Exhibit 99.1
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AMENDMENT NO. 1
Dated as of July 20, 2006
to
POOLING AND SERVICING AGREEMENT
Dated as of February 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-AR2
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-AR2
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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 February 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 2.03.
Section 2.03(a) of the Pooling and Servicing Agreement is hereby
amended by deleting all references to "Group 1" and replacing them with "Group
2".
Section 2.03(c) of the Pooling and Servicing Agreement is hereby
amended by deleting all references to "Group 1" and replacing them with "Group
2".
SECTION 3. Amendment to Section 4.05(a).
Section 4.05(a) of the Pooling and Servicing Agreement is hereby
amended and restated in its entirety as follows:
"Not later than each Distribution Date, the Trustee shall prepare and
make available on its website at ▇▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/▇▇▇▇ to each
Certificateholder, the Certificate Insurer, the Servicer and the Depositor a
statement for the related distribution of
(i) the applicable Record Dates, Interest Accrual Periods and
Determination Dates for calculating distributions for the Distribution
Date;
(ii) the amount of funds received from the Servicer for the
Distribution Date separately identifying amounts received in respect of
the Mortgage Loans and the amount of Advances included in the
distribution on the Distribution Date;
(iii) the Servicing Fee;
(iv) the Trustee Fee for the Distribution Date;
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(v) the aggregate amount of expenses paid from amounts on deposit in
the Distribution Account;
(vi) the aggregate amount on deposit in the Distribution Account and
Carryover Reserve Fund, as of the beginning and end of the related Due
Period;
(vii) the amount of the distribution allocable to principal,
separately identifying the aggregate amount of any scheduled principal,
Net Prepayments, Principal Prepayments in Full, partial Principal
Prepayments and Liquidation Proceeds included therein;
(viii) if the distribution to the Holders of any Class of
Certificates is less than the full amount that would be distributable to
them if sufficient funds were available, the amount of the shortfall and
the allocation of the shortfall between principal and interest;
(ix) the aggregate outstanding Interest Carry Forward Amount, Net
Prepayment Interest Shortfalls, Net Rate Carryover and unpaid Net Rate
Carryover for each applicable Class of Certificates, after giving effect
to the distributions made on that Distribution Date.
(x) the Interest Remittance Amount, the Principal Remittance Amount,
the Senior Principal Distribution Amount and the Overcollateralization
Release Amount applicable to that Distribution Date;
(xi) the Overcollateralized Amount, after giving effect to
distributions made on that Distribution Date;
(xii) the amount of any Overcollateralization Deficiency Amount,
after giving effect to distributions made on that Distribution Date;
(xiii) whether a Trigger Event is in effect for that Distribution
Date;
(xiv) the aggregate amount of Applied Realized Loss Amounts and in
the aggregate incurred and Subsequent Recoveries, if any, received during
the preceding calendar month and aggregate Realized Losses through the
Distribution Date;
(xv) the Class Certificate Balance of each Class of Certificates
before and after giving effect to the distribution of principal on the
Distribution Date;
(xvi) the Pass-Through Rate for each Class of Certificates with
respect to the Distribution Date;
(xvii) the LIBOR rate and MTA rate applicable for that Distribution
Date;
(xviii) the number and aggregate Stated Principal Balance of the
Mortgage Loans as the first day of the related Due Period and the last
day of the related Due Period;
(xix) as of the last day of the related Due Period:
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(A) the weighted average mortgage rate of the Mortgage Loans,
and
(B) the weighted average remaining term to maturity of the
Mortgage Loans;
(xx) the number and aggregate outstanding Stated Principal Balance
of the Mortgage Loans as of the end of the preceding calendar month:
(A) delinquent (exclusive of Mortgage Loans in foreclosure)
(1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more
days and
(B) in foreclosure and delinquent (1) 30 to 59 days, (2) 60 to
89 days and (3) 90 or more days,
in each case as of the close of business on the last day of the calendar
month preceding the Distribution Date;
(xxi) for each of the preceding 12 calendar months, or all calendar
months since the Cut-off Date, whichever is less, the aggregate dollar
amount of the Scheduled Payments (A) due on all Outstanding Mortgage
Loans on the Due Date in each such month and (B) delinquent sixty (60)
days or more on the Due Date in each such month;
