AMENDMENT NO. 1 TO THE SALE AND SERVICING AGREEMENT
Exhibit
4.1
AMENDMENT
NO. 1
TO
THE
Amendment
No. 1, dated as of October 31, 2007 (the “Amendment”),
to
the Sale and Servicing Agreement (the “Agreement”)
dated
as of May 1, 2006, by and among NovaStar Certificates Financing Corporation,
as
depositor (the “Depositor”),
NovaStar Mortgage, Inc., as sponsor and servicer (the “Sponsor”
or
“Servicer”),
NovaStar Financial, Inc., as seller (the “Seller”),
NovaStar Mortgage Funding Trust, Series 2006-MTA1, as issuing entity (the
“Issuing
Entity”),
U.S.
Bank National Association, as custodian (the “Custodian”),
The
Bank of New York (as successor to JPMorgan Chase Bank, National Association),
as
indenture trustee (the “Indenture
Trustee”)
and
The Bank of New York (as successor to X.X. Xxxxxx Trust Company, National
Association), as co-trustee (the “Co-Trustee”).
Capitalized terms used and not defined herein shall have the meaning set
forth
in the Agreement and Appendix I thereto.
WHEREAS
the parties hereto have entered into the Agreement;
WHEREAS
the parties hereto now wish to amend certain provisions in the Agreement
pursuant to Section 11.03 of the Agreement; and
WHEREAS
the Indenture Trustee shall not consent to this Amendment to the Agreement
unless it shall have first received an Opinion of Counsel, to the effect
that
(a) this Amendment (i) will not prevent the Notes from being characterized
as
debt for United States federal income tax purposes or cause the Issuing Entity
to be subject to an entity-level tax for federal income tax purposes, and
(ii)
shall not adversely affect in any material respect the interests of any
Noteholder, and (b) any applicable requirements and conditions set forth
in the
Agreement with respect to the adoption of amendments thereto have been complied
with.
NOW,
THEREFORE, in consideration of the promises and mutual agreements contained
herein, the parties hereto agree to amend the Agreement pursuant to Section
11.03 of the Agreement and restate certain provisions thereof as
follows:
1. The
Amendment.
(a)
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Revised
Section 5.07(a).
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Section
5.07(a) is hereby amended so as to read as set forth in Exhibit A
hereto.
(b) Appendix
I is hereby amended to add the following definition, between “Administrative
Fee” and “Affiliate”:
"Advance":
As to
any Mortgage Loan, any advance made by the Servicer in respect of any Payment
Date pursuant to Section 5.25.
2. Condition
to effectiveness.
As a
condition to the effectiveness of this Amendment, an Opinion of Counsel
satisfying the requirements of Section 11.03 of the Agreement has been received
by the parties hereto.
3. Effect
of Amendment.
This
Amendment to the Agreement shall be effective and the Agreement shall be
deemed
to be modified and amended in accordance herewith on the Payment Date on
the
date on which the Indenture Trustee receives an executed copy of this Amendment.
This Amendment, once effective, shall be effective as of the date first set
forth above. The respective rights, limitations, obligations, duties,
liabilities and immunities of the Depositor, the Sponsor, the Servicer, the
Issuing Entity, the Custodian, the Co-Trustee and the Indenture 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 Agreement
for any and all purposes. The Agreement, as amended hereby, is hereby ratified
and confirmed in all respects.
4. The
Agreement in Full Force and Effect as Amended.
Except
as specifically amended hereby, all the terms and conditions of the Agreement
shall remain in full force and effect and, except as expressly provided herein,
the effectiveness of this Amendment shall not operate as, or constitute a
waiver
or modification of, any right, power or remedy of any party to the Agreement.
All references to the Agreement in any other document or instrument shall
be
deemed to mean the Agreement as amended by this Amendment.
5. Counterparts.
This
Amendment may be executed by the parties in several counterparts, each of
which
shall be deemed to be an original and all of which shall constitute together
but
one and the same agreement. This Amendment shall become effective when
counterparts hereof executed on behalf of such party shall have been
received.
6. Governing
Law.
This
Amendment shall be construed in accordance with and governed by the laws
of the
State of New York applicable to agreements made and to be performed
therein.
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7. Limitation
of Owner Trustee Liability.
