Common use of Standard of Liability Indemnification Clause in Contracts

Standard of Liability Indemnification. The Servicer shall not be liable to the Trustee, the REO Owner or the Depositor or its officers, employees, agents and directors for any actions or omissions to act in connection with the servicing of the Loans and REO Properties pursuant to this Agreement or for errors in judgment, except for actions or omissions to act of the Servicer which involve the Servicer’s fraud, gross negligence, willful misconduct, bad faith or a failure to observe or perform any or all of the Servicer’s covenants, agreements, warranties or representations contained in this Agreement. The Servicer agrees to indemnify, defend, and hold harmless, the Depositor, the Trustee, each applicable Trust, the REO Owner, their respective officers, employees, agents and directors from any liability, claim, loss, demand, action, damage, assessment, deficiency, tax, cost and expense, including reasonable attorneys’ fees, directly or indirectly resulting from or arising out of the Servicer’s fraud, gross negligence, willful misconduct, bad faith or a failure (i) to observe or perform any or all of the Servicer’s covenants, agreements, warranties or representations contained in this Agreement or (ii) to service the Loans in material compliance with the terms of this Agreement. The Servicer shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties to service the Loans and REO Properties in accordance with this Agreement and which in its opinion may involve it in any expense or liability; provided, however, that the Servicer may, with the consent (not to be unreasonably withheld) of the Trustee (at the direction of the Holder) or the Depositor and, as applicable, the REO Owner, undertake any such action which it may deem necessary or desirable in respect of this Agreement and the rights and duties of the parties hereto. In such event, or if the Servicer deems it necessary to defend any such action, the Servicer shall be entitled to reimbursement from the related Custodial Account for its reasonable legal expenses and costs of such action. In addition, the Servicer, the Trustee, the REO Owner and the Depositor and their respective directors, officers, employees and agents shall be entitled to indemnification from, and are hereby indemnified by, the related Trust for any loss, liability or expense incurred in connection with any claim, demand, action or legal proceeding arising out of, or in connection with, the acceptance or administration of the Loans including, without limitation, servicing of the related Loans, the related REO Property and the costs and expenses (including reasonable attorney’s fees) of defending themselves against any claim in connection with the exercise or performance of any of their powers or duties hereunder, except if and to the extent such loss, liability or expense results from or arises out of the fraud, negligence, willful misconduct, bad faith or a failure to perform any or all of their covenants, agreements, warranties or representations contained in this Agreement on the part of the indemnified party. Such indemnification shall include but not be limited to losses, liability or expenses resulting from or arising out of the origination, sale or prior servicing of any Loan or REO Property.

Standard of Liability Indemnification. The Servicer shall not be liable to the Trustee, the REO Owner or the Depositor or its officers, employees, agents and directors for any actions or omissions to act in connection with the servicing of the Loans and REO Properties Assets pursuant to this Agreement or for errors in judgment, except for actions or omissions to act of the Servicer which involve the Servicer’s fraud, gross negligence, willful misconduct, bad faith or a failure to observe abide by or perform comply with the Applicable Requirements. The Servicer and any director, officer, employee or all agent of the Servicer’s covenants, agreements, warranties or representations contained Servicer may rely in this Agreementgood faith on any document of any kind prima facie properly executed and submitted by any Person respecting any matters arising hereunder. The Servicer agrees to indemnify, defend, and hold harmless, the Depositor, the Trustee, each applicable Trust, the REO Owner, their respective its officers, employees, agents and directors from any liability, claim, loss, demand, action, damage, assessment, deficiencydeficiencies, taxtaxes, cost costs and expenseexpenses, including reasonable attorneys’ feesfees (“Damages”), directly or indirectly resulting from or arising out of the Servicer’s fraud, gross negligence, willful misconduct, bad faith failure to abide by or a failure (i) to observe or perform any or all of the Servicer’s covenants, agreements, warranties or representations contained in this Agreement or (ii) to service the Loans in material compliance comply with the terms of this AgreementApplicable Requirements. The Except as otherwise expressly provided herein, the Servicer shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties to service the Loans and REO Properties Assets in accordance with this Agreement and which in its opinion may involve it in any expense or liability; provided, however, that the Servicer may, with the consent (not to be unreasonably withheld) of the Trustee (at the direction of the Holder) or the Depositor and, as applicable, the REO Owner, undertake any such action which it may deem necessary or desirable in respect of this