(xxii) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of the Mortgage Loan as of the close of business on the
Determination Date preceding the Distribution Date;
(xxiii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding the Distribution Date;
(xxiv) the aggregate amount of Principal Prepayments received during
the related Prepayment Period and the number of Mortgage Loans subject to
such Principal Prepayments;
(xxv) the amount of Advances included in the distribution on the
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on the Distribution Date;
(xxvi) the aggregate amount of Advances reimbursed during the
related Due Period, the general source of funds for such reimbursements
and the aggregate amount of Advances outstanding as of the close of
business on the Distribution Date;
(xxvii) the aggregate amount of Servicing Advances reimbursed during
the related Due Period, the general source of funds for such
reimbursements and the aggregate amount of Servicing Advances outstanding
as of the close of business on the Distribution Date;
(xxviii) the aggregate number and outstanding Stated Principal
Balance of Mortgage Loans repurchased during the related Due Period due
to material breaches of representations and warranties regarding such
Mortgage Loans;
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(xxix) with respect to the second Distribution Date, the number and
aggregate balance of any Delayed Delivery Mortgage Loans not delivered
within the time periods specified in the definition of Delayed Delivery
Mortgage Loans;
(xxx) Prepayment Charges collected, waived, and paid by the
Servicer; (xxxi) the aggregate Stated Principal Balance of the Mortgage
Loans that became Liquidated Mortgage Loans in the prior month and since
the Cut-off Date immediately prior to the Stated Principal Balance being
reduced to zero;
(xxxii) the amount of any Net Rate Carryover from the Carryover
Reserve Fund;
(xxxiii) the aggregate amount of Deferred Interest on the Mortgage
Loans for the related Due Date, and the cumulative amount of Deferred
Interest on the Mortgage Loans through that Distribution Date;
(xxxiv) the aggregate amount of Net Deferred Interest on the
Mortgage Loans for that Distribution Date, and the amount allocated to
each Class of Certificates on that Distribution Date and the cumulative
amount of Net Deferred Interest on the Mortgage Loans allocated to each
Class of Certificates through that Distribution Date;
(xxxv) the Stated Principal Balance of any Mortgage Loan that has
been repurchased by the Servicer in accordance with Section 2.02, 2.03 or
3.12; and
(xxxvi) the Stated Principal Balance of any Substitute Mortgage Loan
provided by the Seller and the Stated Principal Balance of any Mortgage
Loan that has been replaced by a Substitute Mortgage Loan in accordance
with Section 2.03.
By each Determination Date the Servicer shall provide to the Trustee
in electronic form the information needed to determine the distributions to be
made pursuant to Section 4.02 and any other information on which the Servicer
and the Trustee mutually agree."
SECTION 4. 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 ▇▇▇▇▇▇ 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
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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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the
late Ambassador of the United States to the Court of St. James's, living
on the date of this Agreement."
(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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
Brothers Inc."
SECTION 5. Amendments to Schedule III.
Schedule III of the Pooling and Servicing Agreement is hereby amended
by deleting all references to "Group 1" contained in representations numbered
(43), (48), (49) and (50) and by replacing all such references with "Group 2".
SECTION 6. Amendment to Exhibit O.
Exhibit O of the Pooling and Servicing Agreement is hereby deleted in
its entirety and replaced with "[Reserved]".
SECTION 7. Amendment to Exhibit S.
Exhibit S of the Pooling and Servicing Agreement is hereby amended by
adding the following provisions:
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"Where there are multiple checks for criteria the attesting party will
identify in their management assertion that they are attesting only to the
portion of the distribution chain they are responsible for in the related
transaction agreements.
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Reg AB
Referenceee Servicing Criteria Servicer Trustee Notes
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1122(d)(1)(i) Policies and procedures are X X
instituted to monitor any
performance or other triggers
and events of default in
accordance with the transaction
agreements.
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1122(d)(1)(ii) If any material servicing X X
activities are outsourced to
third parties, policies and
procedures are instituted to
monitor the third party's
performance and compliance with
such servicing activities.
