Common use of Release of Initial Member and Others Clause in Contracts

Release of Initial Member and Others. The Servicer hereby releases and discharges each Prior Servicer from any and all claims (including any counterclaim or defensive claim), demands, causes of action, judgments or legal proceedings and remedies of whatever kind or nature that the Servicer had, has or might have in the future, whether known or unknown, which are related in any manner whatsoever to the servicing of the Loans or Underlying Collateral prior to the applicable Servicing Transfer Date by the Prior Servicers, in each case other than for acts or omissions constituting gross negligence, violation of law or willful misconduct of such Prior Servicer. Columbian Bank and Trust ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ August 22, 2008 Integrity Bank ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ August 29, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ 10013 September 5, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ October 24, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ October 31, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ November 7, 2008 Franklin Bank, SSB ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ November 7, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ November 21, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 10025 December 5, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank ▇▇▇▇▇▇▇▇▇ TX 10026 December 12, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ December 12, ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Vancouver WA 10029 January 16, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ January 23, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ January 30, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ January 30, 2009 FirstBank Financial Services ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ February 6, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ February 13, 2009 Riverside Bank of the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ February 13, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ February 20, 2009 Security Savings Bank ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ February 27, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ March 20, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ March 27, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ July 31, 2009 Multibank Structured Transaction 2009-1 CRE Servicing Agreement 60866258_8.DOC Multibank Structured Transaction 2009-1 CRE Servicing Agreement 60866258_8 Going forward, Servicer covenants that, in addition to the matters provided for in the Servicing Agreement, it will do the following, unless otherwise provided herein or otherwise designated by Manager (if Special Servicing is designated for a Loan(s) by Manager, then Servicer will perform all of the following items A through N as applicable for the Loan(s) so designated; if only Primary Servicing or Asset Preservation is designated for a Loan(s) by Manager, then all of the following items A through N as applicable will be performed by Servicer (other than A, C, D(ii), F, H(ii) and L).

Release of Initial Member and Others. The Servicer hereby releases and discharges each Prior Servicer from any and all claims (including any counterclaim or defensive claim), demands, causes of action, judgments or legal proceedings and remedies of whatever kind or nature that the Servicer had, has or might have in the future, whether known or unknown, which are related in any manner whatsoever to the servicing of the Loans or Underlying Collateral prior to the applicable Servicing Transfer Date by the Prior Servicers, in each case other than for acts or omissions constituting gross negligence, violation of law or willful misconduct of such Prior Servicer. Columbian Bank and Trust ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ August 22, 2008 Integrity Bank ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ August 29, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ 10013 September 5, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ October 24, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ October 31, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ 2008 Security Pacific Bank ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ November 7. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, 2008 Franklin Bank, SSB ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ November 7, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ November 21, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 10025 December 5, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank ▇▇▇▇▇▇▇▇▇ TX 10026 December 12, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ December 12, ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Vancouver WA 10029 January 16, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ January 23, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ January 30, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ January 30, 2009 FirstBank Financial Services ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ February 6, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ February 13, 2009 Riverside Bank of the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ February 13, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ February 20, 2009 Security Savings Bank ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ February 27, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ March 20, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ March 27, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ July 312009 Servicer will perform all duties related to the maintenance of all Loans on Servicer's loan servicing systems and will perform the servicing responsibilities specifically set forth below, 2009 Multibank Structured Transaction 2009in accordance with the Servicing Standards and subject to a more detailed responsibility matrix to be agreed upon in writing by Manager and Servicer: • Boarding of all Loans on loan servicing systems including all data (subject to such data being made available to Servicer) necessary to: o properly calculate principal and interest payments and all other amounts due and payable under the Loan Documents and invoice non-1 CRE delinquent Borrowers for payment on a monthly basis from and after the relevant Servicing Transfer Date(s). o determine the balance of amounts posted to Borrower escrow accounts as transferred from the Interim Servicers. • Record changes in principal and other outstanding balances as necessary to reflect additional Funding Advances, capitalization of advances for Borrower expenses, as permitted under the Loan Documents, modifications of amounts due pursuant to executed legal documents, partial payments or pre-payments and/or other changes or corrections as directed from time-to-time by written authorization from the Manager. • Maintain records on loan system(s) of all known Underlying Collateral that is security for the Loans being serviced. • Ensure that, within sixty (60) days of the date on which a Loan is boarded, all Uniform Commercial Code (UCC) filings required to maintain perfection in any Underlying Collateral are properly maintained. • Post payments received from Borrowers to their Loan record and apply them to outstanding balances according to the priority as set forth in the Loan Documents and in conjunction with a posting waterfall based on account delinquency as mutually agreed by Manager and Servicer. • Remit by wire transfer all Loan related non-escrow cash collections over to the Collection Account maintained by the Custodian within 2 Business Days of acceptance. • Establish escrow accounts for all Loans, the funds of which are to be disbursed, with respect to delinquent or non-performing Loans, as directed by Manager. • For non-delinquent escrowed Loans, maintain