Exhibit 10.4(B)
GLOBAL AMENDMENT
TO SALE AND SERVICING AGREEMENTS
(GMAC Mortgage Corporation)
This Global Amendment (this "Amendment") dated as of September 1, 2005, by
and among BANC OF AMERICA MORTGAGE CAPITAL CORPORATION, a North Carolina
corporation (the "Initial Owner"), GMAC MORTGAGE CORPORATION, a Pennsylvania
corporation (the "Company"), and BANK OF AMERICA, NATIONAL ASSOCIATION, a
national banking association (the "Assignee") amends each of the sale and
servicing agreements listed on Schedule I attached hereto (the "Agreements"),
each by and between the parties set forth in Schedule I.
W I T N E S S E T H
WHEREAS, pursuant to various Assignment, Assumption and Recognition
Agreements executed by the parties hereto from time to time, the Initial Owner
has previously assigned its interest in certain of the Agreements as such relate
to certain pools of Mortgage Loans to the Assignee; and
WHEREAS, the Company, the Initial Owner and the Assignee have agreed,
subject to the terms and conditions of this Amendment, that each of the
Agreements be amended to reflect certain agreed upon revisions to the terms
thereof.
NOW, THEREFORE, in consideration of the mutual premises and mutual
obligations set forth herein and other good and valuable consideration:
1. The Company, the Initial Owner and the Assignee hereby agree the Agreements
are amended to assign, transfer and set over all of the Initial Owner's
right, title and interest to and under the Agreements to the Assignee and
to remove the Initial Owner as a party thereto and furthermore, that the
Agreements are amended by deleting any occurrence of "Banc of America
Mortgage Capital Corporation" and replacing it with "Bank of America,
National Association."
2. The Initial Owner hereby assigns, transfers and sets over to the Assignee
all of its right, title and interest in, to and under the Agreements (other
than the rights of the Initial Owner to indemnification thereunder), and
the Assignee hereby assumes all of the Initial Owner's obligations and
duties under the Agreements from and after the date hereof, and the Company
hereby acknowledges such assignment and assumption and hereby agrees to the
release of the Initial Owner from any obligations or duties under the
Agreements from and after the date hereof. Notwithstanding the foregoing,
it is understood that the Company is not released from liability to the
Initial Owner for any breaches of any representations and warranties by the
Company made in the Agreements prior to the date hereof regardless of when
such breaches are discovered or made known. Notwithstanding anything to the
contrary herein or otherwise, it is understood that the Initial Owner is
not released from liability to the Company for any breaches of any
representations, warranties and covenants by the Initial Owner made in and
pursuant to the Agreements prior to the date hereof regardless of when such
breaches are discovered or made known.
3. The Company, the Initial Owner and the Assignee hereby agree that the
definition of "Pass-Through Transfer" in Article I of each of the
Agreements is amended by deleting such definition in its entirety and
replacing it with the following:
"Either (i) the sale or transfer of some or all of the Mortgage Loans
by the Initial Owner to a trust to be formed as part of a publicly
issued or privately placed mortgage-backed securities transaction or
(ii) a synthetic securitization in which some or all of the Mortgage
Loans are included as part of the reference portfolio relating to such
securitization."
4. The Company, the Initial Owner and the Assignee hereby agree that Section
3.02 of the Flow Agreement (as defined in Schedule I attached hereto) is
hereby amended by inserting the following as new subsections therein (to be
effective as of September 15, 2005):
"(xlv) No Mortgage Loan is a "High Cost Loan" or a "Covered Loan," as
applicable (as such terms are defined in the then current Standard &
Poor's LEVELS Glossary, which is now Version 5.6c Revised);
(xlvi) No Mortgage Loan originated on or after August 1, 2004 requires
the related Mortgagor to submit to arbitration to resolve any dispute
arising out of or relating in any way to the Mortgage Loan
transaction;
(xlvii) No Mortgage Loan is a high cost loan under the predatory
lending law of any jurisdiction in which the related Mortgaged
Property is located; and
(xlviii) No Mortgage Loan originated on or after October 1, 2002
through and including March 6, 2003 is governed by the Georgia Fair
Lending Act;
5. The Company, the Initial Owner and the Assignee hereby agree that Section
5.02 of each of the Agreements is amended by deleting in their entirety the
first two paragraphs thereof and by replacing such paragraphs with the
following:
"Not later than the third (3rd) Business Day of each month, the
Company shall furnish to the Owner, with respect to the preceding
month, a monthly collection report, a monthly paid in full report that
summarizes Mortgage Loans paid in full during the related Due Period
and a monthly trial balance report that provides a trial balance as of
the last day of the month preceding such Remittance Date in electronic
format agreed upon by the Company and the Owner.
