The Amendment.
EXHIBIT
99.1
The
Amendment.
AMENDMENT
NO. 1
Dated
as
of August 27, 2007
to
Dated
as
of February 1, 2007
among
INDYMAC
MBS, INC.,
Depositor,
INDYMAC
BANK, F.S.B.,
Seller
and Servicer
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
and Supplemental Interest Trustee
MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES
2007-FLX2
THIS
AMENDMENT NO. 1, dated as of August 27, 2007 (the
“Amendment”), to the POOLING AND SERVICING AGREEMENT,
dated as of February 1, 2007 (the “Pooling and Servicing
Agreement”), is among INDYMAC MBS, INC., as Depositor ( the
“Depositor”), INDYMAC BANK, F.S.B., as Servicer
(the
“Servicer”), and DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee (the “Trustee”) and Supplemental Interest
Trustee (the “Supplemental Interest
Trustee”).
WITNESSETH
WHEREAS,
the Depositor, the Servicer and the Trustee entered into the Pooling and
Servicing Agreement;
WHEREAS,
the first paragraph under (iii) of Section 10.01 of the Pooling and Servicing
Agreement provides that the Pooling and Servicing Agreement may be amended
by
the Depositor, the Servicer and the Trustee without the consent of any of the
Certificateholders for the purpose of conforming the Pooling and Servicing
Agreement to the Prospectus Supplement;
WHEREAS,
Section 10.01 of the Pooling and Servicing Agreement provides that the Trustee
shall not consent to any amendment to the Pooling and Servicing Agreement unless
it shall have first received an Opinion of Counsel, which opinion shall not
be
an expense of the Trustee or the Trust Fund, to the effect that such amendment
will not cause the imposition of any tax on any REMIC created under the Pooling
and Servicing Agreement or the Certificateholders or cause any REMIC created
under the Pooling and Servicing Agreement to fail to qualify as a REMIC at
any
time that any Certificates are outstanding;
WHEREAS,
an Opinion of Counsel concerning the effect of this Amendment on any REMIC
created by the Pooling and Servicing Agreement has been delivered to the
Trustee;
WHEREAS,
Section 10.01 of the Pooling and Servicing Agreement provides that the Trustee
shall not be required to enter into an amendment to the Pooling and Servicing
Agreement without first receiving an Opinion of Counsel that the amendment
is
permitted and not prohibited by the Pooling and Servicing Agreement and that
all
requirements for amending the Pooling and Servicing Agreement have been complied
with, and covering certain other matters as specified therein;
WHEREAS,
an Opinion of Counsel addressing the matters described in the foregoing recital
has been delivered to the Trustee;
WHEREAS,
Section 10.01 provides that the Trustee shall not consent to any amendment
to
this Agreement unless the Trustee shall have received an Officer’s Certificate
to the effect that such amendment would not “significantly change” (within the
meaning of SFAS 140) the permitted activities of the Trust Fund so as to cause
to Trust Fund to fail to qualify as a Qualifying Special Purpose Entity;
and
WHEREAS,
an Officer’s Certificate addressing the matters described in the foregoing
recital has been delivered to the Trustee;
NOW,
THEREFORE, the parties hereto agree as follows:
SECTION
1. Defined
Terms.
For
purposes of this Amendment, unless the context clearly requires otherwise,
all
capitalized terms which are used but not otherwise defined herein shall have
the
respective meanings assigned to such terms in the Pooling and Servicing
Agreement.
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SECTION 2.
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Amendment
to the table referring to the REMIC 2 Interests under caption “REMIC 2” of
the Preliminary Statement
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(a) The
table referring to the REMIC 2 Interests under caption “REMIC 2” of the
Preliminary Statement is hereby amended by deleting and replacing in its
entirety footnote (1) of such table which will read as follows:
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“(1)
On each Distribution Date, Principal Amounts and Realized Losses
will be
allocated to the REMIC 2 Interests in such a manner that, following
such
allocations: (i) the principal balances of the REMIC 2
Interests (other than the Class 2-Accrual, Class 2-Swap IO and Class
R-2
Interests) will equal 50% of the Certificate Balance of their
Corresponding Certificates for such Distribution Date, (ii) the Class
2-Accrual Interest will have a principal balance equal to 50% of
the
aggregate principal balance of the Mortgage Loans plus 50% of the
Overcollateralized Amount. For purposes of clauses (i) and (ii)
in the immediately preceding sentence, the principal balances of
the
Corresponding Certificates will be adjusted as if any excess of LIBOR
plus
the related Pass-Through Margin subject to a cap equal to the REMIC
Cap
over the Available Funds Rate for such Class of Certificates and
any
Distribution Date, attributable to the allocation of Net Deferred
Interest
to such Class, were treated as deferred interest that is added to
the
principal balances of such
Certificates.”
