EXECUTION COPY
AMENDMENT NO. 1
TO MASTER SELLER'S WARRANTIES AND SERVICING AGREEMENT
(NATIONAL CITY MORTGAGE CO.)
This Amendment No. 1 (this "Amendment") dated as of July 1, 2004, by and
among BANC OF AMERICA MORTGAGE CAPITAL CORPORATION, a North Carolina corporation
(the "Initial Owner"), NATIONAL CITY MORTGAGE CO., an Ohio corporation (the
"Company"), and BANK OF AMERICA, N.A., a national banking association (the
"Assignee"), amends the Master Seller's Warranties and Servicing Agreement (the
"Agreement"), dated September 1, 2003, by and between the Initial Owner and the
Company.
W I T N E S S E T H
WHEREAS, pursuant to an Assignment, Assumption and Recognition Agreement
executed by the parties on September 15, 2003, the Initial Owner has previously
assigned its interest in the Agreement as such relate to a certain pool 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 the Agreement 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 that the
definition of "Pass-Through Transfer" in Article I of the Agreement 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 Purchaser 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."
2. The Company, the Initial Owner and the Assignee hereby agree that Section
8.01 of the Agreement is amended by inserting the following as the new
second paragraph therein:
"Upon request from the Purchaser, the Company shall deliver no
later than thirty (30) days after such request any Mortgage File or
document therein, or copies thereof, to the Purchaser at the
direction of the Purchaser. The Purchaser shall return any originals
of documents delivered pursuant to this Section no later than ten
(10) days after receipt thereof. In the event that the Company fails
to make delivery of the requested Mortgage File or document
therein, or copies thereof, as required under this Section, the
Company shall repurchase, pursuant to Section 3.03 of this
Agreement, the related Mortgage Loan within sixty (60) days of
receipt of a request to do so by the Purchaser."
Upon execution of this Amendment, the 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 and as it relates to Mortgage Loans
sold pursuant to Assignment and Conveyances executed on or after the date hereof
will be read to contain the above amendments. Any future reference to the
Agreement will mean the Agreement as so modified. The parties hereto acknowledge
that the Agreement has not been modified or amended, except as otherwise
expressly described or provided for herein.
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 Agreement, this Amendment shall inure to the benefit
of and be binding upon the Initial Owner, the Assignee and the Company under the
Agreement, and their respective successors and permitted assigns.
Any capitalized term, not otherwise herein defined, shall have the meaning
set forth in the Agreement.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
2
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/ ▇▇▇▇▇ ▇. Good
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Name: ▇▇▇▇▇ ▇. Good
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Title: Vice President
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BANK OF AMERICA, N.A., as Assignee
By: /s/ ▇▇▇▇▇ ▇. Good
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Name: ▇▇▇▇▇ ▇. Good
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Title: Vice President
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NATIONAL CITY MORTGAGE CO., as Company
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Senior Vice President
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[Signature Page to Amendment No. 1 to Master Seller's Warranties and Servicing
Agreement]