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 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 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 Subject to the event that limitations set forth in Section 5.02 below, the Custodian fails Company and the Stockholders each hereby jointly and individually agree to produce a Mortgage Noteindemnify, 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 designeedefend, and providedhold harmless the Purchaser, that its officers, directors, employees, agents, attorneys, and shareholders (ithe "Indemnitees" or an "Indemnitee") Custodian previously delivered to the Trustee from and against all demands, claims, actions, or the Master Servicer a Certification with respect to such document; causes of action, assessments, losses, taxes, damages, liabilities, costs, and expenses, including, without limitation, interest, penalties, and reasonable attorneys' fees and expenses (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 collectively "Custodial Delivery FailureDamages"), then the Custodian shall asserted against, assessed upon, resulting to, imposed upon, or incurred by an Indemnitee by reason of or resulting from (a) with respect a material breach of any representation, warranty, covenant, obligation, or agreement of the Company or the Stockholders contained in or made pursuant to this Agreement, including the Schedules and Exhibits hereto, or any missing Mortgage Notefacts or circumstances constituting such a breach; or (b) the operation of the Company's business, promptly deliver to such Purchaser or its designee upon requestincluding, 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 Noteany products sold or services rendered, or any Tax liability for any period, prior to the Effective Date (collectively the "Indemnified Claims"). In addition, the Stockholders agree to indemnify the Trustee Indemnitee for such Damages as they are incurred by the Indemnitee irrespective of any ongoing or continuing legal proceedings and the relative timeframes and issues associated with such proceedings, or the relative success or nonsuccess the Indemnitee may experience in accordance with such proceedings; and the succeeding paragraph Purchaser shall have the right to offset, withhold, and deduct such Damages from any payment of the Earn Out Amount required to be made by the Purchaser pursuant to Section 1.03 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 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 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 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 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.

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).