Exhibit 4
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BANC OF AMERICA MORTGAGE SECURITIES, INC.,
as Depositor
BANK OF AMERICA, N.A.,
as Servicer
and
WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
AMENDMENT No. 1
Dated January 30, 2004
To
The
POOLING AND SERVICING AGREEMENT
Dated April 24, 2003
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Mortgage Pass-Through Certificates
Series 2003-D
AMENDMENT No. 1, dated January 30, 2004, (the "Amendment"), to the
Pooling and Servicing Agreement dated April 24, 2003 (the "Agreement") among
BANC OF AMERICA MORTGAGE SECURITIES, INC., as depositor (the "Depositor"), BANK
OF AMERICA, N.A., as servicer (the "Servicer") and WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, 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 make any
other provisions with respect to matters or questions arising under the
Agreement which shall not be materially inconsistent with the provisions of this
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 the Agreement also provides, among other
things, that the Depositor, the Servicer and the Trustee may amend the
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
the 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
the 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 the 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 "Class SES
Compensating Interest" is hereby replaced in its entirety with the following:
Class SES Compensating Interest: With respect to each Distribution
Date, the least of (a) the amount distributable pursuant to Section 5.02(a)(i)
on the Class SES Components (before any reduction in respect of Class SES
Compensating Interest), (b) the Prepayment Interest Shortfall for such
Distribution Date less the Servicer Compensating Interest for such Distribution
Date and (c) one-twelfth of 0.25% of the aggregate Pool Stated Principal Balance
of all Loan Groups less the Servicer Compensating Interest for such Distribution
Date.
Section 2. Amendment of Section 1.01. The definition of "Class SES
Distributable Amount" is hereby deleted in its entirety.
Section 3. Amendment of Section 1.01. The definition of "Lower-Tier
REMIC" is hereby replaced in its entirety with the following:
Lower-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account (other than the Ancillary Income and
amounts held in respect of the Upper-Tier Certificate Sub-Account), the
insurance policies, if any, relating to a Mortgage Loan and property which
secured a Mortgage Loan and which has been acquired by foreclosure or deed in
lieu of foreclosure.
Section 4. 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, the least of (a) the aggregate Servicing Fee for such Distribution Date
(before giving effect to any reduction pursuant to Section 3.17), (b) the
Prepayment Interest Shortfall for such Distribution Date and (c) one-twelfth of
0.25% of the Pool Stated Principal Balances of the Loan Groups.
Section 5. Amendment of Section 3.11(a)(viii). Section 3.11(a)(viii)
is hereby replaced in its entirety with the following:
(viii) on or prior to the Remittance Date, to withdraw an amount
equal to the related Pool Distribution Amount (less, (a) at the Servicer's
option, but only for so long as Bank of America is the Servicer and Bank of
America or an affiliate is the sole Holder of the Class SES Certificates, an
amount up to 1/12th of 0.325% per annum for Loan Group 1 and 0.200% per annum
for Loan Group 2 and Loan Group 3 of the Stated Principal Balance of the
Mortgage Loans in the related Loan Group on the Due Date in the month preceding
the month of such Distribution Date, which amount shall be withdrawn on the
related Distribution Date and remitted to the Holders of the Class SES
Certificates on behalf of the Trustee in respect of the Component Interest
Distribution Amounts of the Class SES Components on such Distribution Date and
(b) at the Servicer's option, but only for so long as Bank of America is the
Servicer and Bank of America or an affiliate is the sole Holder of the Class WIO
Certificates, an amount up to the sum of the Component Interest Distribution
Amounts for the Class WIO Components for the related Distribution Date, which
amount shall be withdrawn on the related Distribution Date and remitted to the
Holders of the Class WIO Certificates on behalf of the Trustee), any Ancillary
Income (provided, however, if Bank of America is the Servicer and Bank of
America or an affiliate is the sole Holder of the Class SES Certificates, such
Ancillary Income, at the Servicer's option, need not be remitted to the Trustee
but shall be withdrawn on the related Distribution Date and remitted to the
Holders of the Class SES Certificates on behalf of the Trustee), the related
Trustee Fee and any other amounts due to the Trustee under this Agreement for
such Distribution Date, to the extent on deposit, and remit such amount in
immediately available funds to the Trustee for deposit in the Certificate
Account; and
Section 6. 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 for such Distribution Date shall be reduced (but not below
zero) by an amount equal to the Servicer Compensating Interest for such
Distribution Date. 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 7. Amendment of Section 5.02. The fourth paragraph following
Section 5.02(a)(vi) is hereby replaced in its entirety with the following:
On each Distribution Date, the Trustee, subject to Section 5.01,
shall distribute to the Holders of the Class SES Certificates, any Ancillary
Income, which shall be treated as paid outside the Lower-Tier REMIC and the
Upper-Tier REMIC.
Section 8. Amendment of Section 5.04(a)(xvi). Section 5.04(a)(xvi)
is hereby replaced in its entirety with the following:
(xvi) the Ancillary Income for each Class SES Component for such
Distribution Date; and
Section 9. 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 10. 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 11. 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/ Judy Lowman
---------------------------------------
Name: Judy Lowman
Title: Vice President
BANK OF AMERICA, N.A.,
as Servicer
By: /s/ Stephen A. Cummings
---------------------------------------
Name: Stephen A. Cummings
Title: Senior Vice President
WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By: /s/ Peter A. Gobell
---------------------------------------
Name: Peter A. Gobell
Title: Vice President
Attest:
By: /s/ Chris Regnier
-----------------------------
Name: Chris Regnier
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 Judy Lowman, 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.
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Notary Public
[NOTARIAL SEAL]
My commission expires ____________.
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On this 30th day of January, 2004, before me, a notary public in and
for the State of North Carolina, personally appeared Stephen A. Cummings, 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 HOWARD )
On this 30th day of January, 2004, before me, a notary public in and
for the State of Maryland, personally appeared Peter A. Gobell, known to me who,
being by me duly sworn, did depose and say that he is a Vice President of Wells
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 said association.
-------------------------
Notary Public
[NOTARIAL SEAL]
My commission expires ____________.