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1122(d)(1)(iii) Any requirements in the NA
transaction agreements to
maintain a back-up servicer for
the Pool Assets are maintained.
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1122(d)(1)(iv) A fidelity bond and errors and X
omissions policy is in effect
on the party participating in
the servicing function
throughout the reporting period
in the amount of coverage
required by and otherwise in
accordance with the terms of
the transaction agreements.
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Reg AB
Referenceee Servicing Criteria Servicer Trustee Notes
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1122(d)(2)(i) Payments on pool assets are X X
deposited into the appropriate
custodial bank accounts and
related bank clearing accounts
no more than two business days
following receipt, or such
other number of days specified
in the transaction agreements.
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1122(d)(2)(ii) Disbursements made via wire X X
transfer on behalf of an obligor or
to an investor are made only by
authorized personnel.
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1122(d)(2)(iii) Advances of funds or X
guarantees regarding
collections, cash flows or
distributions, and any
interest or other fees charged
for such advances, are made,
reviewed and approved as
specified in the transaction
agreements.
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1122(d)(2)(iv) The related accounts for the X X
transaction, such as cash
reserve accounts or accounts
established as a form of over
collateralization, are
separately maintained (e.g.,
with respect to commingling of
cash) as set forth in the
transaction agreements.
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1122(d)(2)(v) Each custodial account is X X
maintained at a federally
insured depository institution
as set forth in the
transaction agreements. For
purposes of this criterion,
"federally insured depository
institution" with respect to a
foreign financial institution
means a foreign financial
institution that meets the
requirements of Rule
13k-1(b)(1) of the Securities
Exchange Act.
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1122(d)(2)(vi) Unissued checks are X safeguarded X
so as to prevent unauthorized
access.
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1122(d)(2)(vii) Reconciliations are prepared X X
on a monthly basis for all
asset-backed securities
related bank accounts,
including custodial accounts
and related bank clearing
accounts. These
reconciliations are (A)
mathematically accurate; (B)
prepared within 30 calendar
days after the bank statement
cutoff date, or such other
number of days specified in
the transaction agreements;
(C) reviewed and approved by
someone other than the person
who prepared the
reconciliation; and (D)
contain explanations for
reconciling items. These
reconciling items are resolved
within 90 calendar days of
their original identification,
or such other number of days
specified in the transaction
agreements.
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Reg AB
Referenceee Servicing Criteria Servicer Trustee Notes
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1122(d)(3)(i) Reports to investors, X X
including those to be filed
with the Commission, are
maintained in accordance with
the transaction agreements and
applicable Commission
requirements. Specifically,
such reports (A) are prepared
in accordance with timeframes
and other terms set forth in
the transaction agreements;
(B) provide information
calculated in accordance with
the terms specified in the
transaction agreements; (C)
are filed with the Commission
as required by its rules and
regulations; and (D) agree
with investors' or the
trustee's records as to the
total unpaid principal balance
and number of Pool Assets
serviced by the Servicer.
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1122(d)(3)(ii) Amounts due to investors are X X
allocated and remitted in
accordance with timeframes,
distribution priority and
other terms set forth in the
transaction agreements.
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1122(d)(3)(iii) Disbursements made to an X X
investor are posted within two
business days to the
Servicer's investor records,
or such other number of days
specified in the transaction
agreements.
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1122(d)(3)(iv) Amounts remitted to investors Per X X
the investor reports agree with
cancelled checks, or other form of
payment, or custodial bank
statements.
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"
SECTION 8. 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
(Replacement of Servicer)
Re: IndyMac INDX Mortgage Loan Trust 2006-AR2
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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002:
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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
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.
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[SERVICER]
By: _____________________________
Name:
Title:
Date: _________________________"
SECTION 9. 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 10. 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.
SECTION 11. 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 12. 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 13. 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 14. Section Headings.
The section headings herein are for convenience of reference only, and
shall not limit or otherwise affect the meaning hereof.
SECTION 15. 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.
INDYMAC MBS, INC.,
as Depositor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President,
---------------------------------
Secondary Marketing
INDYMAC BANK, F.S.B.
as Servicer
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President,
---------------------------------
Secondary Marketing
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Associate
---------------------------------
