EXHIBIT 1.1
INDYMAC MBS, INC.
Mortgage Pass-Through Certificates
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 (the "Depositor"),
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 the Depositor 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 consisting of mortgage
notes and the related mortgages acquired by the Depositor (the "Mortgage Loans")
and related property, but excluding the Retained Interest (as defined in the
Prospectus Supplement), if any (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 principal
balance set forth in the Prospectus Supplement, subject to an upward or downward
variance in principal balance, not to exceed the percentage set forth in the
Prospectus Supplement, the precise aggregate principal balance within such range
to be determined by the Depositor 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 the Cut-off Date (as defined in
the Prospectus Supplement), among the Depositor, as depositor, the master
servicer and seller specified in the Prospectus Supplement (the "Master
Servicer" and the "Seller"), and ____________________, 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.
1. Representations and Warranties. The Depositor represents and
warrants to, and agrees with, each Underwriter that:
(i) A registration statement on Form S-3 (File No. 333- ),
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 the Depositor's knowledge threatened
by the Commission. The prospectus in the form in which it will be used
in connection with the
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offering of the Public Certificates is proposed to be 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 hereinafter referred to 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.
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(ii) 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 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 the Depositor 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 the Depositor by or on behalf of any
Underwriter specifically for use in connection with the preparation of
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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 the Depositor, the Master Servicer and the other
parties named therein.
(iii) 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.
(iv) This Agreement has been duly authorized, executed and
delivered by the Depositor. As of the Closing Date, the Pooling and
Servicing Agreement will have been duly authorized, executed and
delivered by the Depositor 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 and the Pooling and Servicing Agreement each will constitute
a legal, valid and binding agreement of the Depositor 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.
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(v) The Depositor 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
and this Agreement.
(vi) 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 or this Agreement, will conflict with or
result in the breach of any material term or provision of the
certificate of incorporation or by-laws of the Depositor, and the
Depositor 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
Depositor is a party or by which it or its properties are bound, or (ii)
any law, decree, order, rule or regulation applicable to the Depositor
of any court or supervisory, regulatory, administrative or governmental
agency, body or authority, or arbitrator having jurisdiction over the
Depositor, or its properties, the default in or the breach or violation
of which would have a material adverse effect on the Depositor or the
Certificates or the ability of the Depositor to perform its obligations
under the Pooling and Servicing Agreement, the Indemnification 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
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the Pooling and Servicing Agreement, the Indemnification Agreement or
this Agreement will result in such a breach, violation or default which
would have such a material adverse effect.
(vii) 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
Depositor of the transactions contemplated by this Agreement, the
Indemnification 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 the Depositor), except
such as have been, or will have been prior to the Closing Date, 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.
(viii) There is no action, suit or proceeding before or by any
court, administrative or governmental agency now pending to which the
Depositor is a party, or to the best of the Depositor's knowledge
threatened against the Depositor, 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 the Depositor or could reasonably
interfere with or materially and adversely affect the consummation of
the transactions contemplated in the Pooling and Servicing Agreement,
the Indemnification Agreement or this Agreement.
(ix) At the time of execution and delivery of the Pooling and
Servicing Agreement, (1) the Depositor will own the Mortgage Loans being
transferred to the Trust Fund pursuant
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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, exclusive of the Retained
Interest, if any, in the Mortgage Loans, (2) the Depositor will have the
power and authority to transfer the Mortgage Loans to the Trust Fund and
to transfer the Certificates to you, and (3) upon execution and delivery
to the Trustee of the Pooling and Servicing Agreement, and delivery of
the Certificates to the Depositor, the Trust Fund will own the Mortgage
Loans (exclusive of the Retained Interest, if any) 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.
(x) 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 and the
Certificates have been or will be paid by the Depositor at or prior to
the Closing Date, 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 will be paid by
or on behalf of the Depositor in accordance with the Pooling and
Servicing Agreement.
(xi) 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
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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.
(xii) The transfer of the Mortgage Loans to the Trust Fund at the
Closing Date will be treated by the Depositor for financial accounting
and reporting purposes as a sale of assets and not as a pledge of assets
to secure debt.
(xiii) The Depositor 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, the Depositor
agrees to sell, and each Underwriter agrees, severally and not jointly, to
purchase from the Depositor, 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 the Depositor (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 time may be changed by agreement between the
Underwriters and the Depositor (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
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Underwriters as against their respective payment of the purchase price
therefor to or upon the order of the Depositor 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. The Depositor 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. The Depositor agrees with each Underwriter that:
(a) The Depositor 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 (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
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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 the Depositor 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 the Depositor, the threatening of any proceeding for that
purpose. The Depositor 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, the Depositor 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, the Depositor promptly will notify each Underwriter
and will, upon the request of any Underwriter, or may, after consultation with
each Underwriter, prepare and file
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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) The Depositor 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) The Depositor 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 the Depositor of the
Depositor'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, (iii)
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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, the Depositor 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 the Depositor 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 the Depositor or the
Master Servicer without undue expense and without violation of applicable law.
