AMENDMENT NO. 1 Dated as of February 24, 2017 to AMENDMENT NO. 1 TO POOLING AND SERVICING AGREEMENT between WELLS FARGO COMMERCIAL MORTGAGE SECURITIES, INC., as Depositor, WELLS FARGO BANK, NATIONAL ASSOCIATION, as General Master Servicer CWCAPITAL...

Exhibit 4.1

AMENDMENT NO. 1

Dated as of February 24, 2017

to

AMENDMENT NO. 1 TO
POOLING AND SERVICING AGREEMENT

between

XXXXX FARGO COMMERCIAL MORTGAGE SECURITIES, INC.,
as Depositor,

XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as General Master Servicer

CWCAPITAL ASSET MANAGEMENT LLC,
as General Special Servicer

NATIONAL COOPERATIVE BANK, N.A.,
as NCB Master Servicer

NATIONAL COOPERATIVE BANK, N.A.,
as NCB Special Servicer

XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Administrator

WILMINGTON TRUST, NATIONAL ASSOCIATION

as Trustee

and

PENTALPHA SURVEILLANCE LLC,
as Operating Advisor and as Asset Representations Reviewer

XXXXX FARGO COMMERCIAL MORTGAGE TRUST 2016-C35,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2016-C35

AMENDMENT NO. 1, dated as of February 24, 2017 (this “Amendment”), between Xxxxx Fargo Commercial Mortgage Securities, Inc., as depositor (the “Depositor”), Xxxxx Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), CWCapital Asset Management LLC, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer (the “NCB Master Servicer), National Cooperative Bank, N.A., as NCB special servicer (the “NCB Special Servicer), Xxxxx Fargo Bank, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”), Wilmington Trust, National Association, as trustee (the “Trustee”), and Pentalpha Surveillance LLC, as operating advisor (in such capacity, the “Operating Advisor”) and as asset representations reviewer (in such capacity, the “ Asset Representations Reviewer”), to the Pooling and Servicing Agreement, dated as of July 1, 2016 (the “Agreement”), between the Depositor, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Certificate Administrator, the Trustee, the Asset Representations Reviewer and the Operating Advisor relating to Xxxxx Fargo Commercial Mortgage Trust 2016-C35, Commercial Mortgage Pass-Through Certificates, Series 2016-C35.

RECITALS

A.      The Depositor desires that Schedule 3 to the Agreement be amended to address a manifest error therein.

B.      Section 13.01(a) of the Agreement provides that the Agreement may be amended from time to time by the agreement of the Depositor, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor and the Asset Representations Reviewer, without the consent of any of the Certificateholders, among other things, to correct any defect or ambiguity in the Agreement in order to address any manifest error in any provision of the Agreement; provided no such amendment may change in any manner any defined term used in any Mortgage Loan Purchase Agreement or the obligations or rights of any Mortgage Loan Seller under any Mortgage Loan Purchase Agreement or otherwise or change any rights of any Mortgage Loan Seller as a third party beneficiary under the Agreement, without the consent of such Mortgage Loan Seller; and provided, further, that no such amendment may materially and adversely affect the holder of a Companion Loan without such Companion Holder’s consent.

C.      Section 13.01(c) of the Agreement provides that none of the Operating Advisor, the Asset Representations Reviewer, the Trustee, the Certificate Administrator, the Depositor, the General Master Servicer, the General Special Servicer, the NCB Master Servicer or the NCB Special Servicer shall consent to any amendment to the Agreement unless it shall first have obtained or been furnished with an Opinion of Counsel to the effect that such amendment is permitted under the Agreement, that all conditions precedent have been satisfied and that such amendment or the exercise of any power granted to the applicable Master Servicer, the applicable Special Servicer, the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or any other specified person in accordance with such amendment will not result in the imposition of a tax on any portion of the Trust Fund or any Trust REMIC, or cause any Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust under the relevant provisions of the

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Code. Furthermore, no amendment to the Agreement may be made that changes any provision specifically required to be included in the Agreement by (i) any Non-Serviced Intercreditor Agreement, (ii) the Kroger (Xxxxxx’x) Distribution Center Intercreditor Agreement, (iii) the Mall at Turtle Creek Intercreditor Agreement or (iv) the Pinnacle II Intercreditor Agreement (prior to the related Servicing Shift Securitization Date), without in each case the consent of the holder of the related Companion Loan(s).

