Exhibit 1.1
IndyMac MBS, INC.
Mortgage Pass-Through Certificates, Series [ ]
[IndyMac INDX Mortgage Loan Trust] [Residential Asset Securitization Trust] [ ]
UNDERWRITING AGREEMENT
Dated the date specified on
the signature page hereof
The Firm or Firms
of Underwriters named
on the signature page hereof
Ladies and Gentlemen:
IndyMac MBS, Inc., a Delaware corporation ("IndyMac MBS"), proposes to
cause to be issued and to sell to you, as underwriters (each, an "Underwriter"),
the Mortgage Pass-Through Certificates of the series specified on the signature
page hereof and described in Section 2 hereof (the "Underwritten Public
Certificates" and, together with any certificates of such series retained by
IndyMac MBS or the Seller, if any, set forth on the cover page of the Prospectus
Supplement (as defined below), collectively, the "Public Certificates") having
the characteristics set forth in the Prospectus Supplement evidencing ownership
interests in a trust fund consisting of mortgage notes and the related mortgages
acquired by IndyMac MBS (the "Mortgage Loans") and related property
(collectively, the "Trust Fund"). The Mortgage Loans will be of the type and
will have the characteristics described in the Prospectus Supplement, subject to
the variances, ranges, minimums and maximums set forth in the Prospectus
Supplement, and will have the aggregate Stated Principal Balance set forth in
the Prospectus Supplement, subject to an upward or downward variance in Stated
Principal Balance, not to exceed the percentage set forth in the Prospectus
Supplement, the precise aggregate Stated Principal Balance within such range to
be determined by IndyMac MBS in its sole discretion.
The Public Certificates, together with the other classes of
certificates of the series specified on the signature page hereof (the "Private
Certificates," and collectively with the Public Certificates, the
"Certificates") are to be issued under a pooling and servicing agreement (the
"Pooling and Servicing Agreement"), dated as of [ ] among IndyMac MBS, as
Depositor, IndyMac Bank, F.S.B. as master servicer and seller (the "Master
Servicer" and the "Seller," as applicable) and Deutsche Bank National Trust
Company, as trustee (the "Trustee"). The Public Certificates of each class will
be issued in the minimum denominations and will have the terms set forth in the
Prospectus Supplement. Capitalized terms used but not otherwise defined herein
shall have the respective meanings ascribed thereto in the Pooling and Servicing
Agreement.
If and to the extent specified in the Pooling and Servicing
Agreement, in addition to the Mortgage Loans conveyed to the Trust Fund on the
Closing Date, IndyMac MBS may convey to the Trust Fund, from time to time during
the period specified in the Pooling and Servicing Agreement (each such period, a
"Pre-Funding Period") (the date of any such conveyance, a "Subsequent Transfer
Date") Subsequent Mortgage Loans.
1. Representations and Warranties. IndyMac MBS represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (File No. [ ]), including a
prospectus, has been filed with the Securities and Exchange Commission (the
"Commission") and has become effective under the Securities Act of 1933, as
amended (the "Act"). As of the Closing Date (as hereinafter defined), no stop
order suspending the effectiveness of such registration statement has been
issued and no proceedings for that purpose have been initiated or to IndyMac
MBS's knowledge threatened by the Commission. The prospectus in the form in
which it will be used in connection with the offering of the Public Certificates
is proposed to be
2
supplemented by a prospectus supplement dated the date hereof relating to the
Certificates and, as so supplemented, to be filed with the Commission pursuant
to Rule 424 under the Act. (Such registration statement is hereinafter referred
to as the "Registration Statement;" such prospectus supplement, as first filed
with the Commission, is referred to herein as the "Prospectus Supplement;" and
such prospectus, in the form in which it will first be filed with the Commission
in connection with the offering of the Public Certificates, including documents
incorporated therein as of the time of such filing and as supplemented by the
Prospectus Supplement, is hereinafter referred to as the "Prospectus"). Any
reference herein to the Registration Statement, a preliminary prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before
the date on which the Registration Statement, as amended, became effective or
the issue date of such preliminary prospectus or the date on which the
Prospectus is filed pursuant to Rule 424(b) under the Act, as the case may be;
and any reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the date on which the Registration Statement became
effective or the issue date of any preliminary prospectus or the date on which
the Prospectus is filed pursuant to Rule 424(b) under the Act, as the case may
be, deemed to be incorporated therein by reference.
