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AMENDMENT NO. 1
Dated as of July 20, 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-AR4
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-AR4
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THIS AMENDMENT NO. 1, dated as of July 20, 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., 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, the 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. Amendments to Section 9.01.
(a) The first paragraph of Section 9.01 of the Pooling and Servicing
Agreement is hereby amended and restated in its entirety as follows:
"Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Servicer, and the Trustee created hereby shall terminate upon
the earlier of
(a) the purchase by the Servicer, at the direction of Xxxxxx
Brothers Inc. of all Mortgage Loans (and REO Properties) at the price
equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan
(other than in respect of a Delinquent Mortgage Loan or REO Property)
plus one month's accrued interest thereon at the applicable Adjusted
Mortgage Rate less any amounts collected by the Servicer representing
principal and interest due after the related Due Date,
(ii) the lesser of (x) the appraised value of any Delinquent
Mortgage Loan or REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the
Servicer at the expense of the Servicer and (y) the Stated Principal
Balance of each such Delinquent Mortgage Loan or Mortgage Loan related
to such REO Property, in each case plus accrued and unpaid interest
thereon at the applicable Adjusted Net Mortgage Rate, and
(iii) any costs and damages incurred by the Trust Fund in
connection with any violation by each Mortgage Loan of any predatory or
abusive lending law, and
(b) the later of
(i) the maturity or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan and the disposition of all REO
Property and
(ii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement. In no
event shall the trusts created hereby continue beyond the expiration of
21 years from the death of the survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St.
James's, living on the date of this Agreement."
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(b) The second paragraph of Section 9.01 of the Pooling and Servicing
Agreement is hereby amended by adding the following language immediately after
the first sentence:
"The Servicer may repurchase all Mortgage Loans, Delinquent Loans and
REO Property at the direction of Xxxxxx Brothers Inc. Following such
repurchase, the Servicer shall direct the Trustee to transfer all Mortgage
Loans, Delinquent Loans and REO Property to the Person designated by Xxxxxx
Brothers Inc."
SECTION 3. Amendment to Exhibit O.
Exhibit O of the Pooling and Servicing Agreement is hereby deleted in
its entirety and replaced with "[Reserved]".
SECTION 4. 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-AR4
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;
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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
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 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 No. 1 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
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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
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Title: Associate
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