Agreement and the rights and duties of the parties hereto. In such event, or if the Servicer deems it necessary to defend any such action, the Servicer shall be entitled to reimbursement from the related Custodial Account for its reasonable legal expenses and costs of such action. In addition, the Servicer, the Trustee, the REO Owner and the Depositor and their respective directors, officers, employees and agents shall be entitled to indemnification from, and are hereby indemnified by, the related Trust for any loss, liability or expense incurred in connection with any claim, demand, action or legal proceeding arising out of, or in connection with, the acceptance or administration of the Loans including, without limitation, servicing of the related Loans, the related REO Property and the costs and expenses (including reasonable attorney’s fees) of defending themselves against any claim in connection with the exercise or performance of any of their powers or duties hereunder, except if and to the extent such loss, liability or expense results from or arises out of the fraud, negligence, willful misconduct, bad faith or a failure to perform any or all of their covenants, agreements, warranties or representations contained in this Agreement on the part of the indemnified party. Such indemnification shall include but not be limited to losses, liability or expenses resulting from or arising out of the origination, sale or prior servicing of any Loan or REO Property.

Standard of Liability Indemnification. The Servicer shall not be liable to the Trustee, the REO Owner or the Depositor Company or its successors, assigns, officers, employeesdirectors, agents and directors employees or agents, for any actions or omissions to act in connection with the servicing of the Borrower Loans and REO Properties or Securities pursuant to this Agreement or for errors in judgment, except for actions as expressly provided in Section 3.12 and in the following paragraph. The Servicer and any director, officer, employee or omissions to act agent of the Servicer which involve may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person respecting any matters arising hereunder, except to the Servicer’s fraudextent the Servicer knows that such document is false, gross negligencemisleading, willful misconduct, bad faith inaccurate or a failure to observe or perform any or all of the Servicer’s covenants, agreements, warranties or representations contained in this Agreementincomplete. The Servicer agrees to indemnify, defend, and hold harmlessthe Company and its successors, the Depositorassigns, the Trustee, each applicable Trust, the REO Owner, their respective officers, employeesdirectors, employees and agents harmless from and directors from against any liabilityand all claims, claimdamages, losslosses, demandliabilities and expenses (including, actionwithout limitation, damagereasonable fees and disbursements of counsel), assessmentjoint or several (collectively, deficiency, tax, cost and expense, including reasonable attorneys’ fees“Damages”), directly or indirectly resulting from or arising out of the Servicer’s fraud, gross negligence, willful misconduct, bad faith or a failure (i) to observe or perform any or all the failure of the Servicer’s covenants, agreements, warranties or representations contained Servicer to perform its duties in this Agreement or (ii) to service the Loans in material compliance accordance with the terms of this Agreement, (ii) the material breach of any of the Servicer’s representations, warranties, covenants or agreements contained in this Agreement including, but not limited to, confidentiality provisions, or (iii) except as otherwise provided in this Agreement, the acts or omissions of any permitted subservicer or service provider engaged by the Servicer to service the Borrower Loans or Securities as provided in Section 10.2; and (iv) infringement or misappropriation by the Servicer of any patent, copyright, trademark, servicemark, trade secret or other proprietary right of any other Person; provided, however, that the Servicer shall not be responsible for any Damages resulting from or arising out of (i) the failure of the Company to perform its duties in accordance with the terms of this Agreement (unless such failure resulted from the actions or omissions of the Servicer), (ii) the material breach of any of the Company’s representations, warranties, covenants or agreements contained in this Agreement, (iii) the origination, making, funding, sale or servicing of any Borrower Loans or Securities after the Termination Date, (iv) the absence or unavailability of any books, records, data, files and other Borrower Loan Documents or other documents evidencing or relating to a Borrower Loan, in any form, including but not limited to any documents necessary to service the Borrower Loans in accordance with Applicable Requirements, other than to the extent resulting from the actions or omissions of the Servicer, (v) compliance with any instructions of the Company to the extent that compliance with such instructions does not comply with Applicable Requirements. The Except as otherwise expressly provided herein, the Servicer shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties to manage the Prosper System and service the Borrower Loans and REO Properties in accordance with this Agreement and which in its opinion may involve it in any expense or liability; provided, however, that the Servicer may, with the consent (not to be unreasonably withheld) of the Trustee (at Company, which consent may be exercised by the direction of the Holder) or the Depositor and, as applicable, the REO OwnerCompany in its sole and exclusive discretion, undertake any such action which it may deem necessary or desirable in respect of this Agreement and the rights and duties of the parties hereto. In such event, or if the Servicer deems it necessary to defend any such action, the Servicer shall be entitled to reimbursement from the related Custodial Account Company for its reasonable legal expenses and costs of such action. In addition, the Servicer, the Trustee, the REO Owner and the Depositor and their respective directors, officers, employees and agents shall be entitled to indemnification from, and are hereby indemnified by, the related Trust for any loss, liability or expense incurred in connection with any claim, demand, action or legal proceeding arising out of, or in connection with, the acceptance or administration of the Loans including, without limitation, servicing of the related Loans, the related REO Property and the costs and expenses (including reasonable attorney’s fees) of defending themselves against any claim in connection with the exercise or performance of any of their powers or duties hereunder, except if and to the extent such loss, liability or expense results from or arises out of the fraud, negligence, willful misconduct, bad faith or a failure to perform any or all of their covenants, agreements, warranties or representations contained in this Agreement on the part of the indemnified party. Such indemnification shall include but not be limited to losses, liability or expenses resulting from or arising out of the origination, sale or prior servicing of any Loan or REO Property.

Standard of Liability Indemnification. The Servicer shall not be liable to the Trustee, the REO Owner or the Depositor or its officers, employees, agents and directors for any actions or omissions to act in connection with the servicing of the Loans and REO Properties Assets pursuant to this Agreement or for errors in judgment, except for actions or omissions to act of the Servicer which involve the Servicer’s fraud, gross negligence, willful misconduct, bad faith or a failure to observe or perform any or all of the Servicer’s covenants, agreements, warranties or representations contained in this Agreement. The Servicer and any director, officer, employee or agent of the Servicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person respecting any matters arising hereunder. The Servicer agrees to indemnify, defend, and hold harmless, the Depositor, the Trustee, each applicable Trust, the REO Owner, their respective its officers, employees, agents and directors from any liability, claim, loss, demand, action, damage, assessment, deficiency, tax, cost and expense, including reasonable attorneys’ feesDamages, directly or indirectly resulting from or arising out of (i) the Servicer’s fraud, gross negligence, negligence or willful misconduct, bad faith or a (ii) the Servicer’s failure (i) to observe or perform any or all of the Servicer’s covenants, agreements, warranties or representations contained in this Agreement Agreement, or (iiiii) the absence or unavailability of any documents evidencing or relating to an Asset, including but not limited to any documents necessary to service the Loans Assets in material compliance accordance with Applicable Requirements, to the terms extent resulting from the actions or omissions of this Agreementthe Servicer. The Except as otherwise expressly provided herein, the Servicer shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties to service the Loans and REO Properties Assets in accordance with this Agreement and which in its opinion may involve it in any expense or liability; provided, however, that the Servicer may, with the consent (not to be unreasonably withheld) of the Trustee (at the direction of the Holder) or the Depositor and, as applicable, the REO Owner, undertake any such action which it may deem necessary or desirable in respect of this Agreement and the rights and duties of the parties hereto. In such event, or if the Servicer deems it necessary to defend any such action, the Servicer shall be entitled to reimbursement from the related Custodial Account for its reasonable legal expenses and costs of such action. In addition, the Servicer, the Trustee, the REO Owner and the Depositor and their respective directors, officers, employees and agents shall be entitled to indemnification from, and are hereby indemnified by, the related Trust for any loss, liability or expense incurred in connection with any claim, demand, action or legal proceeding arising out of, or in connection with, the acceptance or administration of the Loans including, without limitation, servicing of the related Loans, the related REO Property and the costs and expenses (including reasonable attorney’s fees) of defending themselves against any claim in connection with the exercise or performance of any of their powers or duties hereunder, except if and to the extent such loss, liability or expense results from or arises out of the fraud, negligence, willful misconduct, bad faith or a failure to perform any or all of their covenants, agreements, warranties or representations contained in this Agreement on the part of the indemnified party. Such indemnification shall include but not be limited to losses, liability or expenses resulting from or arising out of the origination, sale or prior servicing of any Loan or REO Property.