(b) The Registration Statement and the Prospectus, as of the date of
the Prospectus Supplement will conform, and the Registration Statement and the
Prospectus as revised, amended or supplemented and filed with the Commission
prior to the termination of the
3
offering of the Public Certificates, as of their respective effective or issue
dates, will conform in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder applicable to such
documents as of such respective dates, and the Registration Statement and the
Prospectus as revised, amended or supplemented and filed with the Commission as
of the Closing Date will conform in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder applicable to
such documents as of the Closing Date. The Registration Statement, at the time
it became effective, did not include any untrue statement of a material fact or
omit to state a 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, and the Prospectus as revised, amended or supplemented
and filed prior to the Closing Date, as of the Closing Date, will not include
any untrue statement of a material fact and will not omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that IndyMac MBS makes no representations, warranties or
agreements as to the information contained in or omitted from the Prospectus or
any revision or amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to IndyMac MBS by or on behalf
of any Underwriter or Broker-Dealer (as defined in the Indemnification
Agreement) specifically for use in connection with the preparation of the
Prospectus or any revision or amendment thereof or supplement thereto, such
information being defined in the Indemnification and Contribution Agreement,
dated the date hereof (the "Indemnification Agreement"), among IndyMac MBS, the
Master Servicer and the other parties named therein.
4
(c) The Public Certificates will conform in all material respects to
the description thereof contained in the Prospectus, and each of the
Certificates, when validly authenticated, issued and delivered in accordance
with the Pooling and Servicing Agreement, will be duly and validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing Agreement.
Each Certificate of the classes indicated to be "mortgage related securities"
under the heading "Summary--Legal Investment" in the Prospectus Supplement will,
when issued, be a "mortgage related security" as such term is defined in Section
3(a)(41) of the Exchange Act.
(d) This Agreement has been duly authorized, executed and delivered
by IndyMac MBS. As of the Closing Date, the Pooling and Servicing Agreement will
have been duly authorized, executed and delivered by IndyMac MBS 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, this Agreement, each subsequent transfer agreement, if any,
referred to in the Prospectus Supplement (each a "Subsequent Transfer
Agreement") and the Pooling and Servicing Agreement each will constitute a
legal, valid and binding agreement of IndyMac MBS 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.
(e) IndyMac MBS has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus and to enter into and perform its obligations under
the Pooling and Servicing Agreement, each Subsequent Transfer Agreement and this
Agreement.
5
(f) Neither the issuance or delivery of the Certificates, nor the
consummation of any other of the transactions contemplated herein, nor
compliance with the provisions of the Pooling and Servicing Agreement, the
Indemnification Agreement, each Subsequent Transfer Agreement or this Agreement,
will conflict with or result in the breach of any material term or provision of
the certificate of incorporation or bylaws of IndyMac MBS, and IndyMac MBS 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 IndyMac MBS is a party or by which it or its properties are bound, or
(ii) any law, decree, order, rule or regulation applicable to IndyMac MBS of any
court or supervisory, regulatory, administrative or governmental agency, body or
authority, or arbitrator having jurisdiction over IndyMac MBS, or its
properties, the default in or the breach or violation of which would have a
material adverse effect on IndyMac MBS or the Certificates or the ability of
IndyMac MBS to perform its obligations under the Pooling and Servicing
Agreement, the Indemnification Agreement, each Subsequent Transfer Agreement or
this Agreement; and neither the delivery of the Certificates, nor the
consummation of any other of the transactions contemplated herein, nor the
compliance with the provisions of the Pooling and Servicing Agreement, the
Indemnification Agreement, each Subsequent Transfer Agreement or this Agreement
will result in such a breach, violation or default which would have such a
material adverse effect.
(g) 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 IndyMac MBS of the transactions
contemplated by this Agreement, the
6
Indemnification Agreement, each Subsequent Transfer Agreement or the Pooling and
Servicing Agreement (other than as required under "blue sky" or state securities
laws, as to which no representations and warranties are made by IndyMac MBS),
except such as have been, or will have been prior to the Closing Date, or
Subsequent Transfer date, as applicable, obtained under the Act, and such
recordations of the assignment of the Mortgage Loans to the Trustee (to the
extent such recordations are required pursuant to the Pooling and Servicing
Agreement) that have not yet been completed.
(h) There is no action, suit or proceeding before or by any court,
administrative or governmental agency now pending to which IndyMac MBS is a
party, or to the best of IndyMac MBS's knowledge threatened against IndyMac MBS,
which could reasonably result individually or in the aggregate in any material
adverse change in the condition (financial or otherwise), earnings, affairs,
regulatory situation or business prospects of IndyMac MBS or could reasonably
interfere with or materially and adversely affect the consummation of the
transactions contemplated in the Pooling and Servicing Agreement, each
Subsequent Transfer Agreement, the Indemnification Agreement or this Agreement.
