AMENDMENT TO THE POOLING AND SERVICING AGREEMENTS
Exhibit
4.1
AMENDMENT
TO
THE
Amendment,
dated as of October 31, 2007 (the “Amendment”),
to
the Pooling and Servicing Agreements (the “Agreements”)
listed
on Schedule I hereto, each among NovaStar Mortgage Funding Corporation (the
“Company”
or
the
“Depositor”,
as
applicable), NovaStar Mortgage, Inc., as seller or sponsor and servicer (the
“Sponsor”
and
“Servicer”),
U.S.
Bank National Association, as certificate administrator or custodian, as
applicable (the “Custodian”),
and
The Bank of New York, as trustee (the “Trustee”)
and as
co trustee (the “Co-Trustee”)
as
applicable. Capitalized terms used and not defined herein shall have the
meaning
set forth in the Agreements and Appendix A thereto.
WHEREAS,
the parties hereto have entered into the Agreements;
WHEREAS,
the purpose of this Amendment is to cure certain ambiguities in the wording
of
each Agreement.
NOW,
THEREFORE, in consideration of the promises and mutual agreements contained
herein, the parties hereto agree to amend the Agreements pursuant to Section
12.01 thereof as follows:
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1.
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Revised
Section 3.07(a).
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Section
3.07(a) of each Agreement is hereby amended so as to read as set forth in
Exhibit A hereto with respect to the related Agreement, with the exception
that
(a) for the Agreements dated prior to 2006, (i) the term “Sponsor” shall be
replaced by the term “Seller” and (ii) the section reference in Section 3.07
(a)(xiii)shall be to “Section 3.24” rather than to “Section 3.25” and (b) for
the Agreement listed as number (1.) on Schedule I hereto, Section 3.07(a)(vi)
shall read in its entirety as follows:
“(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 3.13 in good faith
in
connection with the restoration of the related Mortgaged Property which was
damaged by the uninsured cause or in connection with the liquidation of such
Mortgage Loan;”
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2.
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Condition to Effectiveness. |
As
a
condition to the effectiveness of this Amendment, an Opinion of Counsel
satisfying the requirements of Section 12.01 of each Agreement has been received
by the parties hereto, and the written consent of the Class A-1 Insurer has
been
obtained with respect only to the Pooling and Servicing Agreement identified
in
item 7 on the attached Schedule I.
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3.
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Effect
of Amendment.
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This
Amendment to the Agreements shall be effective and the Agreements shall be
deemed to be modified and amended in accordance herewith retroactively to
the
original dates of each related Agreement. The respective rights, limitations,
obligations, duties, liabilities and immunities of the Company, the Sponsor,
the
Servicer, the Custodian 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 Agreements for any and all purposes. The
Agreements, as amended hereby, are hereby ratified and confirmed in all
respects.
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4.
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The
Agreements in Full Force and Effect as Amended.
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Except
as
specifically amended hereby, all the terms and conditions of the Agreements
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 Agreements.
All references to the Agreements in any other document or instrument shall
be
deemed to mean the Agreements as amended by this Amendment.
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5.
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Counterparts.
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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.
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6.
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Governing
Law.
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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.
2
IN
WITNESS WHEREOF, the Sponsor, the Servicer, the Depositor, the 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.
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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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NOVASTAR
MORTGAGE FUNDING CORPORATION,
as
Depositor
By: /s/
Xxxx Xxxxxxxxxxxx
Name: Xxxx
Xxxxxxxxxxxx
Title: Vice
President
NOVASTAR
MORTGAGE, INC.,
as
Servicer and as Sponsor
By: /s/
Xxxx Xxxxxxxxxxxx
Name: Xxxx
Xxxxxxxxxxxx
Title: Vice
President
U.S.
BANK NATIONAL ASSOCIATION, as Custodian
By: /s/
Xxxxxxx Rhode
Name:
Xxxxxxx Rhode
Title:
Assistant Vice President
THE
BANK OF NEW YORK,
not in its individual capacity but solely as 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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[Signature
Page for Omnibus Amendment to the Pooling and Servicing Agreements - Section
3.07]
Schedule
I
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1.
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Pooling
and Servicing Agreement dated as of September 1, 2002, among NOVASTAR
MORTGAGE FUNDING CORPORATION, as company, NOVASTAR MORTGAGE, INC.,
as
servicer and as seller, U.S. BANK NATIONAL ASSOCIATION (as successor
to
WACHOVIA BANK, NATIONAL ASSOCIATION), as certificate administrator
and THE
BANK OF NEW YORK (as successor to JPMORGAN CHASE BANK), as
trustee.
