
IndyMac INDX Mortgage Loan Trust 2005-AR10 (the "Trust"). The Trust is being
formed and the Certificates are being issued pursuant to a Pooling and
Servicing Agreement dated as of May 1, 2005 (the "Pooling and Servicing
Agreement"), among the Depositor, IndyMac Bank, F.S.B., a federal savings bank
("IndyMac Bank"), as seller and master servicer, and Deutsche Bank National
Trust Company, as trustee.
Capitalized terms not otherwise defined in this opinion letter are used
as defined in the Pooling and Servicing Agreement.
In arriving at the opinions expressed below, we have examined such
documents and records as we deemed appropriate, including the following:
(i) Signed copy of the Registration Statement on Form S-3 (File No.
333-119384) filed by the Depositor with the Securities and
Exchange Commission (the "Commission") under the Securities Act of
1933, as amended (the "1933 Act");
on September 29, 2004, together with each amendment thereto (such
registration statement, as amended, and declared effective by the
Commission on October 12, 2004) (such registration statement is
referred to herein as the "Registration Statement");
(ii) The Prospectus dated October 26, 2004 (the "Basic Prospectus"), as
supplemented by the Prospectus Supplement relating to the Public
Certificates, dated May 4, 2005 (the "Prospectus Supplement"),
in the form to be filed with the Commission pursuant to Rule
424(b) under the 1933 Act (the Basic Prospectus, as supplemented
by the Prospectus Supplement, the "Prospectus");
(iii) Signed copy of the Pooling and Servicing Agreement;
(iv) The underwriting agreement dated May 4, 2005 between the
Depositor and UBS Securities LLC (the "Underwriting Agreement");
and
(v) Specimen Certificate of each Class of Certificates (together with
the Registration Statement, the Basic Prospectus, the Prospectus
Supplement, the Pooling and Servicing Agreement and the
Underwriting Agreement, the "Documents").
In rendering the opinions set forth below, we have assumed, without
independent investigation, that all of the Documents furnished to us are
complete and authentic and that all of the Documents have been duly
authorized, executed and delivered. Our opinions are also based on the
assumption that all parties to the Pooling and Servicing Agreement will comply
with the terms thereof, including all tax reporting requirements contained
therein and that all representations made in the Pooling and Servicing
Agreement by any party thereto are true, and that the issuance of the
Certificates and the other transactions set forth in or contemplated by the
Documents are not part of another transaction or another series of
transactions that would require the Trust Fund, any investor or any other
participant to treat such transaction or transactions as subject to the
disclosure, registration, or list maintenance requirements of Section 6011,
6111, or 6112 of the Internal Revenue Code of 1986, as amended (the "Code").
Based upon the foregoing, we are of the opinion that: (i) each REMIC
created pursuant to the Pooling and Servicing Agreement will qualify as a real
estate mortgage investment conduit ("REMIC") within the meaning of Section
860D of the Code, (ii) the Certificates, other than the Class A-R Certificate,
will be treated as regular interests in the Master REMIC, and (iii) the Class
A-R Certificates will represent ownership of the sole class of residual
interest in each REMIC created pursuant to the Pooling and Servicing
Agreement. The rights of the Class A-1, Class A-2 and Class A-3 Certificates
and each Class of Subordinated Certificates to receive payments from the
Carryover Shortfall Reserve Fund will represent, for federal income tax
purposes, separate contractual rights coupled with REMIC regular interests
within the meaning of Treasury regulation ss.1.860G-2(i).
These opinions are based on the current provisions of the Code and
Treasury regulations issued or proposed thereunder, Revenue Rulings and other
published releases of the Internal Revenue Service and current case law, any
of which can change at any time. Any change can apply retroactively and modify
the legal conclusions on which our opinions are based. Our
opinion is limited as described above, and we do not express an opinion on any
other tax aspect of the transactions contemplated by the Pooling and Servicing
Agreement or the effect of such transaction on Indymac Bank, any member of its
federal consolidated group or any wholly owned affiliates.
In rendering the foregoing opinions, we express no opinion on the laws of
any jurisdiction other than the federal income tax laws of the United States.
This opinion letter is rendered as of the date hereof and we undertake no
obligation to update this opinion letter or advise you of any changes in the
event there is any change in legal authorities, facts, assumptions or
documents on which this opinion letter is based (including the taking of any
action by any party to the Documents pursuant to any opinion of counsel or a
waiver), or any inaccuracy in any of the representations, warranties or
assumptions upon which we have relied in rendering this opinion letter unless
we are specifically engaged to do so. This opinion letter is rendered only to
those to whom it is addressed and may not be relied on in connection with any
transactions other than the transactions contemplated herein. This opinion
letter may not be relied upon for any other purpose, or relied upon by any
other person, firm or corporation for any purpose, without our prior written
consent.
We hereby consent to the filing of this opinion as an exhibit to the
Company's Current Report on Form 8-K dated the date hereof.
Very truly yours,
/s/ Sidley Xxxxxx Xxxxx & Xxxx LLP
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Sidley Xxxxxx Xxxxx & Xxxx LLP