(i) At the time of execution and delivery of the Pooling and
Servicing Agreement, (1) IndyMac MBS will own the Mortgage Loans being
transferred to the Trust Fund pursuant thereto, 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
Trust Fund any of its right, title or interest in the Mortgage Loans, (2)
IndyMac MBS will have the power and authority to transfer the Mortgage Loans to
the Trust Fund and to transfer the Certificates to you, (3) upon execution and
delivery to the Trustee of the Pooling and Servicing
7
Agreement, and delivery of the Certificates to IndyMac MBS, the Trust Fund will
own the Mortgage Loans free of Liens other than Liens permitted by the Pooling
and Servicing Agreement or created or granted by you and (4) upon payment and
delivery of the Underwritten Public Certificates to you, you will acquire
ownership of the Underwritten Public Certificates, free of Liens other than
Liens permitted by the Pooling and Servicing Agreement or created or granted by
you. At the time of execution and delivery of each Subsequent Transfer
Agreement, (1) IndyMac MBS will own the Mortgage Loans being transferred to the
Trust Fund pursuant thereto, free and clear of any Liens, except to the extent
permitted in the Pooling and Servicing Agreement, and will not have assigned to
any person other than the Trust Fund any of its right, title or interest in the
related Mortgage Loans, (2) IndyMac MBS will have the power and authority to
transfer the related Mortgage Loans to the Trust Fund, (3) upon execution and
delivery to the Trustee of each Subsequent Transfer Agreement, the Trust Fund
will own the related Mortgage Loans free of Liens other than Liens permitted by
the Pooling and Servicing Agreement or created or granted by you and (4) IndyMac
MBS will have complied with the requirements contained in the Pooling and
Servicing Agreement for transferring the related Mortgage Loans.
(j) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the Indemnification
Agreement, the Pooling and Servicing Agreement, each Subsequent Transfer
Agreement and the Certificates have been or will be paid by IndyMac MBS at or
prior to the Closing Date or Subsequent Transfer Date, as applicable, except for
fees for recording assignments of the Mortgage Loans to the Trustee pursuant to
the Pooling and Servicing Agreement that have not yet been completed, which fees
8
will be paid by or on behalf of IndyMac MBS in accordance with the Pooling and
Servicing Agreement.
(k) The Master Servicer or any subservicer who will be servicing any
Mortgage Loans pursuant to the Pooling and Servicing Agreement is qualified to
do business in all jurisdictions in which its activities as servicer or
subservicer of the Mortgage Loans serviced by it require such qualification
except where failure to be so qualified will not have a material adverse effect
on such servicing activities.
(l) The transfer of the Mortgage Loans to the Trust Fund at the
Closing Date will be treated by IndyMac MBS for financial accounting and
reporting purposes as a sale of assets and not as a pledge of assets to secure
debt.
(m) IndyMac MBS is not doing business with Cuba.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, IndyMac MBS
agrees to sell, and each Underwriter agrees, severally and not jointly, to
purchase from IndyMac MBS, the respective initial Class Certificate Balance of
each Class of Underwritten Public Certificates to be purchased by such
Underwriter as specified in the Prospectus Supplement. The purchase price at
which each Underwriter will purchase its Underwritten Public Certificates shall
be as set forth in a separate pricing letter dated the date hereof between such
Underwriter and IndyMac MBS (each, a "Pricing Letter"), and the terms of each
such Pricing Letter are hereby incorporated herein by reference as if such terms
were stated herein in their entirety. References herein to this "Agreement"
shall include the terms of each Pricing Letter.
3. Delivery and Payment. The Public Certificates shall be delivered
at the office, on the date and at the time specified in the Prospectus
Supplement, which place, date and
9
time may be changed by agreement between the Underwriters and IndyMac MBS (such
date and time of delivery of and payment for such Public Certificates being
hereinafter referred to as the "Closing Date"). Delivery of the Underwritten
Public Certificates shall be made to each of the Underwriters as against their
respective payment of the purchase price therefor to or upon the order of
IndyMac MBS in immediately available federal funds. The Underwritten Public
Certificates shall be registered in such names and in such denominations as the
respective Underwriters may have requested or as required by book-entry
registration not less than two full business days prior to the Closing Date.
IndyMac MBS agrees to make the Underwritten Public Certificates available for
inspection, checking and packaging in New York, New York, on the business day
prior to the Closing Date.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Underwritten Public Certificates for sale as set forth in
the Prospectus and that you will not offer, sell or otherwise distribute the
Underwritten Public Certificates (except for the sale thereof in exempt
transactions) in any state in which the Underwritten Public Certificates are not
exempt from registration under "blue sky" or state securities laws (except where
the Underwritten Public Certificates will have been qualified for offering and
sale at your direction under such "blue sky" or state securities laws).
