Exhibits 5.1 and 8.1
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February 26, 2004
Standard & Poor's, Deutsche Bank National Trust Company
a division of The XxXxxx-Xxxx 0000 Xxxx Xx. Xxxxxx Xxxxx
Companies, Inc. Xxxxx Xxx, Xxxxxxxxxx 00000-0000
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000\
Fitch, Inc. Bear, Xxxxxxx & Co. Inc.
Xxx Xxxxx Xxxxxx Xxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: IndyMac MBS, Inc.
Residential Asset Securitization Trust, Series 2004-A1
Mortgage-Pass Through Certificates, Series 2004-A
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Ladies and Gentlemen:
We have acted as special counsel for IndyMac MBS, Inc, a Delaware
corporation (the "Depositor"), in connection with the issuance of the Mortgage
Pass-Through Certificates of the above-referenced Series (the "Certificates").
The Certificates will represent the entire beneficial ownership interest in
Residential Asset Securitization Trust, Series 2004-A1 (the "Trust"). The
Trust is being formed and the Certificates are being issued pursuant to a
Pooling and Servicing Agreement dated as of February 1, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, IndyMac Bank, F.S.B., a federal
savings bank ("IndyMac Bank"), as seller and master servicer, and Deutsche
Bank National Trust Company, as trustee.
Capitalized terms not otherwise defined in this opinion letter are used
as defined in the Pooling and Servicing Agreement.
In arriving at the opinions expressed below, we have examined such
documents and records as we deemed appropriate, including the following:
(i) Signed copy of the Registration Statement on Form S-3 (File No.
333-102888) filed by the Depositor with the Securities and
Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "1933 Act"), on January 31, 2003,
together with each amendment thereto (such registration
statement, as amended, and declared effective by the Commission
on February 13,
2003) (such registration statement is referred to herein as the
"Registration Statement");
(ii) The Prospectus dated February 23, 2004 (the "Basic Prospectus"),
as supplemented by the Prospectus Supplement relating to the
Public Certificates, dated February 24, 2004 (the "Prospectus
Supplement"), in the form to be filed with the Commission
pursuant to Rule 424(b) under the 1933 Act (the Basic Prospectus,
as supplemented by the Prospectus Supplement, the "Prospectus");
(iii) Signed copy of the Pooling and Servicing Agreement;
(iv) The underwriting agreement dated February 24, 2004 among the
Depositor, Bear, Xxxxxxx & Co. Inc. and Xxxxxxx, Sachs & Co. (the
"Underwriting Agreement"); and
(v) Specimen Certificate of each Class of Certificates (together with
the Registration Statement, the Basic Prospectus, the Prospectus
Supplement, the Pooling and Servicing Agreement and the
Underwriting Agreement, the "Documents").
In rendering the opinions set forth below, we have assumed, without
independent investigation, that all of the Documents furnished to us are
complete and authentic and that all of the Documents have been duly
authorized, executed and delivered. Our opinions are also based on the
assumption that all parties to the Pooling and Servicing Agreement will comply
with the terms thereof, including all tax reporting requirements contained
therein and that all representations made in the Pooling and Servicing
Agreement by any party thereto are true, and that the issuance of the
Certificates and the other transactions set forth in or contemplated by the
Documents are not part of another transaction or another series of
transactions that would require the Trust Fund, any investor or any other
participant to treat such transaction or transactions as subject to the
disclosure, registration, or list maintenance requirements of Section 6011,
6111, or 6112 of the Internal Revenue Code of 1986, as amended.
Based upon the foregoing, we are of the opinion that: (i) each REMIC
created pursuant to the Pooling and Servicing Agreement will qualify as a real
estate mortgage investment conduit within the meaning of Section 860D of the
Internal Revenue Code of 1986, as amended (the "Code"), (ii) the Certificates,
other than the Class A-R Certificate, will be treated as regular interests in
the upper-tier REMIC, and (iii) the Class A-R Certificates represent ownership
of the sole class of residual interest in each REMIC created pursuant to the
Pooling and Servicing Agreement.
These opinions are based upon the existing provisions of the Code and
Treasury regulations issued or proposed thereunder, published Revenue Rulings
and releases of the Internal Revenue Service and existing case law, any of
which could be changed at any time. Any such changes could be retroactive in
application and could modify the legal conclusions upon which such opinions
are based. Such opinion is limited as described above, and we do not express
an opinion on any other tax aspect of the transactions contemplated by the
Pooling and Servicing Agreement or the effect of such transaction on Indymac
Bank, any member of its federal consolidated group or any wholly owned
affiliates.
In rendering the foregoing opinions, we express no opinion as to the laws
of any jurisdiction other than the federal income tax laws of the United
States. This opinion letter is rendered as of the date hereof and we undertake
no obligation to update this opinion letter or advise you of any changes in
the event there is any change in legal authorities, facts, assumptions or
documents on which this opinion letter is based (including the taking of any
action by any party to the Documents pursuant to any opinion of counsel or a
waiver), or any inaccuracy in any of the representations, warranties or
assumptions upon which we have relied in rendering this opinion letter unless
we are specifically engaged to do so. This opinion letter is rendered only to
those to whom it is addressed and may not be relied on in connection with any
transactions other than the transactions contemplated herein. This opinion
letter may not be relied upon for any other purpose, or relied upon by any
other person, firm or corporation for any purpose, without our prior written
consent.
Very truly yours,
/s/ Sidley Xxxxxx Xxxxx & Xxxx LLP
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Sidley Xxxxxx Xxxxx & Xxxx LLP