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SECTION
3. Amendment
to section “The Master REMIC” of the Preliminary
Statement
(a) The
table of section “The Master REMIC” of the Preliminary Statement is hereby
amended by deleting and replacing in its entirety footnote (1) to such table
which will read as follows:
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“(1)
The Pass-Through Rate for this Class of Certificates for any Interest
Accrual Period for any Distribution Date will be a per annum rate
equal to
the lesser of (i) LIBOR for that Distribution Date plus the Pass-Through
Margin for that Class and that Interest Accrual Period and (ii) the
Available Funds Rate for that Distribution Date. Solely for
federal income tax purposes: (i) the principal balances of each Class
of
Certificates will be adjusted as if any excess of LIBOR plus the
related
Pass-Through Margin subject to a cap equal to the REMIC Cap over
the
Available Funds Rate for such Class of Certificates and any Distribution
Date, attributable to the allocation of Net Deferred Interest to
such
Class, were treated as deferred interest that is added to the principal
balances of such Certificates, and (ii) all monies received by the
Senior
and Subordinated Certificates in excess of the REMIC
Cap
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2
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will
be treated as a paid pursuant to a limited recourse interest rate
cap
contract as provided in Section
8.11.”
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SECTION
4. Amendment
to Section 1.01.
(a) Section
1.01 of the Pooling and Servicing Agreement is hereby amended by deleting and
restating in its entirety the definition of Senior Principal Distribution Amount
which will read as follows:
“Senior
Principal Distribution Amount: For any Distribution
Date on or after the Stepdown Date (and so long as no Trigger Event is in
effect), an amount equal to the lesser of: (i) the Principal Distribution Amount
for that Distribution Date; and (ii) the excess of (a) the aggregate Class
Certificate Balance of the Senior Certificates immediately prior to that
Distribution Date over (b) the lesser of (x) the product of (1) 86.75% for
any
Distribution Date prior to the Distribution Date in March 2013 and 89.40% for
any Distribution Date on or after the Distribution Date in March 2013 and (2)
the aggregate Stated Principal Balance of the Mortgage Loans as of the Due
Date
in the month prior to the month of that Distribution Date (after giving effect
to Principal Prepayments in the Prepayment Period related to that prior Due
Date) and (y) the aggregate Stated Principal Balance of the Mortgage Loans
as of
the Due Date related to the month of that Distribution Date (after giving effect
to Principal Prepayments in the Prepayment Period related to that prior Due
Date), minus the OC Floor.”
SECTION
5. Effect
of Amendment.
Upon
execution of this Amendment, the Pooling and Servicing Agreement shall be,
and
be deemed to be, modified and amended in accordance herewith and the respective
rights, limitations, obligations, duties, liabilities and immunities of the
Depositor, the Servicer and the Trustee shall hereafter be determined, exercised
and enforced subject in all respects to such modifications and amendments,
and
all the terms and conditions of this Amendment shall be and be deemed to be
part
of the terms and conditions of the Pooling and Servicing Agreement for any
and
all purposes. Except as modified and expressly amended by this
Amendment, the Pooling and Servicing Agreement is in all respects ratified
and
confirmed, and all the terms, provisions and conditions thereof shall be and
remain in full force and effect.
SECTION
6. Notices.
The
parties hereto acknowledge that pursuant to Section 10.05(a) of the Pooling
and
Servicing Agreement, the Trustee shall use its best efforts to promptly provide
notice to each Rating Agency of this Amendment.
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SECTION
7. Binding Effect.
The
provisions of this Amendment shall be binding upon and inure to the benefit
of
the respective successors and assigns of the parties hereto, and all such
provisions shall inure to the benefit of the Trustee and the related
Certificateholders.
SECTION
8. Governing
Law.
This
Amendment shall be construed in accordance with and governed by the substantive
laws of the State of New York applicable to agreements made and to be performed
in the State of New York and the obligations, rights and remedies of the parties
hereto and the Certificateholders shall be determined in accordance with such
laws.
SECTION
9. Severability
of Provisions.
If
any
one or more of the provisions or terms of this Amendment shall be for any reason
whatsoever held invalid, then such provisions or terms shall be deemed severable
from the remaining provisions or terms of this Amendment and shall in no way
affect the validity or enforceability of the other provisions or terms of this
Amendment or of the Certificates or the rights of the Holders
thereof.
SECTION
10. Section
Headings.
The
section headings herein are for convenience of reference only, and shall not
limit or otherwise affect the meaning hereof.
SECTION
11. Counterparts.
This
Amendment may be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
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IN
WITNESS WHEREOF, the Depositor, the
Servicer and the Trustee have caused this Amendment to be duly executed by
their
respective officers thereunto duly authorized, all as of the day and year first
above written.
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INDYMAC
MBS, INC.,
as
Depositor
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By:
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/s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | |||
| Title: Vice President | |||
| INDYMAC
BANK, F.S.B.
as
Servicer
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By:
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/s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | |||
| Title: Vice President | |||
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DEUTSCHE
BANK NATIONAL TRUST COMPANY,
as
Trustee and Supplemental Interest Trustee
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By:
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/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Associate | |||