5. Agreements. IndyMac MBS agrees with each Underwriter that:
(a) IndyMac MBS will cause the Prospectus to be filed with the
Commission pursuant to Rule 424 under the Act and, if necessary, within 15 days
of the Closing Date, will file a report on Form 8-K setting forth specific
information concerning the Mortgage Loans, and will promptly advise each
Underwriter when the Prospectus has been so filed, and, prior to the termination
of the offering of the Public Certificates, will also promptly advise each
Underwriter
10
(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), (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), (iii) of any
written notification received by IndyMac MBS of the suspension of qualification
of the Public 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 IndyMac MBS, the threatening
of any proceeding for that purpose. IndyMac MBS 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. Except as otherwise provided in Section 5(b)
hereof, IndyMac MBS will not file prior to the termination of such offering any
amendment to the Registration Statement or any revision of or supplement to the
Prospectus (other than any such amendment, revision or supplement which does not
relate to the Certificates) which shall be disapproved by the Underwriters after
reasonable notice and review of such filing.
(b) If, at any time when a prospectus relating to the Public
Certificates is required to be delivered under the Act (i) any event occurs as a
result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein in the light of the circumstances under which
they were made not misleading, or (ii) it shall be necessary to revise, amend or
supplement the Prospectus to comply with the Act or the rules and regulations of
the Commission thereunder, IndyMac MBS promptly will notify each Underwriter and
will, upon
11
the request of any Underwriter, or may, after consultation with each
Underwriter, prepare and file with the Commission a revision, amendment or
supplement which will correct such statement or omission or effect such
compliance, and furnish without charge to each Underwriter as many copies as
such Underwriter may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance.
(c) IndyMac MBS will furnish to each Underwriter and counsel to the
Underwriters, without charge, conformed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus relating
to the Public Certificates is required under the Act, as many copies of the
Prospectus and any revisions or amendments thereof or supplements thereto as may
be reasonably requested.
(d) IndyMac MBS will, as between itself and the Underwriters, pay
all expenses incidental to the performance of its obligations under this
Agreement, including without limitation (i) expenses of preparing, printing and
reproducing the Registration Statement, the Prospectus, the Pooling and
Servicing Agreement and the Certificates, (ii) the cost of delivering the
Underwritten Public Certificates to the Underwriters, insured to your reasonable
satisfaction, (iii) the fees charged by securities rating services for rating
the Certificates, (iv) the fees and expenses of the Trustee except for fees and
expenses of Trustee's counsel which will be borne by the Trustee and (v) all
other costs and expenses incidental to the performance by IndyMac MBS of IndyMac
MBS's obligations hereunder which are not otherwise specifically provided for in
this subsection. It is understood that, except as provided in this paragraph (d)
and in Section 9 hereof, each Underwriter will pay all of its own expenses,
including (i) the fees of any counsel to such Underwriter, (ii) any transfer
taxes on resale of any of the Certificates by it,
12
(iii) any advertising expenses connected with any offers that such Underwriter
may make and (iv) any expenses for the qualification of the Certificates under
"blue sky" or state securities laws, including filing fees and the fee and
disbursements of counsel for such Underwriter in connection therewith and in
connection with the preparation of any Blue Sky Survey.
(e) So long as any Certificates are outstanding, upon request of any
Underwriter, IndyMac MBS will, or will cause the Master Servicer to, furnish to
such Underwriter, as soon as available, a copy of (i) the annual statement of
compliance delivered by the Master Servicer to the Trustee under the Pooling and
Servicing Agreement, (ii) the annual independent public accountants' servicing
report furnished to the Trustee pursuant to the Pooling and Servicing Agreement,
(iii) each report of IndyMac MBS regarding the Certificates filed with the
Commission under the Exchange Act or mailed to the holders of the Certificates
and (iv) from time to time, such other information concerning the Certificates
which may be furnished by IndyMac MBS or the Master Servicer without undue
expense and without violation of applicable law.
(f) IndyMac MBS will file a current report on Form 8-K for purposes
of filing any Computational Materials (as defined in the Indemnification
Agreement) furnished to IndyMac MBS by an Underwriter prior to the time of
filing of the Prospectus as provided in Section 5(a) hereof and will include
therein all Computational Materials so furnished.
