Common use of Limitation on Liability of the Depositor, the Servicer, the Indenture Trustee, the Master Servicer and Others Clause in Contracts

Limitation on Liability of the Depositor, the Servicer, the Indenture Trustee, the Master Servicer and Others. None of the Depositor, the Servicer, the Master Servicer, the Indenture Trustee or any of the directors, officers, employees or agents of the Depositor, the Servicer, the Indenture Trustee or the Master Servicer shall be under any liability to the Securityholders for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Depositor, the Servicer, the Master Servicer, the Indenture Trustee or any such Person against any breach of representations or warranties made by it herein or protect the Depositor, the Servicer, the Master Servicer, the Indenture Trustee or any such Person from any liability which would otherwise be imposed by reasons of willful misconduct, bad faith or negligence in the performance of duties hereunder. The Depositor, the Servicer, the Master Servicer, the Indenture Trustee and any director, officer, employee or agent of the Depositor, the Servicer, the Indenture Trustee or the Master Servicer may conclusively 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 Depositor, the Servicer, the Master Servicer and any director, officer, employee or agent of the Depositor, the Servicer or the Master Servicer shall be indemnified by the Issuer and held harmless against any loss, liability or expense incurred in connection with any audit, controversy or judicial proceeding relating to a governmental taxing authority or any legal action relating to this Agreement or the performance thereof, or the Securities, other than any loss, liability or expense related to any specific Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense shall be otherwise reimbursable pursuant to this Agreement) and any loss, liability or expense incurred by reason of willful misconduct, bad faith or negligence in the performance of duties hereunder or by reason of reckless disregard of obligations and duties hereunder. None of the Depositor, the Servicer or the Master Servicer shall be under any obligation to appear in, prosecute or defend any legal action that is not incidental to its respective duties hereunder and which in its opinion may involve it in any expense or liability; provided, however, that any of the Depositor, the Servicer or the Master Servicer may in its discretion undertake any such action that it may deem necessary or desirable in respect of this Agreement and the rights and duties of the parties hereto and interests of the Issuer and the Securityholders hereunder. In such event, the legal expenses and costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities of Issuer, and the Depositor, the Servicer and the Master Servicer shall be entitled to be reimbursed therefor out of the Collection Account. The Indenture Trustee shall have no obligation to invest and reinvest cash held in any Trust Account in the absence of timely and specific written investment direction from the Depositor or the Master Servicer, as applicable. In no event shall the Indenture Trustee be liable for the selection of investments or for investment losses incurred thereon. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Depositor or the Master Servicer, as applicable, to provide timely investment direction. The Indenture Trustee or its Affiliates are permitted to receive additional compensation that could be deemed to be in the Indenture Trustee’s economic self-interest for (i) serving as investment adviser, administrator, shareholder servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments, (ii) using Affiliates to effect transactions in certain Permitted Investments and (iii) effecting transactions in certain Permitted Investments. SMS shall indemnify and hold harmless the Indenture Trustee, the Paying Agent, the Securities Intermediary, the Note Registrar or the Custodian and any director, officer, employee or agent thereof against any loss, liability or expense, including reasonable attorney’s fees, incurred in connection with or arising out of or in connection with the Operative Agreements or the Securities, including, but not limited to, any such loss, liability or expense incurred in connection with any legal action against the Issuer or the Indenture Trustee, the Paying Agent, the Securities Intermediary, the Note Registrar or the Custodian or any director, officer, employee or agent thereof, or the performance of any of the duties of the Indenture Trustee, the Securities Intermediary, the Note Registrar or the Paying Agent under the Operative Agreements (including, but not limited to, the execution and delivery of documents in connection with a foreclosure sale, trustee’s sale, or deed in lieu of foreclosure of a Mortgage Loan, including, but not, limited to, any deed of reconveyance, any substitution of trustee documents or any other documents to release, satisfy, cancel or discharge any Mortgage Loan) other than any loss, liability or expense incurred by reason of the willful misconduct, bad faith or negligence in the performance of the duties of the Indenture Trustee, Securities Intermediary, Note Registrar or Paying Agent under the Operative Agreements or by reason of the willful misconduct, bad faith or gross negligence of the Custodian under any custody agreement (including specifically any loss, liability or expense incurred by the Custodian by reason of simple negligence under any custody agreement). The Indenture Trustee may receive an additional indemnity from a party acceptable to the Indenture Trustee. The Indenture Trustee shall be entitled to the same rights, protections and immunities set forth in the Indenture as if they were specifically set forth herein. The indemnification obligations of SMS shall survive the termination of this Agreement or the resignation or removal of the Indenture Trustee.

