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.
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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
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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
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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.
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(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.
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(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
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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
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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
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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
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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
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(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 mate