(f) The Depositor will file a current report on Form 8-K for
purposes of filing any Computational Materials (as defined in the
Indemnification Agreement) furnished to the Depositor 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. In addition, the
Depositor will file all reports with respect to the Trust Fund required to be
filed under the Exchange Act pursuant to the request for No-Action granted to
the Depositor on February 3, 1994, when the same are required thereby to be so
filed.
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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 the Depositor contained herein as of the date hereof and as of the
Closing Date, to the accuracy of the statements of the Depositor made in any
officer's certificate pursuant to the provisions hereof, to the performance in
all material respects by the Depositor 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) The Depositor shall have furnished to the Underwriters a
certificate, dated the Closing Date, of the Depositor, signed by a vice
president of the Depositor, to the effect that the signer of such certificate
has carefully examined the Registration Statement, the Prospectus and this
Agreement and that:
(i) The representations and warranties of the Depositor 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 the
Depositor 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;
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(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 its part to
be performed or satisfied at or prior to the Closing Date under this Agreement
and the Pooling and Servicing Agreement.
(d) The Depositor shall have furnished to you an opinion, dated
the Closing Date, of Xxxxx & Xxxx LLP, special counsel to the Depositor, to the
effect that:
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(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 the Depositor, and of the Seller in the case of the Pooling and
Servicing Agreement enforceable against the Depositor or the Seller in
accordance with its terms, subject, as to enforceability to bankruptcy,
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;
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(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 and Servicing Agreement is not
required to be registered under the Investment Company Act of 1940, as
amended; and
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(ix) The Trust Fund as described in the Prospectus Supplement and
the Pooling and Servicing Agreement will qualify as a "real estate
mortgage investment conduit" ("REMIC") 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 Trust Fund as a REMIC,
(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 would lead 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 United
States. To the extent that such firm relies upon the opinion of other counsel in
rendering
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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) The Depositor shall have furnished to the Underwriters an
opinion, dated the Closing Date, of counsel to the Depositor (who may be an
employee of the Depositor or of an affiliate of the Depositor), to the effect
that:
(i) The Depositor 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 the Depositor 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 the Depositor;
(iv) This Agreement and the Indemnification Agreement have each
been duly authorized, executed and delivered by the Depositor;
(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
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required for the consummation by the Depositor 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 the Depositor, or any indenture or other agreement or
instrument to which the Depositor is a party or by which it is bound, or
any California, Delaware or federal statute or regulation applicable to
the Depositor or an order of any California, Delaware or federal court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Depositor; and
(vii) There are no legal or governmental actions, investigations
or proceedings pending to which the Depositor is a party, or, to the
best knowledge of such counsel, threatened against the Depositor, (A)
asserting the invalidity of this Agreement, the Pooling and Servicing
Agreement, the Indemnification Agreement or the Certificates, (B)
seeking to prevent the issuance of the Certificates or the consummation
of any of the
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transactions contemplated by this Agreement, the Pooling and Servicing
Agreement or the Indemnification Agreement, (C) which might materially
and adversely affect the performance by the Depositor 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 the Depositor 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 the Depositor 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:
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(i) The Seller has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the state of its
incorporation (the "Incorporation State");
(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 by-laws 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 of
any Incorporation State or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Seller; and
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(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 providing credit enhancement to the Certificates
shall have furnished to the Underwriters an opinion, dated the Closing Date, of
its counsel, with respect to
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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) The Depositor's independent accountants, [ ]
and [ ], shall each 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 the Depositor and the
Underwriters.
(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 the Depositor 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 the Depositor supplied to the rating organizations relating to
certain matters with respect to the
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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 by-laws from
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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) The Depositor 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 the Depositor in writing, or by
telephone or telegraph confirmed in writing.
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7. Termination. This Agreement shall be subject to termination in
your absolute discretion, by notice given to the Depositor 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 the Depositor, 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 the
Depositor 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 the Depositor, 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 the Depositor as provided herein, the Depositor 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
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making preparations for the purchase, sale and delivery of the Underwritten
Public Certificates, but the Depositor 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 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 the Depositor,
shall be delivered to 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: ________________.
* * *
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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 the Depositor and each Underwriter on _________________, 1999
relating to IndyMac MBS, Inc. Mortgage Pass-Through Certificates Series 1999-__
issued by __________________.
Very truly yours,
INDYMAC MBS, INC.
By:___________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted.
__________________________________
(Underwriter)
By:________________________
Name:
Title:
Address:___________________
___________________
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