2
Not later than the fifth (5th) Business Day of the month of
the related Remittance Date, the Company shall deliver to the
Owner a delinquency report and a monthly remittance statement in
the form of, and providing the information described in, Exhibit
I hereto and a mutually agreed upon electronic format."
6. The Company, the Initial Owner and the Assignee hereby agree that Article V
of each of the Agreements is amended by inserting the following as Section
5.05 therein (and the Table of Contents is amended accordingly):
"Section 5.05 Automated Servicing Systems.
The Company shall set up, format, maintain and transmit to
the Owner the Company's mortgage servicer file and other
electronic data storage and transmission systems related to the
Mortgage Loans (collectively, the "Servicing Systems") in
accordance with the guidelines and requirements set forth in
Exhibit I attached hereto (the "Servicer Requirements"), and the
Company shall cooperate with the Owner to receive data from the
Owner that is to be incorporated in the Servicing Systems in
accordance with the System Requirements."
7. The Company, the Initial Owner and the Assignee hereby agree that Section
7.01 of each of the Agreements is amended by inserting the following as the
new second paragraph therein:
"Upon reasonable request from the Owner, the Company shall
deliver no later than thirty (30) days after such request any
Mortgage File or document therein, or copies thereof, to the
Owner at the direction and expense of the Owner. The Owner shall
return any originals of documents delivered pursuant to this
Section no later than ten (10) days after receipt thereof. If the
Company fails to furnish copies of any Mortgage File or document
therein, and if the related Mortgaged Property becomes REO
Property, the Company shall indemnify the Owner for losses
incurred by the Owner with respect to such Mortgage Loan to the
extent such losses are directly attributable to the Company's
failure to provide the related Mortgage File or document copy
requested by the Owner."
8. The Company, the Initial Owner and the Assignee hereby agree that each of
the Agreements is amended by inserting at the end thereof new Exhibit I,
substantially in the form of Exhibit A hereto (and updating the table of
exhibits accordingly).
Upon execution of this Amendment, each Agreement as it relates to Mortgage
Loans sold to the Initial Owner by the Company prior to the date hereof and
owned by the Assignee as of the date hereof will be read to contain the above
amendments, except the amendment set forth in Section 4 above, and the Flow
Agreement, as it relates to Mortgage Loans sold pursuant to Assignment and
Conveyances executed on or after the date hereof, will be read to contain all of
the above amendments. Any future reference to each and any Agreement will mean
such Agreement as so modified. The parties hereto acknowledge that the
Agreements have not been modified or amended, except as otherwise expressly
described or provided for herein.
3
This Amendment shall be construed in accordance with the laws of the State
of New York, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
This Amendment may be executed in one or more counterparts and by different
parties hereto on separate counterparts, each of which, when so executed, shall
constitute one and the same agreement.
With respect to the Agreements, this Amendment shall inure to the benefit
of and be binding upon the Initial Owner, the Assignee and the Company under the
Agreements, and their respective successors and permitted assigns.
Any capitalized term, not otherwise herein defined, shall have the meaning
set forth in the Agreements.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
4
IN WITNESS WHEREOF, the parties have caused their names to be signed hereto
by their respective officers thereunto duly authorized as of the day and year
first above written.
BANC OF AMERICA MORTGAGE CAPITAL CORPORATION, as Initial
Owner
By: /s/ Xxxxx X. Good
--------------------------------------------------
Name: Xxxxx X. Good
Title: Vice President
BANK OF AMERICA, NATIONAL ASSOCIATION, as Assignee
By: /s/ Xxxxx X. Good
--------------------------------------------------
Name: Xxxxx X. Good
Title: Vice President
GMAC MORTGAGE CORPORATION, as Company
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
------------------------------------------------
Title: Vice President
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[Signature Page to Global Amendment to Sale and Servicing Agreements]
EXHIBIT A
SERVICER REQUIREMENTS
o Loading/Updating Investor Headers
1. Assignee will provide investor matrix for input on Servicing Systems,
if applicable. Updates/additions will occur monthly, including new
investor header detail for each new deal that is settled.