Standard of Liability Indemnification. The Servicer shall not be liable to the Trustee, the REO Owner or the Depositor or its officers, employees, agents and directors for any actions or omissions to act in connection with the servicing of the Loans and REO Properties Assets pursuant to this Agreement or for errors in judgment, except for actions or omissions to act of the Servicer which involve the Servicer’s fraud, gross negligence, willful misconductmisconduct or bad faith. The Servicer and any director, bad faith officer, employee or a failure to observe or perform any or all agent of the Servicer’s covenants, agreements, warranties or representations contained Servicer may rely in this Agreementgood faith on any document of any kind prima facie properly executed and submitted by any Person respecting any matters arising hereunder. The Servicer agrees to indemnify, defend, and hold harmless, the Depositor, the Trustee, each applicable Trust, the REO Owner, their respective its officers, employees, agents and directors from any liability, claim, loss, demand, action, damage, assessment, deficiencydeficiencies, taxtaxes, cost costs and expenseexpenses, including reasonable attorneys’ feesfees (“Damages”), directly or indirectly resulting from or arising out of the Servicer’s fraud, gross negligence, willful misconductmisconduct or bad faith. Except as otherwise expressly provided herein, bad faith or a failure (i) to observe or perform any or all of the Servicer’s covenants, agreements, warranties or representations contained in this Agreement or (ii) to service the Loans in material compliance with the terms of this Agreement. The Servicer shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties to service the Loans and REO Properties Assets in accordance with this Agreement and which in its opinion may involve it in any expense or liability; provided, however, that the Servicer may, with the consent (not to be unreasonably withheld) of the Trustee (at the direction of the Holder) or the Depositor and, as applicable, the REO Owner, undertake any such action which it may deem necessary or desirable in respect of this Agreement and the rights and duties of the parties hereto. In such event, or if the Servicer deems it necessary to defend any such action, the Servicer shall be entitled to reimbursement from the related Custodial Account for its reasonable legal expenses and costs of such action. In addition, the Servicer, the Trustee, the REO Owner and the Depositor and their respective directors, officers, employees and agents shall be entitled to indemnification from, and are hereby indemnified by, the related Trust for any loss, liability or expense incurred in connection with any claim, demand, action or legal proceeding arising out of, or in connection with, the acceptance or administration of the Loans including, without limitation, servicing of the related Loans, the related REO Property and the costs and expenses (including reasonable attorney’s fees) of defending themselves against any claim in connection with the exercise or performance of any of their powers or duties hereunder, except if and to the extent such loss, liability or expense results from or arises out of the fraud, negligence, willful misconduct, bad faith or a failure to perform any or all of their covenants, agreements, warranties or representations contained in this Agreement on the part of the indemnified party. Such indemnification shall include but not be limited to losses, liability or expenses resulting from or arising out of the origination, sale or prior servicing of any Loan or REO Property.