(g) The Depositor acknowledges and agrees that the Underwriter is
acting solely in the capacity of an arm's length contractual counterparty to the
Depositor with respect to the offering of Certificates contemplated hereby
(including in connection with determining the terms of the offering) and not as
a financial advisor or a fiduciary to, or an agent of, the Depositor or any
other person. In addition, the Underwriter is not advising the Depositor or any
13
other person as to any legal, tax, investment, accounting or regulatory matters
in any jurisdiction. The Depositor shall consult with its own advisors
concerning such matters, and the Underwriter shall have no responsibility or
liability to the Depositor with respect thereto. Any review by the Underwriter
of the Depositor, the transactions contemplated hereby or other matters relating
to such transactions will be performed solely for the benefit of the Underwriter
and shall not be on behalf of the Depositor.
6. Conditions to the Obligations of Underwriters. The obligation of
each Underwriter to purchase the Underwritten Public Certificates to be
purchased by it as indicated in the related Pricing Letter shall be subject to
the accuracy in all material respects of the representations and warranties on
the part of IndyMac MBS contained herein as of the date hereof and as of the
Closing Date, to the accuracy of the statements of IndyMac MBS made in any
officer's certificate pursuant to the provisions hereof, to the performance in
all material respects by IndyMac MBS of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted and be pending or shall have been threatened, and the Prospectus
shall have been filed or mailed for filing with the Commission not later than
required pursuant to the rules and regulations of the Commission.
(b) IndyMac MBS shall have furnished to the Underwriters a
certificate, dated the Closing Date, of IndyMac MBS, signed by a vice president
of IndyMac MBS, to the effect that the signer of such certificate has carefully
examined the Registration Statement, the Prospectus and this Agreement and that:
14
(i) The representations and warranties of IndyMac MBS herein are true
and correct in all material respects on and as of the Closing Date with the
same effect as if made on the Closing Date, and IndyMac MBS has complied
with all agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose have been
instituted and are pending or, to his knowledge, have been threatened as of
the Closing Date; and
(iii) Nothing has come to the attention of such person that would lead
him to believe that the Prospectus (other than any Computational Materials
(as defined in the Indemnification Agreement) incorporated therein by
reference) contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(c) The Seller shall have furnished to the Underwriters a
certificate, dated the Closing Date, of the Seller, signed by a vice president
or an assistant vice president of the Seller, to the effect that (i) the signer
of such certificate has carefully examined the Prospectus and nothing has come
to the attention of such person that would lead him to believe that the
Prospectus contains any untrue statement of a material fact with respect to the
Seller or omits to state any material fact with respect to the Seller or the
Mortgage Loans necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading and (ii) the Seller
has complied with all agreements and satisfied all the conditions on
15
its part to be performed or satisfied at or prior to the Closing Date under this
Agreement and the Pooling and Servicing Agreement.
(d) IndyMac MBS shall have furnished to you an opinion, dated the
Closing Date, of Sidley Austin LLP, special counsel to IndyMac MBS, to the
effect that:
(i) The Registration Statement and any amendments thereto have become
effective under the Act; to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been
issued and not withdrawn, no proceedings for that purpose have been
instituted or threatened and not terminated; and the Registration
Statement, the Prospectus and each amendment or supplement thereto, as of
their respective effective or issue dates (other than the financial and
statistical information contained therein as to which such counsel need
express no opinion), complied as to form in all material respects with the
applicable requirements of the Act and the rules and regulations
thereunder;
(ii) To the best knowledge of such counsel, there are no material
contracts, indentures or other documents of a character required to be
described or referred to in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto;
(iii) Assuming that this Agreement and the Pooling and Servicing
Agreement have each been duly authorized, executed and delivered by the
parties thereto, each constitutes a valid, legal and binding agreement of
IndyMac MBS, and of the Seller in the case of the Pooling and Servicing
Agreement enforceable against IndyMac MBS or the Seller in accordance with
its terms, subject, as to enforceability to bankruptcy,
16
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and to general principles of equity regardless
of whether enforcement is sought in a proceeding in equity or at law;
(iv) Assuming that the Certificates have been duly and validly
authorized, executed and authenticated in the manner contemplated in the
Pooling and Servicing Agreement, when delivered and paid for by you as
provided in this Agreement, the Certificates will be validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing
Agreement;
(v) The Certificates and the Pooling and Servicing Agreement conform
to the descriptions thereof contained in the Prospectus;
(vi) The statements in the Prospectus and the Prospectus Supplement,
as the case may be, under the headings "Material Federal Income Tax
Consequences," "ERISA Considerations" and "Legal Investment," to the extent
that they constitute matters of New York or federal law or legal
conclusions with respect thereto, have been reviewed by such counsel and
are correct in all material respects;
(vii) The Certificates indicated under the heading "Summary--Legal
Investment" in the Prospectus Supplement to be "mortgage related
securities" will be mortgage related securities, as defined in Section
3(a)(41) of the Exchange Act, so long as such Certificates are rated in one
of the two highest rating categories by at least one nationally recognized
statistical rating organization;
(viii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust
Fund created by the Pooling
17
and Servicing Agreement is not required to be registered under the
Investment Company Act of 1940, as amended; and
(ix) Each REMIC described in the Pooling and Servicing Agreement will
qualify as a real estate mortgage investment conduit within the meaning of
Section 860D of the Internal Revenue Code of 1986, as amended (the "Code"),
assuming: (i) an election is made to treat the assets of each REMIC as a
real estate mortgage investment conduit, (ii) compliance with the Pooling
and Servicing Agreement and (iii) compliance with changes in the law,
including any amendments to the Code or applicable Treasury regulations
thereunder.