It is
expressly understood and agreed by the parties that (a) this document is
executed and delivered by Wilmington Trust Company, not individually or
personally, but solely as Owner Trustee, in the exercise of the powers and
authority conferred and vested in it, pursuant to the Trust Agreement, (b)
each
of the representations, undertakings and agreements herein made on the part
of
the Issuing Entity is made and intended not as personal representations,
undertakings and agreements by Wilmington Trust Company but is made and intended
for the purpose for binding only the Issuing Entity, (c) nothing herein
contained shall be construed as creating any liability on Wilmington Trust
Company, individually or personally, to perform any covenant either expressed
or
implied contained herein, all such liability, if any, being expressly waived
by
the parties hereto and by any person claiming by, through or under the parties
hereto, and (d) under no circumstances shall Wilmington Trust Company be
personally liable for the payment of any indebtedness or expenses of the
Issuing
Entity or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Issuing Entity under this
Amendment or any other related documents.
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IN
WITNESS WHEREOF, the Depositor, Sponsor, the Servicer, the Seller, the Issuing
Entity, the Indenture Trustee, the Co-Trustee and the Custodian, have caused
this Amendment to be duly executed by their officers thereunto duly authorized,
all as of the day and year first above written.
NOVASTAR
CERTIFICATES FINANCING CORPORATION, as Depositor
By: /s/
Xxxx Xxxxxxxxxxxx
Name: Xxxx
Xxxxxxxxxxxx
Title: Vice
President
NOVASTAR
MORTGAGE, INC.,
as
Sponsor and as Servicer
By: /s/
Xxxx Xxxxxxxxxxxx
Name: Xxxx
Xxxxxxxxxxxx
Title: Vice
President
NOVASTAR
MORTGAGE FUNDING TRUST, SERIES 2006-MTA1, as Issuing Entity
By: WILMINGTON
TRUST COMPANY, not in its individual capacity, but solely as Owner
Trustee
under the Trust Agreement
By: /s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx X. Xxxxx
Title:
Vice President
U.S.
BANK NATIONAL ASSOCIATION, as Custodian
By: /s/
Xxxxxxx Rhode
Name:
Xxxxxxx Rhode
Title:
Assistant Vice President
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[Signature
Page for Amendment No. 1 to the Sale and Servicing Agreement -
Section
5.07]
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NOVASTAR
FINANCIAL, INC., as Seller
By:__/s/
Xxxx Xxxxxxxxxxxx _______________
Name: Xxxx
Xxxxxxxxxxxx
Title: Vice
President
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THE
BANK OF NEW YORK,
not in its individual capacity but solely as Indenture
Trustee
By: /s/
Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Assistant Vice President
THE
BANK OF NEW YORK,
not in its individual capacity but solely as Co-Trustee
By: /s/
Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Assistant Vice President
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DB
STRUCTURED PRODUCTS, INC.
hereby
consents to the foregoing Amendment as lender under certain financing
facilities:
By:__/s/
Xxxxx Xxxxxxx __________________
Name:
Xxxxx Xxxxxxx
Title:
Director
WACHOVIA
BANK, N.A.
hereby
consents to the foregoing Amendment as lender under certain financing
facilities:
By:__/s/
Xxxxxx X. Xxxxx ______________
Name:
Xxxxxx X. Xxxxx
Title:
Director
WACHOVIA
CAPITAL MARKETS, LLC
hereby
consents to the foregoing Amendment as lender under certain financing
facilities:
By:__/s/
Xxxxx Xxxxxx __________________
Name:
Xxxxx Xxxxxx
Title:
Vice President
WACHOVIA
INVESTMENT HOLDINGS, LLC
hereby
consents to the foregoing Amendment as lender under certain financing
facilities:
By:__/s/
Xxxxx Xxxxxx ___________________
Name:
Xxxxx Xxxxxx
Title:
Vice President
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[Signature
Page for Amendment No. 1 to the Sale and Servicing Agreement - Section
5.07]
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Exhibit
A
Amended
Section 5.07 to the Sale and Servicing Agreement
Section
5.07 Withdrawals
from the Collection Account.