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2.
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Pooling
and Servicing Agreement dated as of February 1, 2003, among NOVASTAR
MORTGAGE FUNDING CORPORATION, as company, NOVASTAR MORTGAGE, INC.,
as
servicer and as seller, U.S. BANK NATIONAL ASSOCIATION (as successor
to
WACHOVIA BANK, NATIONAL ASSOCIATION), as custodian and THE BANK
OF NEW
YORK (as successor to JPMORGAN CHASE BANK), as
trustee.
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3.
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Pooling
and Servicing Agreement dated as of June 1, 2003, among NOVASTAR
MORTGAGE
FUNDING CORPORATION, as company, NOVASTAR MORTGAGE, INC., as servicer
and
as seller, U.S. BANK NATIONAL ASSOCIATION (as successor to WACHOVIA
BANK,
NATIONAL ASSOCIATION), as custodian and THE BANK OF NEW YORK (as
successor
to JPMORGAN CHASE BANK), as
trustee.
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4.
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Pooling
and Servicing Agreement dated as of September 1, 2003, among NOVASTAR
MORTGAGE FUNDING CORPORATION, as company, NOVASTAR MORTGAGE, INC.,
as
servicer and as seller, U.S. BANK NATIONAL ASSOCIATION (as successor
to
WACHOVIA BANK, NATIONAL ASSOCIATION), as custodian and THE BANK
OF NEW
YORK (as successor to JPMORGAN CHASE BANK), as
trustee.
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5.
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Pooling
and Servicing Agreement dated as of November 1, 2003, among NOVASTAR
MORTGAGE FUNDING CORPORATION, as company, NOVASTAR MORTGAGE, INC.,
as
servicer and as seller, U.S. BANK NATIONAL ASSOCIATION (as successor
to
WACHOVIA BANK, NATIONAL ASSOCIATION), as custodian and THE BANK
OF NEW
YORK (as successor to JPMORGAN CHASE BANK), as
trustee.
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6.
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Pooling
and Servicing Agreement dated as of March 1, 2004, among NOVASTAR
MORTGAGE
FUNDING CORPORATION, as company, NOVASTAR MORTGAGE, INC., as servicer
and
as seller, U.S. BANK NATIONAL ASSOCIATION (as successor to WACHOVIA
BANK,
NATIONAL ASSOCIATION), as custodian and THE BANK OF NEW YORK (as
successor
to JPMORGAN CHASE BANK), as
trustee.
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7.
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Pooling
and Servicing Agreement dated as of June 1, 2004, among NOVASTAR
MORTGAGE
FUNDING CORPORATION, as company, NOVASTAR MORTGAGE, INC., as servicer
and
as seller, U.S. BANK NATIONAL ASSOCIATION (as successor to WACHOVIA
BANK,
NATIONAL ASSOCIATION), as custodian and THE BANK OF NEW YORK (as
successor
to JPMORGAN CHASE BANK), as
trustee.
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8.
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Pooling
and Servicing Agreement dated as of September 1, 2004, among NOVASTAR
MORTGAGE FUNDING CORPORATION, as company, NOVASTAR MORTGAGE, INC.,
as
servicer and as seller, U.S. BANK NATIONAL ASSOCIATION (as successor
to
WACHOVIA BANK, NATIONAL ASSOCIATION), as custodian and THE BANK
OF NEW
YORK (as successor to JPMORGAN CHASE BANK), as
trustee.
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9.
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Pooling
and Servicing Agreement dated as of November 1, 2004, among NOVASTAR
MORTGAGE FUNDING CORPORATION, as company, NOVASTAR MORTGAGE, INC.,
as
servicer and as seller, U.S. BANK NATIONAL ASSOCIATION (as successor
to
WACHOVIA BANK, NATIONAL ASSOCIATION), as custodian and THE BANK
OF NEW
YORK (as successor to JPMORGAN CHASE BANK, NATIONAL ASSOCIATION)
as
trustee.
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10.
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Pooling
and Servicing Agreement dated as of February 1, 2005, among NOVASTAR
MORTGAGE FUNDING CORPORATION, as company, NOVASTAR MORTGAGE, INC.,
as
servicer and as seller, U.S. BANK NATIONAL ASSOCIATION (as successor
to
WACHOVIA BANK, NATIONAL ASSOCIATION), as custodian, THE BANK OF
NEW YORK
(as successor to JPMORGAN CHASE BANK, NATIONAL ASSOCIATION), as
trustee
and THE BANK OF NEW YORK (as successor to X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION), as
co-trustee.