Such counsel shall also state that nothing has come to its attention
that has caused such counsel to believe that the Registration Statement, at the
time it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as of the
date of the Prospectus Supplement, and on the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; it being
understood that such counsel need express no view as to (i) financial and
statistical information contained therein or (ii) any description in the
Prospectus of any third party providing credit enhancement to the Certificates.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the Pooling and
Servicing Agreement. Such opinion may be qualified as an opinion only on the
laws of the State of New York and the federal law of the
00
Xxxxxx Xxxxxx. To the extent that such firm relies upon the opinion of other
counsel in rendering any portion of its opinion, the opinion of such other
counsel shall be attached to and delivered with the opinion of such firm that is
delivered to you.
(e) IndyMac MBS shall have furnished to the Underwriters an opinion,
dated the Closing Date, of counsel to IndyMac MBS (who may be an employee of
IndyMac MBS or of an affiliate of IndyMac MBS), to the effect that:
(i) IndyMac MBS has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware and is
duly qualified to do business in, and is in good standing as a foreign
corporation under the laws of, the State of California;
(ii) The Certificates have been duly authorized and executed and,
assuming authentication and delivery in the manner contemplated in the
Pooling and Servicing Agreement, are validly issued and outstanding, and
upon delivery by IndyMac MBS of the Certificates to be purchased by the
Underwriters and payment by the Underwriters of the purchase price therefor
in the manner contemplated by this Agreement, the Underwriters will acquire
such Certificates free and clear of any lien, pledge, encumbrance or other
security interest other than one created or granted by any Underwriter;
(iii) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by IndyMac MBS;
(iv) This Agreement and the Indemnification Agreement have each been
duly authorized, executed and delivered by IndyMac MBS;
19
(v) No consent, approval, authorization or order of any California,
Delaware or federal governmental agency or body or any California, Delaware
or federal court is required for the consummation by IndyMac MBS of the
transactions contemplated by the terms of this Agreement, the
Indemnification Agreement or the Pooling and Servicing Agreement except
such as may be required under the "blue sky" or state securities laws of
any jurisdiction in connection with the offering, sale or acquisition of
the Certificates, any recordations of the assignment of the Mortgage Loans
to the Trustee (to the extent such recordations are required pursuant to
the Pooling and Servicing Agreement) that have not yet been completed and
such other approvals as have been obtained;
(vi) The sale of the Certificates to be purchased by the Underwriters
pursuant to this Agreement and the consummation of any of the transactions
contemplated by the terms of the Pooling and Servicing Agreement, the
Indemnification Agreement or this Agreement do not conflict with or result
in a breach or violation of any material term or provision of, or
constitute a default under, the certificate of incorporation of IndyMac
MBS, or any indenture or other agreement or instrument to which IndyMac MBS
is a party or by which it is bound, or any California, Delaware or federal
statute or regulation or decree applicable to IndyMac MBS or an order of
any California, Delaware or federal court, regulatory body, administrative
agency or governmental body having jurisdiction over IndyMac MBS; and
(vii) There are no legal or governmental actions, investigations or
proceedings pending to which IndyMac MBS is a party, or, to the best
knowledge of such counsel, threatened against IndyMac MBS, (A) asserting
the invalidity of this Agreement, the Pooling and Servicing Agreement, the
Indemnification Agreement or the Certificates, (B)
20
seeking to prevent the issuance of the Certificates or the consummation of
any of the transactions contemplated by this Agreement, the Pooling and
Servicing Agreement or the Indemnification Agreement, (C) which might
materially and adversely affect the performance by IndyMac MBS of its
obligations under, or the validity or enforceability of, this Agreement,
the Pooling and Servicing Agreement, the Indemnification Agreement or the
Certificates or (D) seeking to affect adversely the Federal income tax
attributes of the Certificates as described in the Prospectus under the
heading "Material Federal Income Tax Consequences." For purposes of the
foregoing, such counsel may state that it has not regarded any legal or
governmental actions, investigations or proceedings to be "threatened"
unless the potential litigant or governmental authority has manifested to
the legal department of IndyMac MBS a present intention to initiate such
proceedings.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the Pooling and
Servicing Agreement. Such opinion may assume the due authorization, execution
and delivery of the instruments and documents referred to therein by the parties
thereto other than IndyMac MBS or its affiliates. Such opinion may be qualified
as an opinion only on the laws of the States of Delaware and California and the
federal law of the United States. To the extent that such counsel relies upon
the opinion of other counsel in rendering any portion of its opinion, the
opinion of such other counsel shall be attached to and delivered with the
opinion of such counsel that is delivered to the Underwriters.