(a)
The
Servicer shall, from time to time as provided herein, make withdrawals from
the
Collection Account of amounts on deposit therein pursuant to Section 5.06
that
are attributable to the Mortgage Loans for the following purposes (without
duplication):
(i) to
deposit in the Payment Account, by the Servicer Remittance Date prior to
each
Payment Date, all collections on the Mortgage Loans required to be distributed
from the Payment Account on a Payment Date;
(ii) to
the
extent deposited to the Collection Account, to reimburse itself or the related
Subservicer for Servicing Advances paid to maintain individual insurance
policies pursuant to Section 5.11, or Liquidation Expenses, paid pursuant
to
Section 5.13, such withdrawal right being limited to amounts received on
particular Mortgage Loans (other than any Repurchase Price in respect thereof)
which represent late recoveries of the payments for which such expenses were
paid, or from related Liquidation Proceeds;
(iii) to
pay to
itself out of each payment received on account of interest on a Mortgage
Loan as
contemplated by Section 5.15, an amount equal to the related Servicing Fee
(to
the extent not retained pursuant to Section 5.06);
(iv) to
pay to
itself or the Sponsor or the Seller, as applicable, with respect to any Mortgage
Loan or property acquired in respect thereof that has been purchased by the
Sponsor or the Seller, as applicable, the Servicer or other entity, all amounts
received thereon and not required to be distributed to Noteholders as of
the
date on which the related Repurchase Price is determined;
(v) to
reimburse the Servicer or any Subservicer for any unreimbursed Advance or
Servicing Advance of its own funds or any unreimbursed advance of such
Subservicer’s own funds, the right of the Servicer or a Subservicer to
reimbursement pursuant to this subclause (v) being limited to amounts received
on a particular Mortgage Loan (including, for this purpose, the Repurchase
Price
therefor, Insurance Proceeds and Liquidation Proceeds) which represent late
payments or recoveries of the principal of or interest on such Mortgage Loan
respecting which such Advance, Servicing Advance or advance was
made;
(vi) to
reimburse the Servicer or any Subservicer from Insurance Proceeds or Liquidation
Proceeds relating to a particular Mortgage Loan for Servicing Advances expended
by the Servicer or such Subservicer pursuant to Section 5.13: (x) in good
faith
in connection with the restoration of the related Mortgaged Property which
was
damaged by the uninsured cause, (y) in connection with the liquidation of
such
Mortgage Loan, or (z) with respect to an MI Claim Payment Advance made by
the
Servicer with respect to such Mortgage Loan; provided, however, that
reimbursements pursuant to clause (z) may only be made from MI Insurance
Proceeds actually paid by the MI Insurer under the MI Policy related to such
Mortgage Loan;
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(vii) to
reimburse the Servicer or any Subservicer for any unreimbursed Nonrecoverable
Advance or Servicing Advance previously made, and to reimburse any successor
Servicer for any Servicing Transfer Costs, including any legal fees or expenses
relating to any such transfer, in each case not paid by the transferring
Servicer, in each case otherwise not reimbursed pursuant to this Section
5.07(a);
(viii) to
withdraw any other amount deposited in the Collection Account that was not
required to be deposited therein pursuant to Section 5.06;
(ix) to
reimburse the Servicer for costs associated with the environmental report
handling the presence of any toxic or hazardous substance on a Mortgaged
Property as set forth in Section 5.13(c);
(x) to
clear
and terminate the Collection Account upon a termination pursuant to Section
9.01;
(xi) to
pay to
the Servicer income earned on Eligible Investments in the Collection
Account;
(xii) to
pay to
the MI Insurer the monthly MI Premiums due under each MI Policy from payments
received (or Advances made) on account of interest due on the related Mortgage
Loan; and
(xiii) to
make
an Advance with respect to a Mortgage Loan that is Delinquent from funds
held in
the Collection Account as contemplated by Section 5.25, provided that the
amount
withdrawn for such an Advance is immediately deposited into the Payment
Account.
Withdrawals
made pursuant to clause (xii) shall be made on a first priority basis. In
connection with withdrawals pursuant to clauses (ii), (iii), (iv), (v) and
(vi),
the Servicer’s entitlement thereto is limited to collections or other recoveries
on the related Mortgage Loan, and the Servicer shall keep and maintain separate
accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of
justifying any withdrawal from the Collection Account pursuant to such clauses.
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