Limitation on Liability of the Depositor, the Servicer, the Indenture Trustee, the Master Servicer and Others. None of the Depositor, the Servicer, the Master Servicer, the Indenture Trustee or any of the directors, officers, employees or agents of the Depositor, the Servicer, the Indenture Trustee or the Master Servicer shall be under any liability to the Securityholders for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Depositor, the Servicer, the Master Servicer, the Indenture Trustee or any such Person against any breach of representations or warranties made by it herein or protect the Depositor, the Servicer, the Master Servicer, the Indenture Trustee or any such Person from any liability which would otherwise be imposed by reasons of willful misconduct, bad faith or negligence in the performance of duties hereunder. The Depositor, the Servicer, the Master Servicer, the Indenture Trustee and any director, officer, employee or agent of the Depositor, the Servicer, the Indenture Trustee or the Master Servicer may conclusively 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 Depositor, the Servicer, the Master Servicer and any director, officer, employee or agent of the Depositor, the Servicer or the Master Servicer shall be indemnified by the Issuer and held harmless against any loss, liability or expense incurred in connection with any audit, controversy or judicial proceeding relating to a governmental taxing authority or any legal action relating to this Agreement or the performance thereof, or the Securities, other than any loss, liability or expense related to any specific Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense shall be otherwise reimbursable pursuant to this Agreement) and any loss, liability or expense incurred by reason of willful misconduct, bad faith or negligence in the performance of duties hereunder or by reason of reckless disregard of obligations and duties hereunder. None of the Depositor, the Servicer or the Master Servicer shall be under any obligation to appear in, prosecute or defend any legal action that is not incidental to its respective duties hereunder and which in its opinion may involve it in any expense or liability; provided, however, that any of the Depositor, the Servicer or the Master Servicer may in its discretion undertake any such action that it may deem necessary or desirable in respect of this Agreement and the rights and duties of the parties hereto and interests of the Issuer and the Securityholders hereunder. In such event, the legal expenses and costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities of Issuer, and the Depositor, the Servicer and the Master Servicer shall be entitled to be reimbursed therefor out of the Collection Account. The Indenture Trustee shall have no obligation to invest and reinvest cash held in any Trust Account in the absence of timely and specific written investment direction from the Depositor or the Master Servicer, as applicable. In no event shall the Indenture Trustee be liable for the selection of investments or for investment losses incurred thereon. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Depositor or the Master Servicer, as applicable, to provide timely investment direction. The Indenture Trustee or its Affiliates are permitted to receive additional compensation that could be deemed to be in the Indenture Trustee’s economic self-interest for (i) serving as investment adviser, administrator, shareholder servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments, (ii) using Affiliates to effect transactions in certain Permitted Investments and (iii) effecting transactions in certain Permitted Investments. SMS shall indemnify and hold harmless the Indenture Trustee, the Paying Agent, the Securities Intermediary, the Note Registrar or the Custodian and any director, officer, employee or agent thereof against any loss, liability or expense, including reasonable attorney’s fees, incurred in connection with or arising out of or in connection with the Operative Agreements or the Securities, including, but not limited to, any such loss, liability or expense incurred in connection with any legal action against the Issuer or the Indenture Trustee, the Paying Agent, the Securities Intermediary, the Note Registrar or the Custodian or any director, officer, employee or agent thereof, or the performance of any of the duties of the Indenture Trustee, the Securities Intermediary, the Note Registrar or the Paying Agent under the Operative Agreements (including, but not limited to, the execution and delivery of documents in connection with a foreclosure sale, trustee’s sale, or deed in lieu of foreclosure of a Mortgage Loan, including, but not, limited to, any deed of reconveyance, any substitution of trustee documents or any other documents to release, satisfy, cancel or discharge any Mortgage Loan) other than any loss, liability or expense incurred by reason of the willful misconduct, bad faith or negligence in the performance of the duties of the Indenture Trustee, Securities Intermediary, Note Registrar or Paying Agent under the Operative Agreements or by reason of the willful misconduct, bad faith or gross negligence of the Custodian under any custody custodial agreement (including specifically any loss, liability or expense incurred by the Custodian by reason of simple negligence under any custody custodial agreement). The Indenture Trustee may receive an additional indemnity from a party acceptable to the Indenture Trustee. The Indenture Trustee shall be entitled to the same rights, protections and immunities set forth in the Indenture as if they were specifically set forth herein. The indemnification obligations of SMS shall survive the termination of this Agreement or the resignation or removal of the Indenture Trustee.

