Exhibit 4.2
First Amendment to the Pooling and Servicing Agreement
EXECUTION VERSION
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XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor,
CAPMARK FINANCE INC.,
as Capmark Master Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Xxxxx Fargo Master Servicer,
NCB, FSB,
as NCB Master Servicer,
CENTERLINE SERVICING INC.,
as General Special Servicer,
NATIONAL CONSUMER COOPERATIVE BANK,
as Co-op Special Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent, Certificate Registrar and Authenticating Agent,
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee and Custodian
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FIRST AMENDMENT
Dated as of January 30, 2008
TO
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2007
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COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-IQ16
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FIRST AMENDMENT
FIRST AMENDMENT dated as of January 30, 2008 ("First Amendment") by
and among XXXXXX XXXXXXX CAPITAL I INC., as depositor (the "Depositor"), CAPMARK
FINANCE, INC., as a master servicer (the "Capmark Master Servicer"), XXXXX FARGO
BANK, NATIONAL ASSOCIATION, as a master servicer (the "Xxxxx Fargo Master
Servicer"), NCB, FSB, as a master servicer (the "NCB Master Servicer"),
CENTERLINE SERVICING INC., as a special servicer (the "General Special
Servicer"), NATIONAL CONSUMER COOPERATIVE BANK, as a special servicer (the
"Co-op Special Servicer"), XXXXX FARGO BANK, NATIONAL ASSOCIATION, as paying
agent (the "Paying Agent"), and LASALLE BANK NATIONAL ASSOCIATION, as trustee of
the Trust ("Trustee"), to the Pooling and Servicing Agreement dated as of
November 1, 2007 (the "Pooling and Servicing Agreement" or the "Agreement"), by
and among the Depositor, the Capmark Master Servicer, the Xxxxx Fargo Master
Servicer, the NCB Master Servicer, the General Special Servicer, the Co-op
Special Servicer, the Paying Agent and the Trustee.
Capitalized terms used and not otherwise defined herein shall have
the meanings set forth for such terms in the Pooling and Servicing Agreement.
RECITALS
WHEREAS, the Depositor, the Capmark Master Servicer, the Xxxxx Fargo
Master Servicer, the NCB Master Servicer, the General Special Servicer, the
Co-op Special Servicer, the Paying Agent and the Trustee desire to amend the
Pooling and Servicing Agreement;
WHEREAS, Section 15.3 of the Pooling and Servicing Agreement permits
the Agreement to be amended by the Depositor, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Paying Agent and the Trustee to (i) to
cure an ambiguity, and (ii) to cause the provisions of the Pooling and Servicing
Agreement to conform to and be consistent with the Final Prospectus Supplement;
and
NOW THEREFORE, in consideration of the mutual covenants contained
herein, the Depositor, the Capmark Master Servicer, the Xxxxx Fargo Master
Servicer, the NCB Master Servicer, the General Special Servicer, the Co-op
Special Servicer, the Paying Agent and the Trustee, hereby agree that the
Pooling and Servicing Agreement shall be amended as follows:
AMENDMENT SECTION 1.
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The definition of "Purchase Price" in Section 1.1 is hereby deleted
in its entirety and replaced by the following (changed text is marked):
"Purchase Price" means, with respect to (i) the repurchase, pursuant
to Article II of this Agreement, by the applicable Seller of a Mortgage Loan
sold by such Seller, (ii) the determination of fair value of an REO Mortgage
Loan with respect to a liquidation by a Special Servicer pursuant to Section
9.15 or (iii) the determination of fair value of a Mortgage Loan in connection
with a purchase by the Option Holder pursuant to Section 9.36 under the
circumstances described therein, a price equal to the sum of (A) 100% of the
unpaid Principal Balance of such Mortgage Loan (or, deemed Principal Balance, in
the case of an REO Mortgage Loan), plus (B) accrued but unpaid interest thereon
calculated at the Mortgage Rate to and including, the Due Date in the Collection
Period in which such purchase or liquidation occurs, plus (C) the amount of any
expenses related to such Mortgage Loan (and any Serviced Companion Loans, if
applicable) or the related REO Property (including any Servicing Advances and
Advance Interest (which have not been paid by the Mortgagor or out of Late Fees
or default interest paid by the related Mortgagor on the related Mortgage Loan
(and any Serviced Companion Loans, if applicable)) and all unpaid Special
Servicing Fees and Liquidation Fees paid or payable with respect to the Mortgage
Loan (or Serviced Loan Group, as the case may be) that are reimbursable or
payable to the applicable Master Servicer, the applicable Special Servicer, the
Paying Agent, the Trustee or the related Other Master Servicer, the related
Other Special Servicer, the related Other Trustee or the related Other Paying
Agent, plus (D) if such Mortgage Loan or REO Mortgage Loan is being repurchased
or substituted for by a Seller pursuant to the related Mortgage Loan Purchase
Agreement, all expenses reasonably incurred or to be incurred by the Primary
Servicer, the applicable Master Servicer, the applicable Special Servicer, the
Depositor, the Paying Agent or the Trustee in respect of the Material Breach or
Material Document Defect giving rise to the repurchase or substitution
obligation (and that are not otherwise included in (C) above).
