AMENDMENT TO THE POOLING AND SERVICING AGREEMENTS
Exhibit
4.2
AMENDMENT
TO
THE
Amendment,
dated as of November 1, 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 7.02(a).
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In
Section 7.02(a) of each Agreement, the following sentence shall be added
as the
third to last sentence of such section:
“In
accordance with any successor Servicer not being liable for any acts or
omissions of any predecessor Servicer, the Servicing Defaults set forth in
subsections 7.01(a)(v), 7.01(a)(vi) and 7.01(a)(vii) shall apply to a successor
Servicer that succeeds to the servicing of the Mortgage Loans pursuant to
this
Agreement including, without limitation, Sections 3.28, 6.02, 6.04, 7.01
or 7.02
herein, only in the event of any withdrawal or downgrade by two or more levels
(i.e., from "Above Average" to "Below Average" or the equivalent) of such
successor Servicer’s rating as of the date of such succession, that results in a
downgrade, qualification or withdrawal of the rating assigned to any Class
of
Certificates by any Rating Agency.”
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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2.
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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 as of the date hereof.
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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3.
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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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4.
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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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5.
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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 7.02]
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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