Limitation on Liability of the Depositor, the Servicer, the Indenture Trustee, the Master Servicer and Others. None of the Depositor, the Servicer, the Master Servicer, the Indenture Trustee or any of the directors, officers, employees or agents of the Depositor, the Servicer, the Indenture Trustee or the Master Servicer shall be under any liability to the Securityholders for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Depositor, the Servicer, the Master Servicer, the Indenture Trustee or any such Person against any breach of representations or warranties made by it herein or protect the Depositor, the Servicer, the Master Servicer, the Indenture Trustee or any such Person from any liability which would otherwise be imposed by reasons of willful misconduct, bad faith or negligence in the performance of duties hereunder. The Depositor, the Servicer, the Master Servicer, the Indenture Trustee and any director, officer, employee or agent of the Depositor, the Servicer, the Indenture Trustee or the Master Servicer may conclusively 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 Depositor, the Servicer, the Master Servicer and any director, officer, employee or agent of the Depositor, the Servicer or the Master Servicer shall be indemnified by the Issuer and held harmless against any loss, liability or expense incurred in connection with any audit, controversy or judicial proceeding relating to a governmental taxing authority or any legal action relating to this Agreement or the performance thereof, or the Securities, other than any loss, liability or expense related to any specific Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense shall be otherwise reimbursable pursuant to this Agreement) and any loss, liability or expense incurred by reason of willful misconduct, bad faith or negligence in the performance of duties hereunder or by reason of reckless disregard of obligations and duties hereunder. None of the Depositor, the Servicer or the Master Servicer shall be under any obligation to appear in, prosecute or defend any legal action that is not incidental to its respective duties hereunder and which in its opinion may involve it in any expense or liability; provided, however, that any of the Depositor, the Servicer or the Master Servicer may in its discretion undertake any such action that it may deem necessary or desirable in respect of this Agreement and the rights and duties of the parties hereto and interests of the Issuer and the Securityholders hereunder. In such event, the legal expenses and costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities of Issuer, and the Depositor, the Servicer and the Master Servicer shall be entitled to be reimbursed therefor out of the Collection Account. The Indenture Trustee shall have no obligation to invest and reinvest cash held in any Trust Account in the absence of timely and specific written investment direction from the Depositor or the Master Servicer, as applicable. In no event shall the Indenture Trustee be liable for the selection of investments or for investment losses incurred thereon. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Depositor or the Master Servicer, as applicable, to provide timely investment direction. The Indenture Trustee or its Affiliates are permitted to receive additional compensation that could be deemed to be in the Indenture Trustee’s economic self-interest for (i) serving as investment adviser, administrator, shareholder servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments, (ii) using Affiliates to effect transactions in certain Permitted Investments and (iii) effecting transactions in certain Permitted Investments. SMS [SMS] shall indemnify and hold harmless the Indenture Trustee, the Paying Agent, the Securities Intermediary, the Note Registrar or the Custodian and any director, officer, employee or agent thereof against any loss, liability or expense, including reasonable attorney’s fees, incurred in connection with or arising out of or in connection with the Operative Agreements or the Securities, including, but not limited to, any such loss, liability or expense incurred in connection with any legal action against the Issuer or the Indenture Trustee, the Paying Agent, the Securities Intermediary, the Note Registrar or the Custodian or any director, officer, employee or agent thereof, or the performance of any of the duties of the Indenture Trustee, the Securities Intermediary, the Note Registrar or the Paying Agent under the Operative Agreements (including, but not limited to, the execution and delivery of documents in connection with a foreclosure sale, trustee’s sale, or deed in lieu of foreclosure of a Mortgage Loan, including, but not, limited to, any deed of reconveyance, any substitution of trustee documents or any other documents to release, satisfy, cancel or discharge any Mortgage Loan) other than any loss, liability or expense incurred by reason of the willful misconduct, bad faith or negligence in the performance of the duties of the Indenture Trustee, Securities Intermediary, Note Registrar or Paying Agent under the Operative Agreements or by reason of the willful misconduct, bad faith or gross negligence of the Custodian under any custody agreement (including specifically any loss, liability or expense incurred by the Custodian by reason of simple negligence under any custody agreement). The Indenture Trustee may receive an additional indemnity from a party acceptable to the Indenture Trustee. The Indenture Trustee shall be entitled to the same rights, protections and immunities set forth in the Indenture as if they were specifically set forth herein. The indemnification obligations of SMS [SMS] shall survive the termination of this Agreement or the resignation or removal of the Indenture Trustee.