AMENDMENT SECTION 2.
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The second sentence of Section 9.1(a) is hereby deleted in its
entirety and replaced by the following (changed text is marked):
Certain of the provisions of this Article IX make explicit reference
to their applicability to Mortgage Loans and the Serviced Companion Loans;
notwithstanding such explicit references, references to "Mortgage Loans"
contained in this Article IX (other than Section 9.36), unless otherwise
specified, shall be construed to refer also to the related Serviced Companion
Loan (but any other terms that are defined in Article I and used in this Article
IX shall be construed according to such definitions without regard to this
sentence).
AMENDMENT SECTION 3.
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A new Section 9.36(g) is hereby added as follows:
(g) For the avoidance of doubt, the provisions of Section 9.36 shall
not apply to the Serviced Companion Loans.
AMENDMENT SECTION 4.
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A. Limited Effect. Except as expressly amended and modified by this
First Amendment, the Pooling and Servicing Agreement shall continue to be, and
shall remain, in full force and effect in accordance with its terms.
B. Counterparts. This First Amendment may be executed by one or more
of the parties hereto on any number of separate counterparts, each of which
shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
C. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND
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 WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
(SIGNATURES COMMENCE ON THE FOLLOWING PAGE)
IN WITNESS WHEREOF, the Depositor, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Paying Agent and the Trustee have
caused their names to be signed hereto by their respective officers there unto
duly authorized, all as of the day and year first above written.
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
CAPMARK FINANCE INC.,
as Capmark Master Servicer
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Xxxxx Fargo Master Servicer
By: /s/ Xxxxxxxx Xxxxxxxxx
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Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
NCB, FSB,
as NCB Master Servicer
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
Title: Senior Vice President
CENTERLINE SERVICING INC.,
as General Special Servicer
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: CEO
NATIONAL CONSUMER COOPERATIVE BANK
as Co-op Special Servicer
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
Title: Senior Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent
By: /s/ Xxx Xxxxxxxxx
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Name: Xxx Xxxxxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 28th day of January in the year 2008, before me, the
undersigned, personally appeared Xxxxxxx Xxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her capacity, and that by his/her signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument, and that such individual made such appearance
before the undersigned in the New York (insert the city or other political
subdivision and the state or county or other place the acknowledgment was
taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxxxxxx Xxxxx
STATE OF Pennsylvania )
: ss.:
COUNTY OF Xxxxxxxxxx )
On the 28th day of January in the year 2008, before me, the
undersigned, personally appeared Xxxxxxx X. Xxxxxxx, Vice President, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he/she executed the same in his/her capacity, and that by his/her
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument, and that such individual made
such appearance before the undersigned in the Xxxxxxxxxx County (insert the city
or other political subdivision and the state or county or other place the
acknowledgment was taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxx Xxxxx
STATE OF CALIFORNIA )
: ss.:
COUNTY OF SAN FRANCISCO )
On January 28, 2008, before me, Xxxx Xxxxxx, Notary Public,
personally appeared Krisitian X.X. Xxxxxxxxx, who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon which the person acted, executed the instrument. I certify under PENALTY OF
PERJURY under the law of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
/s/ Xxxx X. Xxxxxx
STATE OF VA )
: ss.:
COUNTY OF ARLINGTON )
On the 28th day of January in the year 2008, before me, the
undersigned, personally appeared Xxxxxxxx Xxxxxxxx, SVP, personally known to me
or proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her capacity, and that by his/her signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument, and that such individual made such appearance
before the undersigned in the County of Arlington, VA (insert the city or other
political subdivision and the state or county or other place the acknowledgment
was taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxxxx Xxx Xxxxxxxx
STATE OF TEXAS )
: ss.:
COUNTY OF DALLAS )
On the 29th day of January in the year 2008, before me, the
undersigned, personally appeared Xxxxx X. Xxxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her capacity, and that by his/her signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument, and that such individual made such appearance
before the undersigned in the City of Irving, Dallas County, Texas (insert the
city or other political subdivision and the state or county or other place the
acknowledgment was taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxxx Xxxxxx
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 29th day of January in the year 2008, before me, the
undersigned, personally appeared Xxx Xxxxxxxxx, personally known to me or proved
to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he/she executed
the same in his/her capacity, and that by his/her signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument, and that such individual made such appearance before
the undersigned in the State of New York (insert the city or other political
subdivision and the state or county or other place the acknowledgment was
taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxxx X. Xxxxxx
STATE OF Illinois )
: ss.:
COUNTY OF Xxxx )
On the 28th day of January in the year 2008, Xxxxx Xxxxxxxx, a
notary public in and for said State, personally appeared, Xxxxxxxx X. Xxxxx
personally known to be the Assistant Vice President, of the LaSalle Bank
National Association, one of the entities that executed the within instrument,
and also known to me to be the person who executed it on the behalf of such
entity, and acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxxx
