EXHIBIT 4
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BANC OF AMERICA MORTGAGE SECURITIES, INC.,
as Depositor
BANK OF AMERICA, N.A.,
as Servicer
and
XXXXX FARGO BANK, N.A.,
as Trustee
AMENDMENT No. 1
Dated December 10, 2004
To
POOLING AND SERVICING AGREEMENT
Dated June 28, 2004
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Mortgage Pass-Through Certificates
Series 2004-6
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AMENDMENT No. 1, dated December 10, 2004, (the "Amendment"), to the
Pooling and Servicing Agreement dated June 28, 2004 (the "Agreement") among BANC
OF AMERICA MORTGAGE SECURITIES, INC., as depositor (the "Depositor"), BANK OF
AMERICA, N.A., as servicer (the "Servicer") and XXXXX FARGO BANK, N.A., as
trustee (the "Trustee").
WHEREAS, Section 11.01 of the Agreement provides, among other
things, that the Depositor, the Servicer and the Trustee may amend the
Agreement, without the consent of any of the Certificateholders, to cure any
ambiguity or mistake;
WHEREAS, it was the intent of the Depositor or its agent to
structure the Class 2-A-2, Class 2-A-3, Class 2-A-4, Class 2-A-5, Class 2-A-6
and Class 2-A-7 Certificates as set forth in this Amendment instead of as
Certificates that are pari passu as to Realized Losses after the applicable
Senior Credit Support Depletion Date and such Certificates were in fact
structured and marketed in accordance with the Depositor's (or its agent's)
intent;
WHEREAS, notwithstanding the Depositor's intent, the Agreement
mistakenly provides for pari passu allocation of Realized Losses among such
Classes;
WHEREAS, the Depositor, the Servicer and the Trustee desire to amend
the Agreement, as set forth in this Amendment to cure such mistake; and
WHEREAS, notwithstanding that this Amendment may be entered into
without the consent of any of the Certificateholders, the holder of 100% of the
Class 2-A-7 Certificates has consented to this Amendment.
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 the 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 to Section 1.01.
(a) The following definitions are hereby amended to read in their
entirety as follows:
Class Certificate Balance: With respect to any Class (other than the
Class A-PO and Class 30-IO Certificates) and any date of determination, and
subject to Section 5.03(f), the Initial Class Certificate Balance of such Class
(plus, in the case of the Class 1-A-3 and Class 1-A-9 Certificates, any Class
1-A-3 Accrual Distribution Amounts or Class 1-A-9 Accrual Distribution Amounts,
as applicable, previously added thereto) minus the sum of (i) all distributions
of principal made with respect thereto (including in the case of a Class of
Class B Certificates, any principal otherwise payable to such Class of Class B
Certificates used to pay any Class A-PO Deferred Amounts), (ii) all reductions
in Class Certificate Balance previously allocated thereto pursuant to Section
5.03(b) and (iii) in the case of the Class 1-A-10 and Class 2-A-7 Certificates
(and in the case of the Class 2-A-6 Certificates after the Class Certificate
Balance of the Class 2-A-7 Certificates has been reduced to zero), any reduction
allocated thereto pursuant to Section 5.03(e), and plus the sum of (i) all
increases in Class Certificate Balance previously allocated thereto pursuant to
Section 5.03(b) and (ii) in the case of the Class 1-A-10 and Class 2-A-7
Certificates (and the Class 2-A-6 Certificates after the Class Certificate
Balance of the Class 2-A-7 Certificates has been reduced to zero), any increases
allocated thereto pursuant to Section 5.03(e). The Class 30-IO Certificates are
Interest-Only Certificates and have no Class Certificate Balance. The Class
Certificate Balance of the Class A-PO Certificates as of any date of
determination shall equal the sum of the Component Balances of the Class A-PO
Components.
(b) The following definitions are hereby added to read in their
entirety as follows:
Class 2-A-2 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date for Group 2, the amount, if any, by
which the Class Certificate Balance of the Class 2-A-2 Certificates would be
reduced as a result of the allocation of any reduction pursuant to Section
5.03(b) to such Class, without regard to the operation of Section 5.03(e).
Class 2-A-3 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date for Group 2, the amount, if any, by
which the Class Certificate Balance of the Class 2-A-3 Certificates would be
reduced as a result of the allocation of any reduction pursuant to Section
5.03(b) to such Class, without regard to the operation of Section 5.03(e).
Class 2-A-4 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date for Group 2, the amount, if any, by
which the Class Certificate Balance of the Class 2-A-4 Certificates would be
reduced as a result of the allocation of any reduction pursuant to Section
5.03(b) to such Class, without regard to the operation of Section 5.03(e).
Class 2-A-5 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date for Group 2, the amount, if any, by
which the Class Certificate Balance of the Class 2-A-5 Certificates would be
reduced as a result of the allocation of any reduction pursuant to Section
5.03(b) to such Class, without regard to the operation of Section 5.03(e).
Class 2-A-6 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date for Group 2, the amount, if any, by
which the Class Certificate Balance of the Class 2-A-6 Certificates would be
reduced as a result of the allocation of any reduction pursuant to Section
5.03(b) to such Class, without regard to the operation of Section 5.03(e).
Class 2-A-7 Loss Allocation Amount: With respect to any Distribution
Date after the Senior Credit Support Depletion Date for Group 2, the lesser of
(a) the Class Certificate Balance of the Class 2-A-7 Certificates with respect
to such Distribution Date prior to any reduction for the Class 2-A-7 Loss
Allocation Amount and (b) the Group 2 Loss Amount with respect to such
Distribution Date.