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11.
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Pooling
and Servicing Agreement dated as of May 1, 2005, among NOVASTAR
MORTGAGE
FUNDING CORPORATION, as company, NOVASTAR MORTGAGE, INC., as servicer
and
as seller, U.S. BANK NATIONAL ASSOCIATION (as successor to WACHOVIA
BANK,
NATIONAL ASSOCIATION), as custodian, THE BANK OF NEW YORK (as successor
to
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION), as trustee and THE
BANK OF NEW
YORK (as successor to X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION),
as
co-trustee.
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12.
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Pooling
and Servicing Agreement dated as of September 1, 2005, among NOVASTAR
MORTGAGE FUNDING CORPORATION, as company, NOVASTAR MORTGAGE, INC.,
as
servicer and as seller, U.S. BANK NATIONAL ASSOCIATION (as successor
to
WACHOVIA BANK, NATIONAL ASSOCIATION), as custodian, THE BANK OF
NEW YORK
(as successor to JPMORGAN CHASE BANK, NATIONAL ASSOCIATION), as
trustee
and THE BANK OF NEW YORK (as successor to X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION), as
co-trustee.
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13.
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Pooling
and Servicing Agreement dated as of December 1, 2005, among NOVASTAR
MORTGAGE FUNDING CORPORATION, as company, NOVASTAR MORTGAGE, INC.,
as
servicer and as seller, U.S. BANK NATIONAL ASSOCIATION (as successor
to
WACHOVIA BANK, NATIONAL ASSOCIATION), as custodian, THE BANK OF
NEW YORK
(as successor to JPMORGAN CHASE BANK, NATIONAL ASSOCIATION), as
trustee
and THE BANK OF NEW YORK (as successor to X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION), as
co-trustee.
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14.
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Pooling
and Servicing Agreement dated as of June 1, 2006, among NOVASTAR
MORTGAGE
FUNDING CORPORATION, as depositor, NOVASTAR MORTGAGE, INC., as
servicer
and as sponsor, U.S. BANK NATIONAL ASSOCIATION, as custodian, THE
BANK OF
NEW YORK (as successor to JPMORGAN CHASE BANK, NATIONAL ASSOCIATION),
as
trustee and THE BANK OF NEW YORK (as successor to X.X. XXXXXX TRUST
COMPANY, NATIONAL ASSOCIATION), as
co-trustee.
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15.
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Pooling
and Servicing Agreement dated as of June 1, 2006, among NOVASTAR
MORTGAGE
FUNDING CORPORATION, as depositor, NOVASTAR MORTGAGE, INC., as
servicer
and as sponsor, U.S. BANK NATIONAL ASSOCIATION, as custodian, THE
BANK OF
NEW YORK (as successor to JPMORGAN CHASE BANK, NATIONAL ASSOCIATION),
as
trustee and THE BANK OF NEW YORK (as successor to X.X. XXXXXX TRUST
COMPANY, NATIONAL ASSOCIATION), as
co-trustee.
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Exhibit
A
Amended
Section 3.07
Section
3.07 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 3.06
that
are attributable to the Mortgage Loans for the following purposes (without
duplication):
(i) to
deposit in the Distribution Account, by the Servicer Remittance Date prior
to
each Distribution Date, all collections on the Mortgage Loans required to
be
distributed from the Distribution Account on a Distribution 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 3.11, or Liquidation Expenses, paid pursuant
to
Section 3.13, 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 3.15, an amount equal to the related Servicing Fee
(to
the extent not retained pursuant to Section 3.06);
(iv) to
pay to
itself or the Sponsor, with respect to any Mortgage Loan or property acquired
in
respect thereof that has been purchased by the Sponsor, the Servicer or other
entity, all amounts received thereon and not required to be distributed to
Certificateholders 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 3.13: (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;
(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
3.07(a);
(viii) to
withdraw any other amount deposited in the Collection Account that was not
required to be deposited therein pursuant to Section 3.06;
(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 3.13(c);
(x) to
clear
and terminate the Collection Account upon a termination pursuant to Section
11.01;
(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 3.25, provided that the
amount
withdrawn for such an Advance is immediately deposited into the Distribution
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.