(f) The Seller shall have furnished to the Underwriters an opinion,
dated the Closing Date, of counsel to the Seller (who may be an employee of the
Seller), to the effect that:
21
(i) The Seller is a federally chartered savings institution and is in
good standing;
(ii) The Pooling and Servicing Agreement and the Indemnification
Agreement have each been duly authorized, executed and delivered by the
Seller;
(iii) No consent, approval, authorization or order of any
incorporation state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions
contemplated by the terms of the Pooling and Servicing Agreement or the
Indemnification Agreement except any such as may be required under the
"blue sky" or state securities laws of any jurisdiction in connection with
the offering, sale or acquisition of the Certificates, any recordations of
the assignment of the Mortgage Loans evidenced by the Certificates to the
Trustee (to the extent such recordations are required pursuant to the
Pooling and Servicing Agreement) that have not yet been completed and any
approvals as have been obtained;
(iv) The consummation of any of the transactions contemplated by the
terms of the Pooling and Servicing Agreement or the Indemnification
Agreement do not conflict with or result in a breach or violation of any
material term or provision of, or constitute a default under, the charter
or bylaws of the Seller, or, to the best knowledge of such counsel, any
indenture or other agreement or instrument to which the Seller is a party
or by which it is bound, any incorporation state or federal statute or
regulation applicable to the Seller or any order or decree of any
incorporation state or federal court, regulatory body, administrative
agency or governmental body having jurisdiction over the Seller; and
22
(v) There are no legal or governmental actions, investigations or
proceedings pending to which the Seller is a party, or, to the best
knowledge of such counsel, threatened against the Seller, (A) asserting the
invalidity of the Pooling and Servicing Agreement or the Indemnification
Agreement or (B) which might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, the Pooling and Servicing Agreement or the
Indemnification Agreement. For purposes of the foregoing, such counsel may
state that it has not regarded any legal or governmental actions,
investigations or proceedings to be "threatened" unless the potential
litigant or governmental authority has manifested to the legal department
of the Seller a present intention to initiate such proceedings.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the Pooling and Servicing Agreement.
Such opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other than
the Seller. Such opinion may be qualified as an opinion only on the laws of the
incorporation state and the federal law of the United States and, with respect
to the opinions set forth in paragraph (f)(ii) above, the laws of the State of
New York. To the extent that such counsel relies upon the opinion of other
counsel in rendering any portion of its opinion, the opinion of such other
counsel shall be attached to and delivered with the opinion of such counsel that
is delivered to the Underwriters.
(g) Each party, if any, providing credit enhancement to the
Certificates shall have furnished to the Underwriters an opinion, dated the
Closing Date, of its counsel, with
23
respect to the Registration Statement and the Prospectus, and such other related
matters, in the form previously agreed to by such provider and the Underwriters.
(h) The Underwriters shall have received from their counsel such
opinion or opinions, dated the Closing Date, with respect to the issuance and
sale of the Public Certificates, the Registration Statement and the Prospectus,
and such other related matters as you may reasonably require.
(i) IndyMac MBS's independent accountants, Deloitte & Touche LLP
and/or Ernst & Young LLP, shall have furnished to the Underwriters a letter or
letters addressed to the Underwriters and dated as of or prior to the date of
first use of the Prospectus Supplement in the form and reflecting the
performance of the procedures previously agreed to by IndyMac MBS and the
Underwriters; provided, however, that the Underwriters are obligated to sign the
agreed upon procedures acknowledgment letter from Ernst & Young LLP.
(j) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of IndyMac MBS which in your reasonable judgment
materially impairs the investment quality of the Certificates so as to make it
impractical or inadvisable to proceed with the public offering or the delivery
of the Certificates as contemplated by the Prospectus.
(k) The Public Certificates shall be rated not lower than the
required ratings set forth under the heading "Ratings" in the Prospectus
Supplement, such ratings shall not have been rescinded and no public
announcement shall have been made that any such required rating of the
Certificates has been placed under review (otherwise than for possible
upgrading).
