EXHIBIT 4
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BANC OF AMERICA FUNDING CORPORATION,
as Depositor
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Servicer
XXXXX FARGO BANK, N.A.,
as Servicer
XXXXX FARGO BANK, N.A.,
as Securities Administrator
and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Trustee
AMENDMENT No. 1
Dated December 20, 2004
To
POOLING AND SERVICING AGREEMENT
Dated August 27, 2004
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Mortgage Pass-Through Certificates
Series 2004-A
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AMENDMENT No. 1, dated December 20, 2004, (the "Amendment"), to the
Pooling and Servicing Agreement, dated August 27, 2004 (the "Agreement"), among
BANC OF AMERICA FUNDING CORPORATION, as Depositor, BANK OF AMERICA, NATIONAL
ASSOCIATION, as a Servicer, XXXXX FARGO BANK, N.A., as a Servicer, XXXXX FARGO
BANK, N.A., as Securities Administrator, and WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee.
WHEREAS, Section 11.01 of the Agreement provides, among other
things, that the parties to the Agreement 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 parties to allow for modification,
waiver, forbearance or amendment of any term of any Mortgage Loan by a Servicer
as set forth in Section 3.21(b)(i) through (iii) of the Agreement; provided, (A)
any such Mortgage Loan was 90 days or more past due or (B) such Servicer
delivers to the Trustee and the Securities Administrator an Opinion of Counsel
to the effect that such modification, waiver, forbearance or amendment would not
affect the REMIC status of the Upper-Tier REMIC or Lower-Tier REMIC and, in
either case, such modification, waiver, forbearance or amendment is reasonably
likely, in the related Servicer's judgment, to produce a greater recovery with
respect to such Mortgage Loan than would liquidation;
WHEREAS, notwithstanding the parties' intent, the Agreement
mistakenly prohibits the modification, waiver, forbearance or amendment of any
term of any Mortgage Loan by a Servicer that affects the amount or timing of any
related payment of principal, interest or other amount payable thereunder; and
WHEREAS, the Depositor, the Servicers, the Securities Administrator
and the Trustee desire to amend the Agreement as set forth in this Amendment to
cure such mistake;
NOW THEREFORE, in consideration of the mutual agreements herein
contained, the Depositor, the Servicers, the Securities Administrator 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 3.21(b).
Section 3.21(b) is hereby replaced in its entirety with the
following:
(b) A Servicer shall not agree to enter into, and shall not enter
into, any modification, waiver (other than a waiver referred to in Section 3.13,
which waiver, if any, shall be governed by Section 3.13), forbearance or
amendment of any term of any Mortgage Loan if such modification, waiver,
forbearance, or amendment would:
(i) affect the amount or timing of any related payment of
principal, interest or other amount payable thereunder;
(ii) in such Servicer's judgment, materially impair the
security for such Mortgage Loan or reduce the likelihood of timely payment
of amounts due thereon; or
(iii) otherwise constitute a "significant modification" within
the meaning of Treasury Regulations Section 1.860G-2(b);
unless (A) such Mortgage Loan is 90 days or more past due or (B) such Servicer
delivers to the Trustee and the Securities Administrator an Opinion of Counsel
to the effect that such modification, waiver, forbearance or amendment would not
affect the REMIC status of the Upper-Tier REMIC or Lower-Tier REMIC and, in
either case, such modification, waiver, forbearance or amendment is reasonably
likely, in the related Servicer's judgment, to produce a greater recovery with
respect to such Mortgage Loan than would liquidation. Subject to Customary
Servicing Procedures, either Servicer may permit a forbearance for a Mortgage
Loan serviced by such Servicer which in such Servicer's judgment is subject to
imminent default.
Section 2. 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 3. 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 4. 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 Servicers, the Securities
Administrator 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 FUNDING CORPORATION,
as Depositor
By:
--------------------------------
Name:
Title:
BANK OF AMERICA, NATIONAL ASSOCIATION,
as a Servicer
By:
--------------------------------
Name:
Title:
XXXXX FARGO BANK, N. A.,
as a Servicer
By:
--------------------------------
Name:
Title:
XXXXX FARGO BANK, N. A.,
as Securities Administrator
By:
--------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
Name:
Title:
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On this 20th day of December, 2004, before me, a notary public in
and for the State of North Carolina, personally appeared ,
known to me who, being by me duly sworn, did depose and say that he is a Senior
Vice President of Banc of America Funding Corporation, a Delaware corporation,
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 corporation.
-------------------------
Notary Public
[NOTARIAL SEAL]
My commission expires ____________.
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 20th day of December 2004, before me, a notary public in and
for the State of North Carolina, personally appeared ______________, known to me
who, being by me duly sworn, did depose and say that he is the 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 )
) ss.:
COUNTY OF )
)
On the 20th day of December, before me, a notary public in and for
the State of __________, personally appeared ___________, 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 ____________.
STATE OF )
) ss.:
COUNTY OF )
)
On the 20th day of December, before me, a notary public in and for
the State of __________, personally appeared ___________, 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 ____________.
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG)
On this 20th day of December, 2004, before me, a notary public in
and for the State of North Carolina, personally appeared
, known to me who, being by me duly sworn, did depose
and say that he is a Vice President of Wachovia Bank, 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 ____________.
