Exhibit
4.1
AMENDMENT NO.
1
TO THE
POOLING AND SERVICING
AGREEMENTS
Amendment No. 1, dated as of April 24, 2007 (the
“ Amendment ”), to the Pooling and Servicing
Agreements (the “ Agreements ”) listed on
Schedule I hereto, each among NovaStar Mortgage Funding Corporation
(the “ Depositor ”), NovaStar Mortgage, Inc., as
sponsor and servicer (the “ Sponsor ” or “
Servicer ”), U.S. Bank National Association, as
custodian (the “ Custodian ”), and Deutsche Bank
National Trust Company, as trustee (the “ Trustee
”). 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 4.04(c) .
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Section 4.04(c)
of each Agreement is hereby amended so as to read as set forth in
Exhibit A hereto with respect to the related Agreement.
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2.
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Revised
Definition of “Non-Derivative Supplemental Interest
Payment” .
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The definition
of the term “Non-Derivative Supplemental Interest
Payment” is hereby amended so as to read as set forth in
Exhibit B hereto with respect to the related Agreement
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3.
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Revised
Section (g) footnote (2) to Exhibit J for 2006-4
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With regard to
the first Agreement on the attached Schedule I only, Section (g)
footnote (2) is hereby amended and restated in its entirety as
follows:
“The
Class M-7 DSI Certificates, the Class M-10 DSI Certificates, the
Class M-11 DSI Certificates and the Class M-12 DSI Certificates do
not represent regular interests in the Master REMIC or any other
REMIC created under the Pooling and Servicing
Agreement.”
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4.
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Condition to
Effectiveness .
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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.
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, is hereby ratified and
confirmed in all respects.
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6.
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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.
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.
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.
IN WITNESS WHEREOF, the Sponsor, the Servicer,
the Depositor, the 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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NEWPORT FUNDING
CORP. hereby consents to the foregoing Amendment:
By: /s/ Doris J. Hearn
Name: Doris J. Hearn
Title: Vice President
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC., hereby consents to the foregoing
Amendment:
By: /s/ Ara Balabanian
Name: Ara Balabanian
Title: Vice President
WACHOVIA
INVESTMENT HOLDINGS, LLC hereby consents to the foregoing
Amendment:
By: /s/ Andrew W. Riebe
Name: Andrew W. Riebe
Title: Director
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NOVASTAR
MORTGAGE FUNDING CORPORATION,
as
Depositor
By: /s/ Matt Kaltenrieder
Name: Matt Kaltenrieder
Title: Vice President
NOVASTAR
MORTGAGE, INC.,
as Servicer and
as Sponsor
By: /s/ Matt Kaltenrieder
Name: Matt Kaltenrieder
Title: Vice President
U.S. BANK
NATIONAL ASSOCIATION, as Custodian
By: /s/ Sheryl Johnson
Name: Sheryl Johnson
Title: Vice President
DEUTSCHE BANK
NATIONAL TRUST COMPANY,
as
Trustee
By: /s/ Mei Nghla
Name: Mei Nghla
Title: Authorized Signer
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[Signature Page for Amendment No. 1
to the 2006-4, 2006-5 and 2006-6 Pooling and Servicing
Agreements]
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ASPEN FUNDING
CORP. hereby consents to the foregoing Amendment:
By: /s/ Doris J. Hearn
Name: Doris J. Hearn
Title: Vice President
DEUTSCHE BANK
SECURITIES INC. hereby consents to the foregoing
Amendment:
By: /s/ Brian W. Haklisch
Name: Brian W. Haklisch
Title: Vice President
By: /s/ Michael Ciuffo
Name: Michael Ciuffo
Title: Director
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[Signature Page for Amendment No. 1
to the 2006-4, 2006-5 and 2006-6 Pooling and Servicing
Agreements]
Schedule I
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1.
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Pooling and
Servicing Agreement, dated as of August 1, 2006, by and among
NovaStar Mortgage Funding Corporation, as Depositor, NovaStar
Mortgage, Inc., as Servicer and as Sponsor, U.S. Bank National
Association, as Custodian and Deutsche Bank Trust Company, as
Trustee, relating to NovaStar Mortgage Funding Trust, Series
2006-4, NovaStar Home Equity Loan Asset-Backed Certificates, Series
2006-4.
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2.
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Pooling and
Servicing Agreement, dated as of September 1, 2006, by and among
NovaStar Mortgage Funding Corporation, as Depositor, NovaStar
Mortgage, Inc., as Servicer and as Sponsor, U.S. Bank National
Association, as Custodian and Deutsche Bank Trust Company, as
Trustee, relating to NovaStar Mortgage Funding Trust, Series
2006-5, NovaStar Home Equity Loan Asset-Backed Certificates, Series
2006-5.
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Pooling and
Servicing Agreement, dated as of November 1, 2006, by and among
NovaStar Mortgage Funding Corporation, as Depositor, NovaStar
Mortgage, Inc., as Servicer and as Sponsor, U.S. Bank National
Association, as Custodian and Deutsche Bank Trust Company, as
Trustee, relating to NovaStar Mortgage Funding Trust, Series
2006-6, NovaStar Home Equity Loan Asset-Backed Certificates, Series
2006-6.
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Exhibit A
Amended
Section 4.04(c)
2006-4
(c) On each
Distribution Date, the Trustee shall distribute the funds held in
the Supplemental Interest Trust as follows:
(i) first , on each Distribution Date up to and including
the Class I Termination Date, from funds other than funds relating
to Excess Cashflow, and if such funds are insufficient, any Excess
Cashflow remaining after the distributions set forth in Section
4.04(d)(i), to each Hedge Counterparty, its related Cap Amount for
such Distribution Date, and any unpaid Hedge Termination Payment
owed to a Hedge Counterparty that is not a Defaulted Hedge
Termination Payment;
(ii) second , from funds other than funds relating to Excess
Cashflow, and if such funds are insufficient, any Excess Cashflow
remaining after the distributions set forth in Section 4.04(d)(i),
and after taking into account any amounts applied pursuant to
clause (i) above, the amount necessary, if any, to eliminate any
Overcollateralization Deficiency, after taking into account any
Excess Cashflow previously applied to such purpose on such
Distribution Date;
(iii) third , any remaining amounts to pay:
(a) first , pro-rata based on the Certificate Principal
Balance of each Class of Class A Certificates, from funds other
than funds relating to Excess Ca
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