Exhibit 99.1
Amendment No.1 to the Pooling and Servicing Agreement
AMENDMENT NO. 1
Dated as of August 22, 2006
to
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2006
among
INDYMAC MBS, INC.,
Depositor,
INDYMAC BANK, F.S.B.,
Seller and Servicer
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee
INDYMAC INDX MORTGAGE LOAN TRUST 2006-AR5
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-AR5
THIS AMENDMENT NO. 1, dated as of August 22, 2006 (the "Amendment"), to
the POOLING AND SERVICING AGREEMENT, dated as of March 1, 2006 (the "Pooling
and Servicing Agreement"), is among INDYMAC MBS, INC., as Depositor ( the
"Depositor"), INDYMAC BANK, F.S.B. ("IndyMac Bank"), as Servicer (the
"Servicer"), and DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee (the
"Trustee").
W I T N E S S E T H
WHEREAS, the Depositor, IndyMac Bank, as Seller and Servicer, and the
Trustee entered into the Pooling and Servicing Agreement;
WHEREAS, pursuant to the first paragraph of Section 10.01 of the Pooling
and Servicing Agreement, the Pooling and Servicing Agreement may be amended
from time to time by the Depositor, the Servicer and the Trustee for the
purpose of curing any ambiguity or mistake;
WHEREAS, the Depositor, the Servicer and the Trustee desire to amend the
Pooling and Servicing Agreement pursuant to the first paragraph of Section
10.01 in order to make certain modifications as set forth herein;
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.
SECTION 2. Amendment to the Table of Contents regarding Exhibit O.
-------------------------------------------------------
The Table of Contents regarding Exhibit O is hereby amended and restated
in its entirety as follows:
"Exhibit O: [Reserved]..............................................O-1"
SECTION 3. Amendment to the eighth paragraph of Section 2.02
-------------------------------------------------
The eighth paragraph of Section 2.02 of the Pooling and Servicing
Agreement is hereby amended by deleting the words "in the form of Exhibit O"
and it shall read as follows:
"The Purchase Price for any Mortgage Loan shall be deposited by the
Seller in the Certificate Account by the Distribution Account Deposit Date for
the Distribution Date in the month following the month of repurchase and, upon
receipt of the deposit and certification with respect thereto, the Trustee
shall release the related Mortgage File to the Seller and shall execute and
deliver at the Seller's request any instruments of transfer or assignment
prepared by the Seller, in each case without recourse, necessary to vest in
the Seller, or a designee, the Trustee's interest in any Mortgage Loan
released pursuant hereto."
SECTION 4. Amendment to Section 2.03(a)
----------------------------
Section 2.03(a) of the Pooling and Servicing Agreement is hereby amended
by adding the following:
"The Servicer will fully furnish, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information (i.e., favorable and unfavorable) on its credit files for the
related Mortgagor for each Mortgage Loan to Equifax, Experian and Trans Union
Credit Information Company on a monthly basis."
SECTION 5. Amendment to Section 2.03(c)
----------------------------
Section 2.03(c) of the Pooling and Servicing Agreement is hereby amended
by adding the following immediately after the first sentence of Section
2.03(c):
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"Any breach of the representation or warranty made pursuant to clauses
(36), (37), (38), (39), (40), (41), (42), (43), (44), (45) and (46) of
Schedule III or a breach of the covenant of the Servicer made pursuant to
clause (a) above will be deemed to materially and adversely affect the
interests of the Certificateholder in the related Mortgage Loan."
SECTION 6. Amendment to Section 2.07
-------------------------
Section 2.07 of the Pooling and Servicing Agreement is hereby amended by
adding the following sentence immediately after the last sentence of Section
2.07:
"Each REMIC's fiscal year shall be the calendar year."
SECTION 7. Amendment to Section 3.05
-------------------------
Section 3.05 of the Pooling and Servicing Agreement is hereby amended by
replacing and restating the first parenthetical of Section 3.05. The first
parenthetical of Section 3.05 shall read as follows:
"(including because of the occurrence or existence of an Event of
Default or termination by the Depositor)"
SECTION 8. Amendment to Schedule III of the Pooling and Servicing
------------------------------------------------------
Agreement.
----------
Schedule III of the Pooling and Servicing Agreement is hereby amended by
adding the following additional representations:
(47) Each Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code.