2. The Company, acting as servicer (the "Servicer"), will load investor
information upon receipt or before month end for inclusion on the next
month-end file to Assignee.
3. The Servicer will include the investor information on the monthly
servicer file ("MSF") and the monetary file ("MF").
o Loading Account Numbers
1. Upon receipt of a funding schedule, Assignee will deliver a cross
reference of Servicer-to-Assignee account numbers within 24 hours (or
same day, if last day of the month). The account numbers will be
delivered in an electronic format that is agreed upon.
2. The Servicer will load account numbers upon receipt or before month
end to ensure inclusion with the next month-end files to Assignee.
o Automated Monetary Transaction File
1. The Servicer will establish a process to feed a MSF to Assignee that
contains loan information specified in the MSF layout provided.
2. The feed will include all new loans purchased in the previous month,
as well as a maintenance file for all existing loans in the Assignee
portfolio.
3. The file will cut-off at month-end, including any changes or
transactions that occur on the last day of the month.
4. The file will be transmitted from the Servicer to the specified
mailbox at Assignee.
5. Assignee will receive and process the electronic file on the first
business day of the month for the previous month-end file.
6. The Servicer will provide an email providing file details for
balancing.
o MSF -- Ongoing Process
1. The Servicer will establish a process to feed a MSF to Assignee that
contains loan information specified in the MSF layout provided.
2. The feed will include all new loans purchased in the previous month,
as well as a maintenance file for all existing loans in the Assignee
portfolio.
3. The file will cut-off at month-end, including any changes or
transactions that occur on the last day of the month.
4. The file will be transmitted from the Servicer to the specified
mailbox at Assignee.
5. Assignee will receive and process the electronic file on the first
business day of the month for the previous month-end file.
6. The Servicer will provide an email providing file details for
balancing.
o MSF -- Test File
For testing purposes, Assignee requests a sample file that represents the MSF.
1. The Servicer will load/update investor header information received
from Assignee.
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2. Assignee will receive and process the file on the first business day
of the month for the previous month-end file.
3. The Servicer will provide an email providing file details for
balancing.
o Reporting Requirements
The Servicer will provide the following reports to Assignee by the 5th business
day of the month, unless otherwise specified. Reports will be provided in an
electronic format, unless otherwise specified. The reports listed below are
required for the Assignee's project; reports in addition to these may also be
required.
The description of these reports is as follows:
o Collection Report - Report that summarizes the collections made during the
reporting period.
o Paid In Full Report - Report that summarizes paid in full loans made during
the reporting period.
o Trial Balance Report - Monthly statement of mortgage accounts or a trial
balance as of the cutoff date.
o Scheduled Remittance Reports - The Servicer sends on a monthly basis. We
would like this report by the 5th business day.
o Delinquency Report - Report from the Servicer to be sent by the 5th
business day. Assignee would like this report sent via e-mail or fax.
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SCHEDULE I
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1. Sale and Servicing Agreement dated February 1, 2003, by and among Banc of
America Mortgage Capital Corporation, Xxxxxx Funding LLC and GMAC Mortgage
Corporation, as amended by Amendment No. 1 to Sale and Servicing Agreement,
dated April 1, 2003
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2. Sale and Servicing Agreement dated April 1, 2003, by and among Banc of
America Mortgage Capital Corporation, Xxxxxx Funding LLC and GMAC Mortgage
Corporation, as amended by Amendment No. 1 to Sale and Servicing Agreement,
dated April 1, 2003
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3. Sale and Servicing Agreement dated May 1, 2003, by and among Banc of
America Mortgage Capital Corporation, Xxxxxx Funding LLC and GMAC Mortgage
Corporation
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4. Sale and Servicing Agreement dated June 1, 2003, by and between Banc of
America Mortgage Capital Corporation and GMAC Mortgage Corporation
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5. Master Flow Sale and Servicing Agreement (the "Flow Agreement") dated
August 1, 2003, by and between Banc of America Mortgage Capital Corporation
and GMAC Mortgage Corporation
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