(l) The Underwriters shall have received copies of any opinions of
counsel to IndyMac MBS supplied to the rating organizations relating to certain
matters with respect to the
24
Certificates. Any such opinions shall be dated the Closing Date and addressed to
the Underwriters or accompanied by reliance letters addressed to the
Underwriters.
(m) All Classes of Certificates being publicly offered by the
Underwriters or privately placed by the Purchaser shall have been issued and
paid for pursuant to the terms of this Agreement and the Purchase Agreement,
respectively.
(n) The Trustee shall have furnished to the Underwriters an opinion
dated the Closing Date, of counsel to the Trustee (who may be an employee of the
Trustee), to the effect that:
(i) The Trustee has full corporate power and authority to execute
and deliver the Pooling and Servicing Agreement and to perform its
obligations thereunder and to execute, countersign and deliver the
Certificates.
(ii) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee.
(iii) The Pooling and Servicing Agreement is a legal, valid and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, receivership, conservatorship and similar
laws affecting the rights of creditors generally, and subject, as to
enforceability, to general principles of equity, regardless of whether
such enforcement is considered in a proceeding at law or equity.
(iv) In the event that the Master Servicer defaults in its
obligation to make Advances pursuant to the Pooling and Servicing
Agreement, the Trustee is not, as of the date hereof, prohibited by any
provision of its articles of incorporation or bylaws from
25
assuming, pursuant to the Pooling and Servicing Agreement, the obligation to
make such Advances.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the Pooling and Servicing Agreement.
Such opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other than
the Trustee or its affiliates. Such opinion may be qualified as an opinion only
on the laws of the State of New York and the federal law of the United States.
To the extent that such counsel relies upon the opinion of other counsel in
rendering any portion of its opinion, the opinion of such other counsel shall be
attached to and delivered with the opinion of such counsel that is delivered to
the Underwriters.
(o) IndyMac MBS shall have furnished to the Underwriters 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 their counsel.
(p) The Indemnification Agreement shall have been executed and
delivered.
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,
this Agreement and all obligations of an Underwriter hereunder may be canceled
at, or at any time prior to, the Closing Date by such Underwriter. Notice of
such cancellation shall be given to IndyMac MBS in writing, or by telephone or
telegraph confirmed in writing.
26
7. Termination. This Agreement shall be subject to termination in
your absolute discretion, by notice given to IndyMac MBS prior to delivery of
and payment for the Underwritten Public Certificates, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets is such as to make it, in your judgment after consultation
with IndyMac MBS, impracticable to market the Public Certificates on the terms
specified in this Agreement.
8. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
IndyMac MBS and its officers and of each Underwriter set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or IndyMac MBS, and
will survive delivery of and payment for the Underwritten Public Certificates.
The provisions of Section 5(d) and Section 9 hereof shall survive the
termination or cancellation of this Agreement.
9. Reimbursement of Underwriter Expenses. If for any reason, other
than default by any Underwriter in its obligation to purchase the Underwritten
Public Certificates or termination by any Underwriter pursuant to Section 7
hereof, the Underwritten Public Certificates are not delivered by or on behalf
of IndyMac MBS as provided herein, IndyMac MBS will reimburse each Underwriter
for all out-of-pocket expenses of such Underwriter, including reasonable fees
and disbursements of its counsel, reasonably incurred by such Underwriter in
making preparations for the purchase, sale and delivery of the Underwritten
27
Public Certificates, but IndyMac MBS shall then be under no further liability to
any Underwriter with respect to the Underwritten Public Certificates, except as
provided in Section 5(d) hereof.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns, and
no other person will have any right or obligation hereunder.
11. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
12. Miscellaneous. Time shall be of the essence of this Agreement.
This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof, other than the
Indemnification Agreement. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought. This Agreement may be signed in any number of counterparts, each of
which shall be deemed an original, which taken together shall constitute one and
the same instrument.
13. Notices. All communications hereunder shall be in writing and
effective only on receipt and, if sent to an Underwriter, shall be delivered to
the address specified on the signature page hereof; or if sent to IndyMac MBS,
shall be delivered to 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
attention of Secondary Marketing.
* * *
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
by and among IndyMac MBS and each Underwriter on [ ] relating to Mortgage
Pass-Through Certificates, Series [ ] issued by [IndyMac INDX Mortgage Loan
Trust] [Residential Asset Securitization Trust] [ ].
Very truly yours,
INDYMAC MBS, INC.
By:___________________________
Name:
Title:
[ ]
By:________________________
Name:
Title:
