Common use of Indemnification of the Purchaser Clause in Contracts

Indemnification of the Purchaser. In the event that the Custodian fails to produce a Mortgage Note, Assignment of Mortgage or any other document related to a Mortgage Loan that was in its possession pursuant to Section 2 within five (5) Business Days after required or requested by the Purchaser or its designee, and provided, that (i) Custodian previously delivered to the Trustee or the Master Servicer a Certification with respect to such document; (ii) such document is not outstanding pursuant to a request for release of documents and receipt in the form annexed hereto as Exhibit 3; and (iii) such document was held by the Custodian on behalf of the Trustee (a "Custodial Delivery Failure"), then the Custodian shall (a) with respect to any missing Mortgage Note, promptly deliver to such Purchaser or its designee upon request, a Lost Note Affidavit in the form of Exhibit 7 annexed hereto and (b)with respect to any missing document related to such Mortgage Loan including but not limited to, a missing Mortgage Note, indemnify the Trustee in accordance with the succeeding paragraph of this Section 25. The Custodian agrees to indemnify and hold the Purchaser, the Trustee and the Master Servicer harmless against any and all direct liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, including reasonable attorneys' fees, that may be imposed on, incurred by, or asserted against it or them directly relating to or arising out of such Custodial Delivery Failure. In no event shall the Custodian or its directors, officers, agents and employees be liable for any special, indirect or consequential damages from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility of such damages. The foregoing indemnification shall survive any termination or assignment of the Custodial Agreement.

Indemnification of the Purchaser. In the event that the Custodian fails to produce a Mortgage Note, Assignment of Mortgage or any other document related to a Mortgage Loan that was in its possession pursuant to Section 2 within five (5) Business Days after required or requested by the Purchaser or its designee, and provided, that (i) Custodian previously delivered to the Trustee or the Master Servicer a Certification with respect to such document; (ii) such document is not outstanding pursuant to a request for release of documents and receipt in the form annexed hereto as Exhibit 3; and (iii) such document was held by the Custodian on behalf of the Trustee (a "“Custodial Delivery Failure"”), then the Custodian shall (a) with respect to any missing Mortgage Note, promptly deliver to such Purchaser or its designee upon request, a Lost Note Affidavit in the form of Exhibit 7 annexed hereto and (b)with respect to any missing document related to such Mortgage Loan including but not limited to, a missing Mortgage Note, indemnify the Trustee in accordance with the succeeding paragraph of this Section 25. The Custodian agrees to indemnify and hold the Purchaser, the Trustee and the Master Servicer harmless against any and all direct liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, including reasonable attorneys' ’ fees, that may be imposed on, incurred by, or asserted against it or them directly relating to or arising out of such Custodial Delivery Failure. In no event shall the Custodian or its directors, officers, agents and employees be liable for any special, indirect or consequential damages from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility of such damages. The foregoing indemnification shall survive any termination or assignment of the Custodial Agreement.

Indemnification of the Purchaser. In the event that the Custodian fails to produce a Mortgage Note, Assignment of Mortgage or any other document Mortgage Loan Document related to a Mortgage Loan that was in its possession pursuant to Section 2 within five two (52) Business Days after required or requested by the Purchaser or its designeein writing, and provided, that (i) the Custodian previously delivered to the Trustee or the Master Servicer Purchaser a Certification with respect to such documentMortgage Loan Document; (ii) such document Mortgage Loan Document is not outstanding pursuant to a request for release of documents and receipt in the form annexed hereto as Exhibit 32; and (iii) such document Mortgage Loan Document was held by the Custodian on behalf of the Trustee Purchaser (a "“Custodial Delivery Failure"”), then the Custodian shall (a) with respect to any missing Mortgage Note, promptly deliver to such Purchaser or its designee upon request, a Lost Note Affidavit in the form of Exhibit 7 annexed hereto and (b)with respect to any missing document related to such Mortgage Loan including but not limited to, a missing Mortgage Note, indemnify the Trustee Purchaser in accordance with the succeeding paragraph of this Section 2524. The Custodian agrees to indemnify and hold the Purchaser, the Trustee Purchaser and the Master Servicer and their respective designees, harmless against any and all direct liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, including reasonable attorneys' attorney’s fees, that may be imposed on, incurred by, or asserted against it or them directly in any way relating to or arising out of such a Custodial Delivery Failure. In no event shall Failure or the Custodian Custodian’s negligence, lack of good faith or its directors, officers, agents and employees be liable for any special, indirect or consequential damages from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility of such damageswillful misconduct. The foregoing indemnification shall survive any termination or assignment of the Custodial this Agreement.

Indemnification of the Purchaser. In Each Shareholder -------------------------------- agrees jointly and not severally, subject to the event that other terms and conditions of this Agreement (including the Custodian fails limitations contained in Section 10.04) and without gross-up for Taxes, to produce a Mortgage Notedefend, Assignment indemnify and hold harmless the Purchaser and each of Mortgage the Purchaser's subsidiaries, Affiliates, officers, directors, employees, agents and their successors and assigns (the Purchaser and all such other Persons are collectively referred to as the "Purchaser's Indemnified ----------------------- Persons"), from and against each and every Loss paid, imposed on or incurred by ------- the Purchaser's Indemnified Persons relating to, resulting from or arising out of: (a) any breach of any representation, warranty, covenant or agreement made by the Company in this Agreement or (b) any Liability of the Company or any other document related Non- Energy Company Subsidiary, incurred or arising out of events which occurred prior to a Mortgage Loan that was in its possession the Effective Time (but excluding any Liability directly relating to, arising out of or resulting from the operations of North Central, for which North Central has liability). The Purchaser's Indemnified Persons shall also be entitled to recourse against the Escrow Consideration for any indemnifiable loss on the same pro rata basis as would have been applied if the Persons on whose behalf the shares and cash have been placed into escrow had executed Joinder Agreements pursuant to Section 2 within five (5) Business Days after required 6.13. A Purchaser's Indemnified Person shall give the Shareholders written notice of any matter which such Purchaser's Indemnified Person has determined has given or requested by the Purchaser or its designee, and provided, that (i) Custodian previously delivered to the Trustee or the Master Servicer a Certification with respect to such document; (ii) such document is not outstanding pursuant could give rise to a request for release right of documents and receipt in indemnification hereunder within sixty (60) days of such determination, supported by reasonable documentation setting forth the form annexed hereto as Exhibit 3; and (iii) such document was held by the Custodian on behalf nature of the Trustee circumstances entitling the Purchaser's Indemnified Person to indemnity hereunder (a "Custodial Delivery Failure")including, then the Custodian shall (a) with respect to any missing Mortgage Note, promptly deliver to such Purchaser or its designee upon request, a Lost Note Affidavit in the form of Exhibit 7 annexed hereto and (b)with respect to any missing document related to such Mortgage Loan including but not limited to, a missing Mortgage Note, indemnify references to the Trustee in accordance with the succeeding paragraph of this Section 25. The Custodian agrees to indemnify and hold provisions hereof upon which the Purchaser, the Trustee and the Master Servicer harmless against any and all direct liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, including reasonable attorneys' fees, that may be imposed on, incurred by, or asserted against it or them directly relating to or arising out of 's Indemnified Person is relying in making such Custodial Delivery Failure. In no event shall the Custodian or its directors, officers, agents and employees be liable for any special, indirect or consequential damages from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility of such damages. The foregoing indemnification shall survive any termination or assignment of the Custodial Agreementclaim).

Indemnification of the Purchaser. In the event that the Custodian fails to produce a Mortgage Note, Assignment of Mortgage or any other document related to a Mortgage Loan that was in its possession pursuant Subject to Section 2 within five (5) Business Days after required or requested by 9.7(b), the Sellers shall indemnify, defend and hold harmless the Purchaser Indemnified Parties from and against any and all Losses which arise out of, or its designeeresult from, and providedthe following Tax matters (collectively, that the "Tax Matters"): (i) Custodian previously delivered to any Tax in excess of amounts accrued in respect of such Tax on any Company's financial books and records (which accruals shall be made in accordance with Applicable GAAP and shall not reflect any of the Trustee transactions contemplated by this Agreement) payable by or the Master Servicer a Certification with respect to such document; (ii) such document is not outstanding pursuant to a request for release of documents and receipt in the form annexed hereto as Exhibit 3; and (iii) such document was held by the Custodian on behalf of the Trustee Sellers or any Sellers' Affiliates, or any Company, for any taxable period ending on or prior to the Closing Date (a "Custodial Delivery Failure"or for the portion ending on the Closing Date of any taxable period that includes but does not begin or end on the Closing Date), then (ii) any deficiencies in any Tax payable by, or on behalf of, the Custodian shall (a) Sellers or any Sellers' Affiliates, or any Company arising from any audit by any taxing agency or authority with respect to any missing Mortgage Noteperiod ending on or prior to the Closing Date (or for the portion ending on the Closing Date of any taxable period that includes but does not begin or end on the Closing Date), promptly deliver (iii) any claim or demand for reimbursement or indemnification resulting from any transfer by the Sellers prior to such Purchaser the Closing of any Tax benefits or its designee upon requestcredits to any other Person, (iv) one-half of any Transfer Taxes arising from the Transactions contemplated by this Agreement, (v) any Liability for Taxes as a Lost Note Affidavit in result of the form of Exhibit 7 annexed hereto Euro Cormar Separation and (b)with respect vi) any breach of any representation or warranty made by any Seller in Sections 4.18 and 5.17 (provided, that, to the extent that any missing document related such representation or warranty is qualified by immateriality, materiality, material adverse effect or any derivation of any of the foregoing, such qualifications shall be ignored for purposes of indemnification under this Section 9.6); provided, that the Purchaser shall not be entitled to such Mortgage Loan including but not limited to, recover more than the amount of any Loss due as a missing Mortgage Note, indemnify the Trustee in accordance with the succeeding paragraph result of bringing a claim for indemnification under more than one clause of this Section 25. The Custodian agrees to indemnify and hold the Purchaser9.6(a); provided, the Trustee and the Master Servicer harmless against any and all direct liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, including reasonable attorneys' feesfurther, that may be imposed on, incurred by, or asserted against it or them directly a "Loss" for purposes of this Section 9.6(a) only shall not include any amount of Tax to the extent attributable to a change by a Company after the Closing Date in a legally permissible method of tax accounting that was used by such Company consistently through the Closing Date (but a change after the Closing Date by any Company relating to or arising out the transfer pricing used in respect of such Custodial Delivery Failure. In no event shall the Custodian or its directors, officers, agents and employees be liable for any special, indirect or consequential damages from payment between any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility Companies shall not be viewed as a change in a legally permissible method of such damages. The foregoing indemnification shall survive any termination or assignment tax accounting for purposes of the Custodial Agreementpreceding proviso).

Indemnification of the Purchaser. In The Sellers will jointly and severally indemnify and hold harmless the event that Purchaser and its respective representatives, stockholders, employees, officers, directors, controlling persons, and affiliates (collectively, the Custodian fails "Purchaser Indemnified Persons") for, and will pay and reimburse to produce the Purchaser Indemnified Persons the amount of, any loss, liability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys' expenses and fees) or diminution of value, whether or not involving a Mortgage Notethird-party claim (collectively, Assignment "Damages"), arising, directly or indirectly, from or in connection with: (a) any breach of Mortgage any representation or warranty made by the Sellers in this Agreement, the Schedules, any supplements to the Schedules, or any other certificate or document related to a Mortgage Loan that was in its possession delivered by the Sellers pursuant to this Agreement; (b) any breach by the Sellers of any covenant or obligation of the Sellers in this Agreement, the Schedules, any supplements to the Schedules, or any other certificate or document delivered by the Sellers pursuant to this Agreement; (c) the claims of any broker, finder, or similar person engaged by the Sellers in connection with any of the transactions contemplated hereby; or (d) without in any manner limiting the foregoing, Damages which arise from the operation of the Subsidiary's business, or from the ownership or condition of the Assets by Parent or the Subsidiary during any period or periods on or prior to the Closing Date or which arise otherwise out of or in relation to the Assets on or prior to the Closing Date, including, without limitation, product liability or warranty. Notwithstanding anything to the contrary herein, the Sellers, jointly and severally, will indemnify and hold harmless the Purchaser Indemnified Persons from and against any Damages arising, directly or indirectly, from or in connection with the failure of the Sellers to make any tax filing in any jurisdiction or the failure of the Sellers to pay any employment tax or transfer tax, including any sales, use and other taxes, mandatory payments and charges (if such failure to file or pay relates to any period on or prior to May 31, 2002, or is attributable to the failure of Sellers to pay the taxes provided for in Section 2 within five (5) Business Days after required 8.11). Such indemnification obligation shall not be limited in time. The remedies provided in this Section 7.2 will not be exclusive of or requested by limit any other remedies that may be available to the Purchaser or its designee, and provided, that (i) Custodian previously delivered to the Trustee or the Master Servicer a Certification with respect to such document; (ii) such document is not outstanding pursuant to a request for release of documents and receipt in the form annexed hereto as Exhibit 3; and (iii) such document was held by the Custodian on behalf of the Trustee (a "Custodial Delivery Failure"), then the Custodian shall (a) with respect to any missing Mortgage Note, promptly deliver to such other Purchaser or its designee upon request, a Lost Note Affidavit in the form of Exhibit 7 annexed hereto and (b)with respect to any missing document related to such Mortgage Loan including but not limited to, a missing Mortgage Note, indemnify the Trustee in accordance with the succeeding paragraph of this Section 25. The Custodian agrees to indemnify and hold the Purchaser, the Trustee and the Master Servicer harmless against any and all direct liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, including reasonable attorneys' fees, that may be imposed on, incurred by, or asserted against it or them directly relating to or arising out of such Custodial Delivery Failure. In no event shall the Custodian or its directors, officers, agents and employees be liable for any special, indirect or consequential damages from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility of such damages. The foregoing indemnification shall survive any termination or assignment of the Custodial AgreementIndemnified Persons.

Indemnification of the Purchaser. In From and after the event that the Custodian fails to produce a Mortgage Note, Assignment of Mortgage or any other document related to a Mortgage Loan that was in its possession pursuant to Section 2 within five (5) Business Days after required or requested by the Purchaser or its designee, date hereof and provided, that (i) Custodian previously delivered subject to the Trustee or the Master Servicer a Certification with respect to such document; (ii) such document is not outstanding pursuant to a request for release of documents limitations contained in this Article X, each Seller Party shall, jointly and receipt in the form annexed hereto as Exhibit 3; and (iii) such document was held by the Custodian on behalf of the Trustee (a "Custodial Delivery Failure"), then the Custodian shall (a) with respect to any missing Mortgage Note, promptly deliver to such Purchaser or its designee upon request, a Lost Note Affidavit in the form of Exhibit 7 annexed hereto and (b)with respect to any missing document related to such Mortgage Loan including but not limited to, a missing Mortgage Noteseverally, indemnify the Trustee in accordance with Purchaser and its respective equity holders, officers, directors, employees, agents, attorneys, accountants, advisors, Affiliates and its successors and assigns (collectively, the succeeding paragraph of this Section 25. The Custodian agrees to indemnify "Purchaser Indemnified Parties") and hold the Purchaser, the Trustee and the Master Servicer Purchaser Indemnified Parties harmless against any and all direct liabilitiesloss, obligationsexpense, lossesliability, damagesclaim, penaltiesobligation, actionsfine, judgmentspenalty, suits, costs, expenses cost or disbursementsother damage, including reasonable attorneys' fees, to the extent of the actual amount of such loss, expense, liability or other damage (collectively, "Damages") that may be imposed on, the Purchaser Indemnified Parties have incurred byby reason of (i) the inaccuracy or breach by the Seller Parties of any representation or warranty contained in Article III (Representations and Warranties Relating to the Business) of this Agreement or the Non-Vertebroplasty Purchase Agreement, or asserted against it any other agreement, Contract, certificate or them directly relating to other document executed or delivered by or on behalf of any Seller Party in connection with the consummation of the transactions contemplated hereby or by the Non-Vertebroplasty Purchase Agreement, (ii) the 74 CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. breach by the Seller Parties of any covenant, agreement or other obligation of the Seller Parties contained in this Agreement or the Non-Vertebroplasty Purchase Agreement, or any other agreement, Contract, certificate or other document executed or delivered by or on behalf of any Seller Party in connection with the consummation of the transactions contemplated hereby or by the Non- Vertebroplasty Purchase Agreement, (iii) any Damages of the Purchaser arising out of or resulting from the failure of the Subsidiary to comply with any applicable bulk sales laws in the United States and (iv) all Liabilities of the Seller Parties except for the Assumed Liabilities (as defined in each of this Agreement and the Non-Vertebroplasty Purchase Agreement). The term "Damages" as used in this Article X is not limited to matters asserted by third parties against an indemnified party, but includes Damages incurred or sustained by an indemnified party in the absence of third party claims. All calculations of Damages shall take into account any offset benefits or insurance proceeds actually recovered under insurance policies in connection with the matter out of which such Custodial Delivery FailureDamages shall arise, provided, however, that the Seller Parties shall reimburse the Purchaser Indemnified Parties for any increase in premium with respect to such insurance policies that the Purchaser determines, in its reasonable good faith judgment and supported by documentation reasonably satisfactory to the Seller Parties, is due to the tender of such claim made in connection with the matter out of which such Damages arose. In If the Purchaser determines, in its reasonable good faith judgment, that any matter out of which Damages shall arise is covered by an insurance policy of a Purchaser Indemnified Party, then the Purchaser shall, and shall cause the Purchaser Indemnified Party to, file a claim against such insurance policy with respect to such Damages. Notwithstanding anything herein to the contrary, (i) the Purchaser Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages under Section 10.1(a)(i) from a Seller Party unless and until the aggregate amount of all such Damages suffered by the Purchaser Indemnified Parties for which indemnification is available under this Section 10.1 exceeds the Deductible in Section 10.4 (Deductible and Cap) and then the Purchaser Indemnified Parties shall be entitled to indemnification for only such aggregate amount that exceeds such Deductible, and (ii) the aggregate amount of all payments to which the Purchaser Indemnified Parties shall be entitled to receive with respect to any Damages under Section 10.1(a)(i) shall in no event exceed the Cap. The limitations set forth in this Section 10.1(c) shall not apply to (i) the Custodian or its directors, officers, agents and employees be liable for any special, indirect or consequential damages from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised first sentence of Sections 3.1 (Organization of the possibility Company and the Subsidiary), the first four sentences of such damages. The foregoing indemnification shall survive 3.3(a) (Authority), 3.4 (Tax Matters), 3.6 (Title to Property and Assets) and 3.19 (Governmental Grants) of this Agreement or the Non-Vertebroplasty Purchase Agreement (collectively, the "Representations Not Subject to Cap"), (ii) the breach of any termination covenant, agreement or assignment other obligation of Seller Parties contained in this Agreement or the Custodial Non-Vertebroplasty Purchase Agreement, or (ii) any claims based on fraud or intentional misrepresentation.

Indemnification of the Purchaser. In the event that the Custodian fails to produce a Mortgage Note, Assignment of Mortgage or any other document related to a Mortgage Loan that was in its possession pursuant to Section 2 within five (5) Business Days after required or requested by the Purchaser or its designee, and provided, that (i) Custodian previously delivered Subject to the Trustee or the Master Servicer a Certification with respect to such document; (ii) such document is not outstanding pursuant to a request for release of documents and receipt in the form annexed hereto as Exhibit 3; and (iii) such document was held by the Custodian on behalf of the Trustee (a "Custodial Delivery Failure"), then the Custodian shall (a) with respect to any missing Mortgage Note, promptly deliver to such Purchaser or its designee upon request, a Lost Note Affidavit in the form of Exhibit 7 annexed hereto and (b)with respect to any missing document related to such Mortgage Loan including but not limited to, a missing Mortgage Note, indemnify the Trustee in accordance with the succeeding paragraph provisions of this Section 25. The Custodian agrees 4.10 (and in addition to the indemnification provisions set forth in Section 4.15), the Company will indemnify and hold the Purchaser, the Trustee Purchaser and the Master Servicer harmless against any and all direct liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, including reasonable attorneys' fees, that may be imposed on, incurred by, or asserted against it or them directly relating to or arising out of such Custodial Delivery Failure. In no event shall the Custodian or its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls the Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement. Promptly after receipt by any Person (the “Indemnified Person”) of notice of any demand, claim or circumstances which would or might give rise to a claim or the commencement of any action, proceeding or investigation in respect of which indemnity may be sought pursuant to this Section 4.10, such Indemnified Person shall promptly notify the Company in writing and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall assume the payment of all fees and expenses; provided, however, that the failure of any Indemnified Person so to notify the Company shall not relieve the Company of its obligations hereunder except to the extent that the Company is actually and materially prejudiced by such failure to notify. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless: (i) the Company and the Indemnified Person shall have mutually agreed to the retention of such counsel; (ii) the Company shall have failed promptly to assume the defense of such proceeding and to employ counsel reasonably satisfactory to such Indemnified Person in such proceeding; or (iii) in the reasonable judgment of counsel to such Indemnified Person, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Company shall not be liable for any specialsettlement of any proceeding effected without its written consent, indirect which consent shall not be unreasonably withheld, delayed or consequential damages from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised conditioned. Without the prior written consent of the possibility Indemnified Person, which consent shall not be unreasonably withheld, delayed or conditioned, the Company shall not effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such damages. The foregoing indemnification shall survive any termination or assignment Indemnified Person from all liability arising out of the Custodial Agreementsuch proceeding.

Indemnification of the Purchaser. In the event that the Custodian fails to produce a Mortgage Note, Assignment of Mortgage or any other document related to a Mortgage Loan that was in its possession pursuant to Section 2 within five (5) Business Days after required or requested by the Purchaser or its designee, and provided, that (i) Custodian previously delivered to the Trustee or the Master Servicer a Certification with respect to such document; (ii) such document is not outstanding pursuant to a request for release of documents and receipt in the form annexed hereto as Exhibit 3; and (iii) such document was held by the Custodian on behalf of the Trustee (a "Custodial Delivery Failure"), then the Custodian shall (a) with respect to The Debtor shall indemnify the Purchaser and each of its Subsidiaries and its Affiliates, successors and assigns (collectively, the "Indemnified Parties") and hold each of the Indemnified Parties harmless from and defend them each against any missing Mortgage Noteand all actions, promptly deliver to such Purchaser or its designee upon requestsuits, a Lost Note Affidavit in the form of Exhibit 7 annexed hereto proceedings, demands, judgments, losses, costs, liabilities, damages and (b)with respect to any missing document related to such Mortgage Loan including expenses, including, but not limited to, a missing Mortgage Note, indemnify the Trustee in accordance with the succeeding paragraph of this Section 25. The Custodian agrees to indemnify and hold the Purchaser, the Trustee and the Master Servicer harmless against any and all direct liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, including reasonable out-of-pocket attorneys' feesand accountants' fees and disbursements (collectively, that may be imposed on"Damages"), incurred by, or asserted against it or them directly relating to resulting from or arising out of such Custodial Delivery Failure. In (i) any material breach or inaccuracy of any of the representations, warranties, covenants or agreements of the Debtor set forth in this Agreement or in any exhibit, schedule or other document delivered pursuant hereto, (ii) the performance of any service or the sale of any product prior to the Closing by the Debtor, (iii) the Debtor's ownership and operation of the Business, the Purchased Assets or the Business Real Estate on or prior to the Closing Date, (iv) any liability to any third Person under any Environmental Law arising out of any act or occurrence prior to the Closing Date relating to any of the Purchased Assets, the Business or the Business Real Estate, (v) the non-compliance with ERISA in any respect by the Debtor or any Affiliate of the Debtor, (vi) any liability of the Debtor to any taxing authority or unemployment commission or agency, (vii) any claim made against the Purchaser in respect of any failure to comply with any "bulk sales" law applicable to the transactions contemplated by this Agreement, including, but not limited to, Section 22(c) of the New Jersey State Sales and Use Tax Act and Section 15 of the New Jersey Business Personal Property Tax Act, (viii) any liability under the WARN Act as a result of the transactions contemplated hereby and by the Employee Leasing Agreement, (ix) the Purchaser's claim or defense of any claim, in each case resolved in favor of the Purchaser, regarding the amounts held in the escrow account established pursuant to the Employee Leasing Agreement, which dispute arises prior to or after the filing of any voluntary or involuntary bankruptcy by the Debtor; and (x) any liability of the Debtor not expressly assumed by the Purchaser pursuant to this Agreement; provided, however, that the Debtor shall have no event shall obligation to indemnify any of the Custodian or its directors, officers, agents and employees be liable Indemnified Parties for any special, indirect or consequential damages from Damages related to any action taken or omitted to be taken by it or them hereunder or decrease in connection herewith even if advised the value of the possibility of such damages. The foregoing indemnification shall survive any termination or assignment of Purchased Assets after the Custodial AgreementClosing Date.

Indemnification of the Purchaser. In the event that of any registration of any of the Custodian fails Registrable Shares under the Securities Act pursuant to produce this Agreement, the Company will indemnify and hold harmless the Purchaser, each of its directors, partners, agents and officers and each other person, if any, who controls the Purchaser within the meaning of the Securities Act or the Exchange Act against any losses, claims, damages or liabilities to which the Purchaser or controlling person may become subject under the Securities Act, the Exchange Act, Blue Sky laws or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement under which such Registrable Shares were registered under the Securities Act, any preliminary prospectus or final prospectus contained in the Registration Statement, or any amendment or supplement to such Registration Statement, or arise out of or are based upon the omission or alleged omission to state a Mortgage Notematerial fact required to be stated therein or necessary to make the statements therein, Assignment in light of Mortgage the circumstances in which they were made, not misleading; and the Company will reimburse the Purchaser and each such controlling person for any legal or any other document related to a Mortgage Loan that was in its possession pursuant to Section 2 within five (5) Business Days after required or requested expenses reasonably incurred by the Purchaser or its designeecontrolling person in connection with investigating or defending any such loss, and claim, damage, liability or action; provided, however, that (i) Custodian previously delivered the Company will not be liable in any such case to the Trustee extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission made in such Registration Statement, preliminary prospectus or prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to the Master Servicer a Certification with respect to such document; (ii) such document is not outstanding pursuant to a request for release of documents and receipt Company, in the form annexed hereto as Exhibit 3; and (iii) such document was held writing, by the Custodian or on behalf of the Trustee (a "Custodial Delivery Failure")Purchaser or controlling person specifically for use in the preparation thereof; and provided further, then the Custodian shall (a) however, that any indemnification contained in this paragraph with respect to any missing Mortgage Notepreliminary prospectus shall not inure to the benefit of any person who otherwise is entitled to indemnification hereunder on account of any loss, promptly deliver liability, claim, damage or expense if a copy of an amended or supplemental preliminary prospectus, or the final prospectus, shall have been delivered or sent to such Purchaser person within the time required by the Securities Act, and the untrue statement or its designee upon request, omission of a Lost Note Affidavit material fact was corrected in such amended or supplemental preliminary prospectus or final prospectus and provided that such person did not deliver such amended or supplemental preliminary prospectus or final prospectus on a timely basis. The Company shall also indemnify any person or entity which may be deemed to be an "underwriter" for purposes of the form of Exhibit 7 annexed hereto and (b)with Securities Act with respect to any missing document related to the Registrable Shares covered by the Registration Statement, and such Mortgage Loan including but not limited to, a missing Mortgage Note, indemnify the Trustee in accordance with the succeeding paragraph of this Section 25. The Custodian agrees to indemnify and hold the Purchaser, the Trustee and the Master Servicer harmless against any and all direct liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, including reasonable attorneys' fees, that may be imposed on, incurred by, or asserted against it or them directly relating to or arising out of such Custodial Delivery Failure. In no event shall the Custodian or its entity's directors, officerspartners, agents and employees be liable for any specialofficers, indirect or consequential damages from any action taken or omitted to be taken by it or them hereunder or in connection herewith even and each other person, if advised any, who controls such "underwriter" within the meaning of the possibility of such damages. The foregoing indemnification shall survive any termination or assignment Securities Act, on the same basis as that of the Custodial Agreementindemnification of the Purchase pursuant to this subparagraph 5(f)(1).

Indemnification of the Purchaser. In The Parent, the event that Issuer and the Custodian fails to produce a Mortgage NoteSubsidiary Guarantors (each, Assignment of Mortgage or any other document related to a Mortgage Loan that was in its possession pursuant to Section 2 within five (5an “Indemnifying Party”) Business Days after required or requested by will jointly and severally indemnify and hold the Purchaser and its directors, managers, officers, shareholders, members, partners, employees and agents (each, an “Indemnified Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Indemnified Party may suffer or its designee, and provided, that (i) Custodian previously delivered incur as a result of or relating to the Trustee or the Master Servicer a Certification with respect to such document; (ii) such document is not outstanding pursuant to a request for release of documents and receipt in the form annexed hereto as Exhibit 3; and (iii) such document was held by the Custodian on behalf of the Trustee (a "Custodial Delivery Failure"), then the Custodian shall (a) any breach of any of the representations, warranties, covenants or agreements made by an Indemnifying Party in this Agreement or in the other Transaction Documents or (b) any action instituted against any Indemnified Party by any shareholder of an Indemnifying Party who is not an affiliate of the Purchaser, with respect to any missing Mortgage Note, promptly deliver to of the transactions contemplated by the Transaction Documents (unless such Purchaser or its designee action is based upon request, a Lost Note Affidavit in the form breach of Exhibit 7 annexed hereto and (b)with respect to any missing document related to such Mortgage Loan including but not limited to, a missing Mortgage Note, indemnify the Trustee in accordance with the succeeding paragraph of this Section 25. The Custodian agrees to indemnify and hold the Purchaser’s representation, warranties or covenants under any of the Trustee and Transaction Documents or any agreements or understandings the Master Servicer harmless against Purchaser may have with any and all direct liabilitiessuch shareholder or any violations by the Purchaser of state or federal securities laws or any conduct by the Purchaser which constitutes fraud, obligationsgross negligence, losses, damages, penalties, actions, judgments, suits, costs, expenses willful misconduct or disbursements, including reasonable attorneys' feesmalfeasance); provided, that may be imposed on, incurred by, or asserted against it or them directly relating to or arising out of such Custodial Delivery Failure. In in no event shall the Custodian Parent, the Issuer or its directors, officers, agents and employees a Subsidiary Guarantor be liable for any specialindirect, indirect incidental, special or consequential damages from any or damages for loss of profits incurred by an Indemnified Party, whether in an action taken in contract or omitted to be taken by it or them hereunder or in connection herewith tort, even if the Parent, the Issuer and the Subsidiary Guarantors have been advised of the possibility of such damages. The foregoing indemnification If any action shall survive be brought against any termination Indemnified Party in respect of which indemnity may be sought pursuant to this Section 4.38, such Indemnified Party shall promptly notify the Parent in writing, and the Indemnifying Party shall have the right to assume the defense thereof with counsel of its own choosing. Any Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party except to the extent that (i) the employment thereof has been specifically authorized by the Parent in writing, (ii) the Parent has failed after a reasonable period of time following such Indemnified Party’s written request that it do so, to assume such defense and to employ counsel or assignment (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Custodial AgreementIndemnifying Party and the position of such Indemnified Party. The Indemnifying Party will not be liable to any Indemnified Party under this Agreement (i) for any settlement by an Indemnified Party effected without the Parent’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent, that a loss, claim, damage or liability is attributable to such Indemnified Party’s wrongful actions or omissions or gross negligence, or to such Indemnified Party’s breach of any of the representations, warranties, covenants or agreements made by such Indemnified Party in this Agreement or in the other Transaction Documents.

Indemnification of the Purchaser. In the event that the Custodian fails to produce a Mortgage Note, Assignment of Mortgage or any other document related to a Mortgage Loan that was in its possession pursuant Subject to Section 2 within five (5) Business Days after required or requested by 9.7(b), the Sellers shall indemnify, defend and hold harmless the Purchaser Indemnified Parties from and against any and all Losses which arise out of, or its designeeresult from, and providedthe following Tax matters (collectively, that the ‘‘Tax Matters’’): (i) Custodian previously delivered to any Tax in excess of amounts accrued in respect of such Tax on any Company's financial books and records (which accruals shall be made in accordance with Applicable GAAP and shall not reflect any of the Trustee transactions contemplated by this Agreement) payable by or the Master Servicer a Certification with respect to such document; (ii) such document is not outstanding pursuant to a request for release of documents and receipt in the form annexed hereto as Exhibit 3; and (iii) such document was held by the Custodian on behalf of the Trustee Sellers or any Sellers' Affiliates, or any Company, for any taxable period ending on or prior to the Closing Date (a "Custodial Delivery Failure"or for the portion ending on the Closing Date of any taxable period that includes but does not begin or end on the Closing Date), then (ii) any deficiencies in any Tax payable by, or on behalf of, the Custodian shall (a) Sellers or any Sellers' Affiliates, or any Company arising from any audit by any taxing agency or authority with respect to any missing Mortgage Noteperiod ending on or prior to the Closing Date (or for the portion ending on the Closing Date of any taxable period that includes but does not begin or end on the Closing Date), promptly deliver (iii) any claim or demand for reimbursement or indemnification resulting from any transfer by the Sellers prior to such Purchaser the Closing of any Tax benefits or its designee upon requestcredits to any other Person, (iv) one-half of any Transfer Taxes arising from the Transactions contemplated by this Agreement, (v) any Liability for Taxes as a Lost Note Affidavit in result of the form of Exhibit 7 annexed hereto Euro Cormar Separation and (b)with respect vi) any breach of any representation or warranty made by any Seller in Sections 4.18 and 5.17 (provided, that, to the extent that any missing document related such representation or warranty is qualified by immateriality, materiality, material adverse effect or any derivation of any of the foregoing, such qualifications shall be ignored for purposes of indemnification under this Section 9.6); provided, that the Purchaser shall not be entitled to such Mortgage Loan including but not limited to, recover more than the amount of any Loss due as a missing Mortgage Note, indemnify the Trustee in accordance with the succeeding paragraph result of bringing a claim for indemnification under more than one clause of this Section 25. The Custodian agrees to indemnify and hold the Purchaser9.6(a); provided, the Trustee and the Master Servicer harmless against any and all direct liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, including reasonable attorneys' feesfurther, that may be imposed on, incurred by, or asserted against it or them directly a ‘‘Loss’’ for purposes of this Section 9.6(a) only shall not include any amount of Tax to the extent attributable to a change by a Company after the Closing Date in a legally permissible method of tax accounting that was used by such Company consistently through the Closing Date (but a change after the Closing Date by any Company relating to or arising out the transfer pricing used in respect of such Custodial Delivery Failure. In no event shall the Custodian or its directors, officers, agents and employees be liable for any special, indirect or consequential damages from payment between any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility Companies shall not be viewed as a change in a legally permissible method of such damages. The foregoing indemnification shall survive any termination or assignment tax accounting for purposes of the Custodial Agreementpreceding proviso).

Indemnification of the Purchaser. In the event that the Custodian fails to produce a Mortgage Note, Assignment of Mortgage or any other document related to a Mortgage Loan that was in its possession pursuant to Section 2 within five two (52) Business Days after required or requested by the Purchaser or its designee(a "Custodial Delivery Failure"), and provided, that (i) Custodian previously delivered to the Trustee or the Master Servicer Purchaser a Certification Trust Receipt with respect to such document; (ii) such document is not outstanding pursuant to a request for release of documents and receipt in the form annexed hereto as Exhibit 3; and (iii) such document was held by assigned or sold to the Custodian on behalf of the Trustee (a "Custodial Delivery Failure")--------- Purchaser, then the Custodian shall (a) with respect to any missing Mortgage Note, promptly deliver to such Purchaser or its designee upon request, a Lost Note Affidavit in the form of Exhibit 7 10 annexed hereto and (b)with b) with respect to any missing ---------- document related to such Mortgage Loan including but not limited to, a missing Mortgage Note, (1) indemnify the Trustee Purchaser in accordance with the succeeding paragraph of this Section 2525 and, (2) at the Purchaser's option, at any time the long term obligations of the Custodian are rated below the second highest rating category of Xxxxx'x Investors Service or Standard and Poor's Ratings Group, obtain and maintain an insurance bond in the name of the Purchaser, and its successors in interest and assigns, insuring against any losses associated with the loss of such document, in an amount equal to the then outstanding principal balance of the Mortgage Loan or such lesser amount requested by the Purchaser in the Purchaser's sole discretion. The Custodian agrees to indemnify and hold the Purchaser, the Trustee Purchaser and the Master Servicer its designee harmless against any and all direct liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursementsdisbursements of any kind or nature whatsoever, including reasonable attorneys' attorney's fees, that may be imposed on, incurred by, or asserted against it or them directly in any way relating to or arising out of such Custodial Delivery Failure. In no event shall the Custodian or its directors, officers, agents and employees be liable for any special, indirect or consequential damages from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility of such damages. The foregoing indemnification shall survive any termination or assignment of the Custodial AgreementAgreement and the resignation or removal of the Custodian.

Indemnification of the Purchaser. In Subject to the limitations set forth in Section 11.3, each Seller and Shareholder, jointly and severally, shall be responsible for and shall indemnify and hold Purchaser, Castle Dental, Castle PC and their respective officers, directors, agents, employees, shareholders and Affiliates (the "Purchaser Indemnitees") harmless from and against any and all Damages suffered by any Purchaser Indemnitee as a result of, caused by, arising out of, or in any way relating to (a) any misrepresentation, breach of warranty, or nonfulfillment of any agreement or covenant on the part of any Seller or Shareholder under this Agreement or any agreement relating hereto or any misrepresentation in or omission from any list, schedule, certificate, or other instrument furnished or to be furnished to the Purchaser by any Seller pursuant to the terms of this Agreement, (b) Excluded Liabilities or (c) any reduction in Sellers' net current assets as of November 30, 1998, determined in accordance with Section 3.4, from Sellers' net current assets as of the Balance Sheet Date (excluding in each case Excluded Assets and Excluded Liabilities) resulting from reasons other than (x) normal fluctuations in the ordinary course of business, (y) actions otherwise authorized under the terms of this Agreement or (z) matters as to which Castle Dental, Castle PC or Purchaser had knowledge at the Closing Date (with any claim for Damages relating to (a), (b) and (c) being referred to hereinafter as a "claim"). Notwithstanding the foregoing, in the event that the Custodian fails at or prior to produce Closing, Purchaser, Castle PC or Castle Dental had knowledge that a Mortgage Note, Assignment representation or warranty of Mortgage a Seller or any Shareholder was untrue or that a covenant or other document related obligation of a Seller or Shareholder had been breached or would be untrue or would have been a breach at Closing if not cured prior to a Mortgage Loan that was in its possession pursuant to Section 2 within five (5) Business Days after required or requested by the Purchaser or its designee, and provided, that (i) Custodian previously delivered to the Trustee or the Master Servicer a Certification with respect to such document; (ii) such document is not outstanding pursuant to a request for release of documents and receipt in the form annexed hereto as Exhibit 3; and (iii) such document was held by the Custodian on behalf of the Trustee (a "Custodial Delivery Failure")Closing, then the Custodian shall (a) with respect to any missing Mortgage Note, promptly deliver to breach of such Purchaser representation or its designee upon request, a Lost Note Affidavit in warranty or breach of covenant or other obligation of such Seller or Shareholder under the form of Exhibit 7 annexed hereto and (b)with respect to any missing document related to such Mortgage Loan including but not limited to, a missing Mortgage Note, indemnify the Trustee in accordance with the succeeding paragraph terms of this Section 25. The Custodian agrees Agreement shall not be deemed to be a breach or violation of this Agreement and any such breach or violation of this Agreement shall be deemed to be waived and may not be the basis of a claim against the Sellers or the Shareholders pursuant to this Agreement; provided, however, that the limitations of this sentence shall not affect the Sellers' and Shareholders' obligations to indemnify and hold the harmless Purchaser, Castle PC or Castle Dental for Excluded Liabilities, for which the Trustee Sellers and the Master Servicer harmless against Shareholder shall remain responsible notwithstanding any and all direct liabilitiesknowledge of Purchaser, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses Castle PC or disbursements, including reasonable attorneys' fees, that may be imposed on, incurred by, or asserted against it or them directly relating to or arising out of such Custodial Delivery Failure. In no event shall the Custodian or its directors, officers, agents and employees be liable for any special, indirect or consequential damages from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility of such damages. The foregoing indemnification shall survive any termination or assignment of the Custodial AgreementCastle Dental.

Indemnification of the Purchaser. In The Parent, the event that Issuer and the Custodian fails to produce a Mortgage NoteSubsidiary Guarantors (each, Assignment of Mortgage or any other document related to a Mortgage Loan that was in its possession pursuant to Section 2 within five (5an “Indemnifying Party”) Business Days after required or requested by will jointly and severally indemnify and hold the Purchaser and its directors, managers, officers, shareholders, members, partners, employees and agents (each, an “Indemnified Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Indemnified Party may suffer or its designee, and provided, that (i) Custodian previously delivered incur as a result of or relating to the Trustee or the Master Servicer a Certification with respect to such document; (ii) such document is not outstanding pursuant to a request for release of documents and receipt in the form annexed hereto as Exhibit 3; and (iii) such document was held by the Custodian on behalf of the Trustee (a "Custodial Delivery Failure"), then the Custodian shall (a) any breach of any of the representations, warranties, covenants or agreements made by an Indemnifying Party in this Agreement or in the other Transaction Documents or (b) any action instituted against any Indemnified Party by any shareholder of an Indemnifying Party who is not an affiliate of the Purchaser, with respect to any missing Mortgage Note, promptly deliver to of the transactions contemplated by the Transaction Documents (unless such Purchaser or its designee action is based upon request, a Lost Note Affidavit in the form breach of Exhibit 7 annexed hereto and (b)with respect to any missing document related to such Mortgage Loan including but not limited to, a missing Mortgage Note, indemnify the Trustee in accordance with the succeeding paragraph of this Section 25. The Custodian agrees to indemnify and hold the Purchaser’s representation, warranties or covenants under any of the Trustee and Transaction Documents or any agreements or understandings the Master Servicer harmless against Purchaser may have with any and all direct liabilitiessuch shareholder or any violations by the Purchaser of state or federal securities laws or any conduct by the Purchaser which constitutes fraud, obligationsgross negligence, losseswillful misconduct or malfeasance); provided, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, including reasonable attorneys' feeshowever, that may be imposed on, incurred by, or asserted against it or them directly relating to or arising out of such Custodial Delivery Failure. In in no event shall the Custodian Parent, the Issuer or its directors, officers, agents and employees a Subsidiary Guarantor be liable for any specialindirect, indirect incidental, special or consequential damages from any or damages for loss of profits incurred by an Indemnified Party, whether in an action taken in contract or omitted to be taken by it or them hereunder or in connection herewith tort, even if the Parent, the Issuer and the Subsidiary Guarantors have been advised of the possibility of such damages. The foregoing indemnification If any action shall survive be brought against any termination Indemnified Party in respect of which indemnity may be sought pursuant to this Section 4.36, such Indemnified Party shall promptly notify the Parent in writing, and the Indemnifying Party shall have the right to assume the defense thereof with counsel of its own choosing. Any Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party except to the extent that (i) the employment thereof has been specifically authorized by the Parent in writing, (ii) the Parent has failed after a reasonable period of time following such Indemnified Party’s written request that it do so, to assume such defense and to employ counsel or assignment (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Custodial AgreementIndemnifying Party and the position of such Indemnified Party. The Indemnifying Party will not be liable to any Indemnified Party under this Agreement (i) for any settlement by an Indemnified Party effected without the Parent’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent, that a loss, claim, damage or liability is attributable to such Indemnified Party’s wrongful actions or omissions or gross negligence, or to such Indemnified Party’s breach of any of the representations, warranties, covenants or agreements made by such Indemnified Party in this Agreement or in the other Transaction Documents.