Common use of Liability and Indemnification of Servicer and Owner Clause in Contracts

Liability and Indemnification of Servicer and Owner. (a) Neither Servicer nor its Affiliates nor any of their respective members, managers, partners, shareholders, directors, officers, employees or agents (collectively, the “Servicer Parties”) shall be under any liability to Owner or any third party for taking or refraining from taking any action, pursuant to or in connection with this Agreement, or for errors in judgment; but this provision shall not protect Servicer against any liability that would otherwise be imposed on Servicer by reason of Servicer’s willful misfeasance, bad faith or negligence in the performance of its obligations under this Agreement. Each Servicer Party may conclusively rely on any document of any kind that, prima facie, is properly executed and submitted by any appropriate Person respecting any matters arising under this Agreement. (b) Each Servicer Party shall be indemnified and held harmless by Owner against any loss, liability or expense incurred (including reasonable attorneys’ fees), as and when incurred, in connection with any claim, legal action, investigation or proceeding relating to this Agreement, Servicer’s performance hereunder, or any specific action that Owner authorized or requested Servicer to perform pursuant to this Agreement, as such are incurred, except for any loss, liability or expense incurred by reason of Servicer’s willful misfeasance, bad faith, negligence in the performance of its obligations under this Agreement or a material breach of Servicer’s representations and warranties set forth in Section 7.01. Notwithstanding the exception set forth in the preceding sentence, if Servicer sustains any loss, liability or expense by reason of such exception and which results from any overcharges to Borrower under the Serviced Loan, then Owner shall, to the extent that such overcharges were collected by Servicer and remitted to Owner, promptly remit such overcharge to Borrower after Owner’s receipt of written notice from Servicer regarding such overcharge. (c) Owner and its Affiliates and any director, officer, employee or agent thereof shall be indemnified and held harmless by Servicer against any loss, liability or expense incurred (including reasonable attorneys’ fees) by reason of (i) Servicer’s willful misfeasance, bad faith or negligence in the performance of its obligations under this Agreement or (ii) a material breach of Servicer’s representations and warranties set forth in Section 7.01. (d) The provisions of this Section 6.02 shall survive any termination of the rights and obligations of Servicer hereunder.