Borrower escrow accounts in sufficient amounts as deemed necessary for the payment of insurances, taxes and other amounts as required for purposes of the escrow accounts as established, including making the appropriate disbursements timely and the performance of escrow analysis to determine the timing and amount to be paid by Borrowers into the escrow accounts for prompt payment of such amounts when due. • Monitoring the maintenance of required insurances by the Borrower on any Underlying Collateral and cause to be put into place any hazard insurance that the Borrower does not have in place in sufficient amounts as required by the Loan Documents or as deemed necessary based on what is customary for the area in which the Underlying Collateral is located. • Substituting each of the Manager and the Company as a loss-payee on all Loan related insurance on the Underlying Collateral. • Obtain tax contracts on all assets (at Manager’s expense) as instructed by Manager • For Loans with tax contracts, monitor the payment of real estate taxes on all Loans and ensure prompt payment of amounts due whether paid from Borrower escrow funds or as a property protection advance. • Make timely payments for any other expense to be paid on behalf of a Borrower on any Underlying Collateral deemed a property protection advance, subject to a Manager approval process to be established by mutual agreement of the Manager and the Servicer. • Tracking on a Loan level all such expenses and disbursements made for future billing or recovery from Borrower. • Produce tax forms and send to Borrowers as required by the IRS. • Prepare in connection with Manager and send to Borrower, correspondence for the following: o Goodbye/hello letters regarding transfer of ownership and servicing o Monthly payment invoicing on non-delinquent accounts o Escrow analysis on escrowed Loans o Payoff/estoppel letters o Other standard correspondence as required to meet the Servicer obligations in this Schedule 3, as requested by Manager • Provide Loan level reporting monthly, annually and at such other times and in such form and manner as reasonably requested from time to time by Manager (in electronic as well as hard copy to the extent practical) including but not limited to: o Monthly electronic report on the Loans detailing collections, disbursements, funding advances, payoffs, modifications, write-offs and transfers of Loans to real estate owned and such other information readily available as shall be requested by the Manager. o Loan trial balance as of the end of each month providing outstanding balances for all amounts due from Borrowers including a detail of all cash transactions and other account adjustments that occurred for each Borrower during the month. • Provide inquiry access at all times by Servicer to loan servicing system(s) or equivalent for Loan and Underlying Collateral information maintained thereon. • Maintain and register such Loans on the MERS System as are required to be so maintained and registered. • Provide dedicated inbound toll-free number for Borrower inquiries and contact • Route inbound calls to the appropriate asset manager of Manager or as otherwise instructed by Manager • Provide Manager access to, and training with respect to, loan servicing, asset management and document management system(s) and, to the extent required, providing licenses to Manager related thereto. • Mutually develop process to deliver hard copy or imaged servicing files to asset managers of Manager at remote offices, or as otherwise instructed by Manager. • Manage trailing documents and capture into the imaged or hard copy servicing files • Manage all inbound tax and insurance correspondence Servicer will perform the following function as requested by Manager upon mutual agreement of fees: • Recalculate the principal balance, accrued interest, default interest, late fees and all other amounts shown as outstanding as of the Cut-Off Date based on the Loan Documents and the re-application of historical payments made by the Borrowers to date. Servicer will perform such other services and/or functions and prepare such other documentation as may be requested by Manager and accepted by Servicer and upon mutual agreement of fees for such services, which when agreed upon will be added to Schedule 2. Notwithstanding anything in the Servicing Agreement 60866258_8.DOC Multibank Structured Transaction 2009-1 CRE to the contrary, the Servicer will only be performing the services and taking the actions specifically set forth on this Schedule 3 and such other services and/or actions as shall be agreed upon in accordance with the preceding paragraph and any references in the Servicing Agreement 60866258_8 Going forward, Servicer covenants that, in addition to other services or reporting requirements with respect to such services shall not be applicable to Servicer. In the matters provided for in event of a conflict between the provisions of this Schedule 3 and the Servicing Agreement, it the limitations and restrictions set forth in this Schedule 3 shall prevail. Servicer shall have no obligation to advance any funds to pay for any expenses or obligations of any Borrower, the Company or the Manager or to pay for any Servicing Expenses, including, without limitation, any Servicer Advances, or Funding Draws. Any and all such draws, advances and expenses will do only be incurred at such time as Manager has provided the followingfunds to incur such expenses and/or to make such advances, unless otherwise provided herein or otherwise designated as otherwise, and in a manner, mutually agreed to by Manager (if Special Servicing is designated for a Loan(s) by Manager, then Servicer will perform all and Servicer. For the purposes of the following items A through N services set forth on this Schedule 3, the defined term Servicing Standards and the standard of care to be used by the Servicer in connection with Loans and/or REO Properties shall be as applicable for defined in the Loan(s) so designated; if only Primary Servicing or Asset Preservation is designated for a Loan(s) by Manager, then all Agreement without reference to the Ancillary Documents and the LLC Operating Agreement and the servicing requirements set forth therein. To the extent that the consent of the following items A through N as applicable will Manager is required in connection with the services to be performed by Servicer under this Schedule 3, it shall be given or withheld in accordance with the Servicing Standard for the Manager as defined in the LLC Operating Agreement. For purposes of clarification of Section 2.5, the Servicer shall not be deemed to have received a loan payment for deposit into the Collection Account until it has accepted such payment which Servicer shall do only if it reasonably determines that the loan payment was properly made without condition or settlement endorsement and meets all payment acceptance conditions mutually agreed upon by Manager and Servicer. The Manager agrees to indemnify and hold the Servicer and its Affiliates, principals, officers, directors, trustees, representatives, employees, agents and any Subservicers, as and to the extent permitted under the Servicing Agreement (other than Aeach a “Servicer Indemnitee” and collectively the “Servicer Indemnitees”) harmless from and against any and all claims, Closses, D(ii)costs and damages that any Servicer Indemnitee may incur or suffer in connection with (i) the Manager’s material breach or failure to act in accordance with the terms of the Servicing Agreement, F(ii) specific actions or inactions of the Servicer Indemnitee at the Manager’s express direction, H(ii(iii) the performance by the Servicer of its duties to the extent such performance is in compliance with the Servicing Agreement and L)this Schedule 3 and (iv) claims raised after the Termination of the Servicer that do not relate to Servicer Indemnitee’s acts or failure to act.