(48) With respect to any Mortgage Loan in Loan Group 2, if the related
Mortgage or the related Mortgage Note, or any document relating to the loan
transaction, contains a mandatory arbitration clause (that is, a clause that
requires the borrower to submit to arbitration to resolve any dispute arising
out of or relating in any way to the mortgage loan transaction), IndyMac will
(i) notify the related borrower in writing within 60 days after the issuance
of the Certificates that none of the Seller, the Master Servicer or any
subsequent party that acquires an interest in the loan or services such
Mortgage Loan will enforce such arbitration clause against the borrower, but
that the borrower will continue to have the right to submit a dispute to
arbitration and (ii) place a copy of such notice in the Mortgage File; and
with respect to any Mortgage Loan originated on or after May 1, 2005, neither
the related Mortgage nor the related Mortgage Note requires the borrower to
submit to arbitration to resolve any dispute arising out of or relating in any
way to the mortgage loan transaction.
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SECTION 9. Amendment to Exhibit U.
-----------------------
Exhibit U of the Pooling and Servicing Agreement is hereby amended in
its entirety and will read as follows:
"FORM OF XXXXXXXX-XXXXX CERTIFICATION
(Replacement of Servicer)
Re: IndyMac INDX Mortgage Loan Trust 2006-AR5
-----------------------------------------
The undersigned Servicer hereby certifies to the Depositor and its
officers, directors and Affiliates (collectively, the "Certification Parties")
as follows, with the knowledge and intent that the Certification Parties will
rely on this Certification in connection with the certification concerning the
Trust Fund to be signed by an officer of the Depositor and submitted to the
Securities and Exchange Commission pursuant to the Xxxxxxxx-Xxxxx Act of 2002:
1. I have reviewed the servicer compliance statement of the Servicer
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Servicer's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria"), provided in accordance with Rules 13a-18 and 15d-18 under
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Item 1122
of Regulation AB (the "Servicing Assessment"), the registered public
accounting firm's attestation report provided in accordance with Rules 13a-18
and 15d-18 under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report"), and all servicing reports, officer's certificates and
other information relating to the servicing of the Mortgage Loans by the
Servicer during 200[ ] that were delivered by the Servicer to the Trustee
pursuant to the Agreement (collectively, the "Servicing Information");
2. Based on my knowledge, the Servicing Information, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with
respect to the period of time covered by the Servicing Information;
3. Based on my knowledge, all of the Servicing Information required to
be provided by the Servicer under the Agreement has been provided to the
Depositor or the Trustee, as applicable;
4. I am responsible for reviewing the activities performed by the
Servicer as servicer under the Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among IndyMac MBS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller and Servicer, and Deutsche Bank
National Trust Company, as Trustee and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and except
as disclosed in the Compliance Statement, the Pooling and Servicing Assessment
or the Attestation Report, the Servicer has fulfilled its obligations under
the Agreement in all material respects; and
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5. The Compliance Statement required to be delivered by the Servicer
pursuant to the Pooling and Servicing Agreement, and the Servicing Assessment
and Attestation Report required to be provided by the Servicer and by any
Reporting Subcontractor pursuant to the Agreement, have been provided to the
Depositor. Any material instances of noncompliance described in such reports
have been disclosed to the Depositor. Any material instance of noncompliance
with the Servicing Criteria has been disclosed in such reports.
[SERVICER]
By:
-----------------------------
Name:
Title:
Date:
---------------------------"
SECTION 10. 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 11. Notices.
-------
The parties hereto acknowledge that pursuant to Section 10.05(a)1. of
the Pooling and Servicing Agreement, the Trustee shall use its best efforts to
promptly provide notice to each Rating Agency of this Amendment.
SECTION 12. 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 13. 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.
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SECTION 14. 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 15. Section Headings.
-----------------
The section headings herein are for convenience of reference only, and
shall not limit or otherwise affect the meaning hereof.
SECTION 16. Counterparts.
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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.
INDYMAC MBS, INC.,
as Depositor
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
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Title: Vice President
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INDYMAC BANK, F.S.B.
as Servicer
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxx
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Title: Vice President
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DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By: /s/ Xxxxxxxx Xxxxxxxxxxx
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Name: Xxxxxxxx Xxxxxxxxxxx
-------------------------------
Title: Associate
-------------------------------