Group 2 Loss Amount: The sum of the Class 2-A-1 Loss Amount, Class
2-A-2 Loss Amount, Class 2-A-3 Loss Amount, Class 2-A-4 Loss Amount, Class 2-A-5
Loss Amount and Class 2-A-6 Loss Amount.
Section 2. Amendment of Section 5.03. Section 5.03(e) is hereby
amended by replacing the last two paragraphs with the following:
After the Senior Credit Support Depletion Date for Group 2 and prior
to the date on which the Class Certificate Balance of the Class 2-A-7
Certificates has been reduced to zero, on any Distribution Date on which the
Class 2-A-7 Loss Allocation Amount is greater than zero, the Class Certificate
Balance of the Class 2-A-7 Certificates will be reduced by the Class 2-A-7 Loss
Allocation Amount and, notwithstanding Section 5.03(b), the Class Certificate
Balance of the Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 2-A-4, Class 2-A-5
and Class 2-A-6 Certificates will not be reduced by their pro rata share of the
Class 2-A-7 Loss Allocation Amount (based on their respective portions of the
Group 2 Loss Amount). Notwithstanding the foregoing, on any Distribution Date in
which the Group 2 Loss Amount exceeds the Class Certificate Balance of the Class
2-A-7 Certificates prior to any reduction for the Class 2-A-7 Loss Allocation
Amount, such excess will be allocated, pro rata, based on their respective
portions of the Group 2 Loss Amount, in reduction of the Class Certificate
Balances of the Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 2-A-4, Class 2-A-5
and Class 2-A-6 Certificates. After the Senior Credit Support Depletion Date for
Group 2 and after the Class Certificate Balance of the Class 2-A-7 Certificates
has been reduced to zero, on any Distribution Date on which the Class 2-A-6 Loss
Allocation Amount is greater than zero, the Class Certificate Balance of the
Class 2-A-6 Certificates will be reduced by the Class 2-A-6 Loss Allocation
Amount and, notwithstanding Section 5.03(b), the Class Certificate Balance of
the Class 2-A-1 Certificates will not be reduced by the Class 2-A-6 Loss
Allocation Amount.
Any increase in the Class Certificate Balance allocated to the Class
2-A-1, Class 2-A-2, Class 2-A-3, Class 2-A-4, Class 2-A-5 and Class 2-A-6
Certificates pursuant to Section 5.03(b) will instead increase the Class
Certificate Balance of the Class 2-A-7 Certificates. After the Class Certificate
Balance of the Class 2-A-7 Certificates has been decreased to zero, any increase
in the Class Certificate Balance allocated to the Class 2-A-1 Certificates
pursuant to Section 5.03(b) will instead increase the Class Certificate Balance
of the Class 2-A-6 Certificates.
Section 3. Amendment to Exhibits. The Agreement is hereby amended by
deleting Exhibits A-2-A-6 and A-2-A-7 of the Agreement in their entirety and
replacing them with the exhibits attached hereto as Exhibits 1 and 2.
Section 4. 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 5. Ratification of Agreement. Except as modified and
expressly amended by this Amendment, the 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 6. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT APPLICATION OF THE
CONFLICTS OF LAWS PROVISIONS THEREOF, 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:
--------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
as Servicer
By:
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
XXXXX FARGO BANK, N. A.,
as Trustee
By:
--------------------------------
Name: Xxxxxxxxxxx Xxxxxxx
Title: Vice President
STATE OF GEORGIA )
) ss.:
COUNTY OF )
On this ___th day of December, 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 ___th day of December, 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 ___th day of December, 2004, before me, a notary public in
and for the State of Maryland, personally appeared Xxxxxxxxxxx Xxxxxxx, known to
me who, being by me duly sworn, did depose and say that he is a Vice President
of Xxxxx Fargo Bank, 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 ____________.
EXHIBIT 1
EXHIBIT A-2-A-6
[FORM OF FACE OF CLASS 2-A-6 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2004-6
Class 2-A-6
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
AFTER THE SENIOR CREDIT SUPPORT DEPLETION DATE FOR GROUP 2 AND AFTER THE CLASS
2-A-7 CERTIFICATE BALANCE HAS BEEN REDUCED TO ZERO, THE PRINCIPAL PORTION OF
REALIZED LOSSES ALLOCATED TO THE CLASS 2-A-1 CERTIFICATES WILL BE BORNE BY THE
CLASS 2-A-6 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2004-6
Class 2-A-6
evidencing an interest in a Trust consisting primarily of two loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: June 1, 2004
First Distribution Date: July 26, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,235,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05949A KF 6
ISIN No.: US05949AKF65
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated June 28, 2004 (the "Pooling and Servicing
Agreement"), among the Depositor, Bank of America, N.A., as servicer (the
"Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT 2
EXHIBIT A-2-A-7
[FORM OF FACE OF CLASS 2-A-7 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2004-6
Class 2-A-7
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
AFTER THE SENIOR CREDIT SUPPORT DEPLETION DATE FOR GROUP 2, THE PRINCIPAL
PORTION OF REALIZED LOSSES ALLOCATED TO THE CLASS 2-A-1, CLASS 2-A-2, CLASS
2-A-3, CLASS 2-A-4, CLASS 2-A-5 AND CLASS 2-A-6 CERTIFICATES WILL BE BORNE BY
THE CLASS 2-A-7 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2004-6
Class 2-A-7
evidencing an interest in a Trust consisting primarily of two loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: June 1, 2004
First Distribution Date: July 26, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,942,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05949A KG 4
ISIN No.: US05949AKG49
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated June 28, 2004 (the "Pooling and Servicing
Agreement"), among the Depositor, Bank of America, N.A., as servicer (the
"Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
