EXHIBIT 99.1
------------
The Amendment.
================================================================================
AMENDMENT NO. 2
Dated as of October 23, 2006
to
POOLING AND SERVICING AGREEMENT
Dated as of May 1, 2006
among
INDYMAC MBS, INC.,
Depositor,
INDYMAC BANK, F.S.B.,
Servicer
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee
INDYMAC INDX MORTGAGE LOAN TRUST 2006-AR8
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-AR8
================================================================================
THIS AMENDMENT NO. 2, dated as of October 23, 2006 (the "Amendment"),
to the POOLING AND SERVICING AGREEMENT, dated as of May 1, 2006 (as amended by
Amendment No. 1, the "Pooling and Servicing Agreement"), among INDYMAC MBS,
INC., as Depositor ( the "Depositor"), INDYMAC BANK, F.S.B., as Servicer (the
"Servicer") and as seller, and DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee
(the "Trustee"), as amended by Amendment Xx. 0 ("Xxxxxxxxx Xx. 0"), dated as of
October 5, 2006, among the Depositor, the Servicer and the Trustee, is among the
Depositor, the Servicer and 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. Amendment to Section 9.01
(i) The language immediately following (a) of Section 9.01 of the
Pooling and Servicing Agreement is hereby amended and restated in its entirety
as follows:
"(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"
(ii) The second sentence of the second paragraph of Section 9.01 of the
Pooling and Servicing Agreement is hereby amended and restated in its entirety
as follows:
"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. 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 4. 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.
2
SECTION 5. 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 6. 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 7. 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 8. Section Headings.
The section headings herein are for convenience of reference only, and
shall not limit or otherwise affect the meaning hereof.
SECTION 9. 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.
3
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
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
---------------------------------
Title: Associate
---------------------------------
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
---------------------------------
Title: Vice President
---------------------------------
IndyMac INDX Mortgage Loan Trust 2006-AR8
Amendment No. 2 to the Pooling and Servicing Agreement
