Exhibit 4
BANC OF AMERICA MORTGAGE SECURITIES, INC.,
as Depositor
BANK OF AMERICA, N.A.,
as Servicer
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
AMENDMENT No. 1
Dated January 30, 2004
To
The
POOLING AND SERVICING AGREEMENTS
listed on Schedule I hereto
Mortgage Pass-Through Certificates
Series 2003-5 and Series 2003-6
AMENDMENT No. 1, dated January 30, 2004, (the "Amendment"), to each
Pooling and Servicing Agreement listed on Schedule I hereto (each, an
"Agreement") each among BANC OF AMERICA MORTGAGE SECURITIES, INC., as depositor
(the "Depositor"), BANK OF AMERICA, N.A., as servicer (the "Servicer") and XXXXX
FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as trustee (the "Trustee").
WHEREAS, Section 11.01 of each Agreement provides, among other
things, that the Depositor, the Servicer and the Trustee may amend such
Agreement, without the consent of any of the Certificateholders, to make any
other provisions with respect to matters or questions arising under such
Agreement which shall not be materially inconsistent with the provisions of such
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder.
WHEREAS, Section 11.01 of each Agreement also provides, among other
things, that the Depositor, the Servicer and the Trustee may amend such
Agreement, subject to certain provisos, with the consent of the Holders of
Certificates evidencing Percentage Interests aggregating not less than 66-2/3%
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
such Agreement or modifying in any manner the rights of the Holders of
Certificates of such Class.
WHEREAS, the Depositor, the Servicer and the Trustee desire to amend
each Agreement, as set forth in this Amendment, and have obtained the consent of
the Holder of 100% Percentage Interest of the Class SES Certificates and the
Opinions of Counsel required by Section 11.01 of each Agreement, including the
Opinion of Counsel referred to in the first WHEREAS clause herein relating to
the effect of such amendments on the other Certificateholders.
NOW THEREFORE, in consideration of the mutual agreements herein
contained, the Depositor, the Servicer and the Trustee agree as follows:
All terms used in this Amendment which are defined in each
Agreement, either directly or by reference therein, have the meanings assigned
to them therein, except to the extent such terms are defined or modified in this
Amendment or the context clearly requires otherwise.
Section 1. Amendment of Section 1.01. The definition of "Servicer
Compensating Interest" is hereby replaced in its entirety with the following:
Servicer Compensating Interest: With respect to each Distribution
Date and each Loan Group, the least of (a) the aggregate Servicing Fee for such
Distribution Date relating to such Loan Group (before giving effect to any
reduction pursuant to Section 3.17), (b) the Prepayment Interest Shortfall for
such Distribution Date and such Loan Group and (c) one-twelfth of 0.25% of the
Pool Stated Principal Balance of such Loan Group.
Section 2. Amendment of Section 3.17. Section 3.17 is hereby
replaced in its entirety with the following:
Section 3.17 Servicing Compensation. The Servicer shall be entitled
out of each payment of interest on a Mortgage Loan (or portion thereof) and
included in the Trust Estate to retain or withdraw from the Servicer Custodial
Account an amount equal to the Servicing Fee for such Distribution Date;
provided, however, that the aggregate Servicing Fee for the Servicer relating to
the Mortgage Loans in a Loan Group for such Distribution Date shall be reduced
(but not below zero) by an amount equal to the Servicer Compensating Interest.
Any successor Servicer shall also be entitled to the Supplemental Servicing Fee.
Any additional Servicing Compensation shall be retained by the
Servicer to the extent not required to be deposited in the Servicer Custodial
Account pursuant to Section 3.08(b). The Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement therefor except as specifically
provided in this Agreement.
Section 3. Counterparts. This Amendment may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one and the
same instrument.
Section 4. Ratification of Agreement. Except as modified and
expressly amended by this Amendment, each 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 5. Governing Law. This Amendment shall be construed in
accordance with the laws of the State of New York (without regard to conflicts
of laws principles), and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized, all as of the day and year first above written.
BANC OF AMERICA MORTGAGE SECURITIES, INC.,
as Depositor
By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
as Servicer
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Attest:
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
STATE OF GEORGIA )
) ss.:
COUNTY OF FORSYTH )
On this 30th day of January, 2004, before me, a notary public in and
for the State of Georgia, personally appeared Xxxx Xxxxxx, known to me who,
being by me duly sworn, did depose and say that she is a Vice President of Banc
of America Mortgage Securities, Inc., a Delaware corporation, one of the parties
that executed the foregoing instrument; and that she signed her name thereto by
order of the Board of Directors of said corporation.
-----------------------------
Notary Public
[NOTARIAL SEAL]
My commission expires ____________
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 30th day of January, 2004, before me, a notary public in and
for the State of North Carolina, personally appeared Xxxxxxx X. Xxxxxxxx, known
to me who, being by me duly sworn, did depose and say that he is the Senior Vice
President of Bank of America, N.A., a national banking association, one of the
parties that executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of such association.
-----------------------------
Notary Public
[NOTARIAL SEAL]
My commission expires ____________
STATE OF MARYLAND )
) ss.:
COUNTY OF XXXXXX )
On the 30th day of January, 2004, before me, a notary public in and
for the State of Maryland, personally appeared Xxxxx X. Xxxxxx, known to me who,
being by me duly sworn, did depose and say that he is a Vice President of Xxxxx
Fargo Bank Minnesota, National Association, a national banking association, one
of the parties that executed the foregoing instrument; and that he signed his
name thereto by order of the Board of Directors of such association.
-----------------------------
Notary Public
[NOTARIAL SEAL]
My commission expires ____________
Schedule I
Amendment
No. Date Series Parties
--- ---- ------ -------
1 24-Jun-03 0000-0 Xxxx xx Xxxxxxx Mortgage Securities, Inc.
(Depositor)
Bank of America, N.A. (Servicer)
Xxxxx Fargo Bank Minnesota, National Association
(Trustee)
1 24-Jul-03 2003-6 Banc of America Mortgage Securities, Inc.
(Depositor)
Bank of America, N.A. (Servicer)
Xxxxx Fargo Bank Minnesota, National Association
(Trustee)