D.      The Opinion of Counsel required by the Agreement has been delivered to the Operating Advisor, the Asset Representations Reviewer, the Trustee, the Certificate Administrator, the Depositor, the General Master Servicer, the General Special Servicer, the NCB Master Servicer and the NCB Special Servicer.

NOW, THEREFORE, the parties hereto agree as follows:

Section 1.       Defined Terms.

For purposes of this Amendment, unless the context clearly requires otherwise, all capitalized terms that are used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement.

Section 2.       Amendment.

Effective as of the date of this Amendment, the following changes are made to the Agreement.

(a)      The Mortgage Loan identified as “University Towers Owners Corp.” in the Mortgage Loan Schedule is hereby removed from the list of Mortgage Loan(s) on Schedule 3 to the Agreement.

(b)      Any and all references to “Schedule 3” in the Agreement shall refer to Schedule 3 as modified herein.

Section 3.      Effect of Amendment.

Upon execution of this Amendment, the Agreement shall be, and be deemed to be, amended in accordance herewith, and the respective rights, limitations, obligations, duties, liabilities and immunities of the Certificate Administrator, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Trustee, the Operating Advisor and the Asset Representations Reviewer, shall hereafter be determined, exercised and enforced subject in all respects to such amendments, and all the terms and conditions of this Amendment shall be, and be deemed to be, part of the terms and conditions of the Agreement for any and all purposes. 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.

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Section 4.       Binding Effect.

The provisions of this Amendment shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto, and all such provisions shall be binding upon and inure to the benefit of the Certificateholders.

Section 5.       Governing Law; Waiver of Trial by Jury.

THIS AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AMENDMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AMENDMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AMENDMENT.

EACH OF THE PARTIES HERETO IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AMENDMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES UNDER THE AGREEMENT.

THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 6.       Severability of Provisions.

If any one or more of the agreements, provisions or terms of this Amendment shall be for any reason whatsoever held invalid, then such provisions or terms shall be deemed severable from the remaining provisions or terms of this Amendment and shall in no way affect the validity or enforceability of the other provisions or terms of this Amendment.

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Section 7.       Section Headings.

The section headings herein are for convenience of reference only, and shall not limit or otherwise affect the meaning hereof.

Section 8.       Counterparts.

This Amendment may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment in Portable Document Format (PDF) or by facsimile transmission shall be as effective as delivery of a manually executed original counterpart of this Amendment.

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IN WITNESS WHEREOF, the Depositor, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor and the Asset Representations Reviewer have caused this Amendment to be duly executed by their respective officers thereunto duly authorized, all as of the day and year first above written.

	XXXXX FARGO COMMERCIAL MORTGAGE SECURITIES, INC., Depositor
	By:	/s/ Xxxxxxx Xxxxxx
		Name:  Xxxxxxx Xxxxxx
		Title:    President
	XXXXX FARGO BANK, NATIONAL ASSOCIATION, General Master Servicer
	By:	/s/ Xxxxxx Xxxxxx
		Name:  Xxxxxx Xxxxxx
		Title:    Director
	CWCAPITAL ASSET MANAGEMENT LLC, General Special Servicer
	By:	/s/ Xxxxx Xxxxxx
		Name:  Xxxxx Xxxxxx
		Title:    Managing Director
	NATIONAL COOPERATIVE BANK, N.A., NCB Master Servicer
	By:	/s/ Xxxxxxxx Xxxxx
		Name:  Xxxxxxxx Xxxxx
		Title:    COO
	NATIONAL COOPERATIVE BANK, N.A., NCB Special Servicer
	By:	/s/ Xxxxxxxx Xxxxx
		Name:  Xxxxxxxx Xxxxx
		Title:    SVP

WFCM 2016-C35 – Amendment No. 1 to Pooling and Servicing Agreement

	XXXXX FARGO BANK, NATIONAL ASSOCIATION, Certificate Administrator
	By:	/s/ Xxxxxxxxx Xxxxxx
		Name:  Xxxxxxxxx Xxxxxx
		Title:    Vice President
	WILMINGTON TRUST, NATIONAL ASSOCIATION, Trustee
	By:	/s/ Xxxxxxx X. Xxxxxx
		Name:  Xxxxxxx X. Xxxxxx Title:    Assistant Vice President
	PENTALPHA SURVEILLANCE LLC, Operating Advisor and Asset Representations Reviewer
	By:	/s/ Xxxxx Xxxxxxxx
		Name:  Xxxxx Xxxxxxxx Title:    Executive Director and solely as Authorized Signatory

WFCM 2016-C35 – Amendment No. 1 to Pooling and Servicing Agreement