The Amendment.
EXHIBIT
99.1
The
Amendment.
AMENDMENT
NO. 1
Dated
as
of August 27, 2007
to
Dated
as
of January 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-FLX1
THIS
AMENDMENT NO. 1, dated as of August 27, 2007 (the
“Amendment”), to the POOLING AND SERVICING AGREEMENT,
dated as of January 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.
SECTION
2. Amendment to the table referring to the
REMIC 2 Interests under caption “REMIC 2” of the Preliminary
Statement
(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:
“(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 Net Rate Cap 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.”
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:
2
“(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 Net Rate Cap 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 Net Rate Cap 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 will be treated as a paid pursuant
to a
limited recourse interest rate cap contract as provided in Section
8.11.”
SECTION
4. Amendment
to Section 1.01.
(a) Section
1.01 of the Pooling and Servicing Agreement is hereby amended by adding the
following definition:
“Credit
Support Collateral Account: The separate Eligible
Account or Accounts created and maintained by the Supplemental Interest Trustee
pursuant to Section 3.06(h) with a depository institution in the name of
the Supplemental Interest Trustee for the benefit of the Supplemental Interest
Trust on behalf of the Holders of the Offered Certificates and designated
“IndyMac Bank, F.S.B., in trust for the registered Holders of IndyMac INDX
Mortgage Loan Trust 2007-FLX1, Mortgage Pass-Through Certificates, Series
2007-FLX1.””
(b) The
definition of “Certificate Balance” in Section 1.01 of
the Pooling and Servicing Agreement is hereby amended and restated in its
entirety and will read as follows:
“Certificate
Balance: With respect to any Certificate (other than
the Class C Certificates) at any date, the maximum dollar amount of principal
to
which the Holder thereof is then entitled under this Agreement, such amount
being equal to the Denomination thereof (A) minus the sum of (i) all
distributions of principal previously made with respect thereto and (ii)
all
Applied Realized Loss Amounts allocated to that Certificate and, in the case
of
any Subordinated Certificates, all other reductions in Certificate Balance
previously allocated to that Certificate pursuant to Section 4.02 and (B)
in the
case of any Class of Accrual Certificates, plus the Accrual Amount added
to the
Class Certificate Balance of such Class prior to such date.”
(c) The
definition of “Excess Cashflow” in Section 1.01 of the
Pooling and Servicing Agreement is hereby amended and restated in its entirety
and will read as follows:
“Excess
Cashflow: With respect to any Distribution Date (i) the
Interest Funds remaining after the distribution of interest to the Holders
of
the Certificates for that Distribution Date, (ii) the Overcollateralization
Release Amount and (iii) any Principal Remittance Amount for that Distribution
Date remaining after distributions of principal to the Offered
Certificates.”
3
SECTION
5. Amendment
to Section 3.06.
(a) Section
3.06 of the Pooling and Servicing Agreement is hereby amended by amending
and
restating in its entirety paragraph (h) of Section 3.06 and by adding a new
paragraph (i). Paragraphs (h) and (i) of Section 3.06 will read as
follows:
“(h) (i)
Upon the execution of an ISDA Credit Support Annex, the Supplemental Interest
Trustee shall establish and maintain in its name, in trust for the benefit
of
the Holders of the
LIBOR
Certificates, the Credit Support Collateral Account. The Credit
Support Collateral Account shall be an Eligible Account, and funds on deposit
in
the account shall be held separate and apart from, and shall not be commingled
with, any other moneys, including without limitation, other moneys held by
the
Supplemental Interest Trustee pursuant to this Agreement.
(ii)
The
Supplemental Interest Trustee shall deposit in the Credit Support Collateral
Account any collateral (whether in the form of cash, securities or any other
eligible investments) pledged by the Swap Counterparty under the ISDA Credit
Support Annex. If the Supplemental Interest Trustee shall also
deposit into the Credit Support Collateral Account any amount not required
to be
deposited in that account, it may at any time withdraw such amount from the
Credit Support Collateral Account, any provision in this Agreement to the
contrary notwithstanding.
(iii)
Funds on deposit in the Credit Support Collateral Account shall be applied
in
accordance with the terms of the ISDA Credit Support Annex.
(i) The
Servicer shall give notice to the Trustee, the Seller, each Rating Agency
and
the Depositor of any proposed change of the location of the Certificate Account
not later than 30 days and not more than 45 days prior to any change of this
Agreement. The Trustee shall give notice to the Servicer, the Seller,
each Rating Agency and the Depositor of any proposed change of the location
of
the Distribution Account not later than 30 days and not more than 45 days
prior
to any change of this Agreement.”
SECTION
6. 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
7. 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.
4
SECTION
8. 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
9. 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
10. 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
11. Section
Headings.
The
section headings herein are for convenience of reference only, and shall
not
limit or otherwise affect the meaning hereof.
SECTION
12. 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.
5
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 | |
| Name: Xxxx Xxxxxxxx | |||
| Title: Vice President | |||
| INDYMAC
BANK, F.S.B.
as
Servicer
|
|||
|
|
By:
|
/s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | |||
| Title: Vice President | |||
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
as
Trustee and Supplemental Interest Trustee
|
|||
|
|
By:
|
/s/ Xxxxxxxx Xxxxxxxxxxx | |
| Name: Xxxxxxxx Xxxxxxxxxxx | |||
| Title: Associate | |||
