Common use of Indemnities by the Company Clause in Contracts

Indemnities by the Company. The Company will indemnify and hold harmless each seller of Registrable Shares, each underwriter of Registrable Shares, and each other person, if any, who controls any such seller or underwriter within the meaning of the Securities Act or the Securities Exchange Act of 1934 against any losses, claims, damages or liabilities, joint or several, to which such seller, underwriter or controlling person may become subject under the Securities Act, the Exchange Act, state securities or 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 including such Registrable Shares, any preliminary prospectus or final prospectus contained in such Registration Statement, any amendment or supplement to such Registration Statement, or any other disclosure document, or arise out of or are based upon the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and, the Company will reimburse each such seller, underwriter and each such controlling person for any legal or any other expenses reasonably incurred by such seller, underwriter or controlling person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon (a) 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 Company, in writing, relating to such seller by or on behalf of such seller, underwriter or controlling person specifically for use in the preparation thereof or (b) the failure of such seller to deliver copies of the prospectus in the manner required by the Securities Act.

Indemnities by the Company. The Company will indemnify and hold harmless each seller of Registrable Shares, each underwriter of Registrable Shares, Without limiting any other right which the Agent and each other personLender and each of their respective officers, if anydirectors, who controls any such seller employees and agents (each, an “Indemnified Party”) may have hereunder or underwriter within under applicable law, the meaning of the Securities Act or the Securities Exchange Act of 1934 Company hereby agrees to indemnify each Indemnified Party from and against any and all damages, losses, claims, damages liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or liabilitiesincurred by any of them, joint whether prior to or severalfrom and after the Closing Date, to which such sellerwhether direct, underwriter indirect or controlling person may become subject under the Securities Actconsequential, the Exchange Act, state securities or blue sky laws or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise arising out of or are based upon any untrue statement as a result of this Agreement or alleged untrue statement in respect of any material fact contained Receivable or any Contract, excluding, however, (a) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party as determined by a final judgment of a court of competent jurisdiction; or (b) any Excluded Taxes incurred by such Indemnified Party arising out of or as a result of this Agreement or in respect of any Receivable or any Contract; or (c) fees and other costs and expenses related to the assignment of a Lender’s rights and obligations under this Agreement as set forth in Section 13.9. Without limiting the foregoing (but subject to the restrictions described in the foregoing clauses (a), (b) and (c)), the Company will indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from any of the following: (i) reliance on any representation or warranty made by the Company (or any of its officers) under or in connection with this Agreement, any Monthly Report or any other information or report (except projections or any forward looking statements made in good faith) delivered by the Company pursuant hereto, which was false or incorrect in any Registration Statement material respect when made or deemed made; (ii) the failure by the Company to comply with any applicable law, rule, order or regulation with respect to any Loan Document and any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract, or performance under the Loan Documents, with any such applicable law, rule, order or regulation; (iii) the failure to maintain continuously, in favor of the Agent for the benefit of the Lenders, a security interest in the Collateral, free and clear of any Adverse Claim; (iv) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Collateral; (v) any dispute, claim, offset or defense (other than the bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Collateral (including a defense based on this Agreement, other Loan Document, such Registrable SharesReceivable or the related Contract not being a legal, any preliminary prospectus or final prospectus contained valid and binding obligation of such Obligor enforceable against it in such Registration Statement, any amendment or supplement to such Registration Statementaccordance with its terms), or any other disclosure documentclaim resulting from the sale of electricity, natural gas, or arise other goods or services related to such Receivable or related Contract, or the furnishing or failure to furnish such electricity, natural gas, or other goods or services; (vi) any products liability claim arising out of or are based upon the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and, the Company will reimburse each such seller, underwriter and each such controlling person for any legal or any other expenses reasonably incurred by such seller, underwriter or controlling person in connection with investigating goods or defending services which are the subject of any such loss, claim, damage, liability or actionContract; (vii) the commingling of Collections of Receivables at any time with other funds; provided, however, that the Company will not be liable in and (viii) any such case other matter relating to the extent that financing transactions contemplated by this Agreement or the other Loan Documents or by any such loss, claim, damage document executed in connection with the transactions contemplated by this Agreement or liability arises out of or is based upon (a) 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 Company, in writing, relating to such seller by or on behalf of such seller, underwriter or controlling person specifically for use in the preparation thereof or (b) the failure of such seller to deliver copies of the prospectus in the manner required by the Securities Actother Loan Documents.

Indemnities by the Company. The Company will indemnify and hold harmless each seller of Registrable Shares, each underwriter of Registrable Shares, Without limiting any other right which the Agent and each other personLender and each of their respective officers, if anydirectors, who controls any such seller employees and agents (each, an "Indemnified Party") may have hereunder or underwriter within under applicable law, the meaning of the Securities Act or the Securities Exchange Act of 1934 Company hereby agrees to indemnify each Indemnified Party from and against any and all damages, losses, claims, damages liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or liabilitiesincurred by any of them, joint whether prior to or severalfrom and after the Closing Date, to which such sellerwhether direct, underwriter indirect or controlling person may become subject under the Securities Actconsequential, the Exchange Act, state securities or blue sky laws or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise arising out of or are based upon any untrue statement as a result of this Agreement or alleged untrue statement in respect of any material fact contained Receivable or any Contract, excluding, however, (a) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party as determined by a final judgment of a court of competent jurisdiction; or (b) any Excluded Taxes incurred by such Indemnified Party arising out of or as a result of this Agreement or in respect of any Receivable or any Contract; or (c) fees and other costs and expenses related to the assignment of a Lender's rights and obligations under this Agreement as set forth in Section 13.9. Without limiting the foregoing (but subject to the restrictions described in the foregoing clauses (a), (b) and (c)), the Company will indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from any of the following: (i) reliance on any representation or warranty made by the Company (or any of its officers) under or in connection with this Agreement, any Monthly Report or any other information or report (except projections or any forward looking statements made in good faith) delivered by the Company pursuant hereto, which was false or incorrect in any Registration Statement material respect when made or deemed made; (ii) the failure by the Company to comply with any applicable law, rule, order or regulation with respect to any Loan Document and any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract, or performance under the Loan Documents, with any such applicable law, rule, order or regulation; NY3 - 380504.07 (iii) the failure to maintain continuously, in favor of the Agent for the benefit of the Lenders, a security interest in the Collateral, free and clear of any Adverse Claim; (iv) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Collateral; (v) any dispute, claim, offset or defense (other than the bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Collateral (including a defense based on this Agreement, other Loan Document, such Registrable SharesReceivable or the related Contract not being a legal, any preliminary prospectus or final prospectus contained valid and binding obligation of such Obligor enforceable against it in such Registration Statement, any amendment or supplement to such Registration Statementaccordance with its terms), or any other disclosure documentclaim resulting from the sale of electricity, natural gas, or arise other goods or services related to such Receivable or related Contract, or the furnishing or failure to furnish such electricity, natural gas, or other goods or services; (vi) any products liability claim arising out of or are based upon the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and, the Company will reimburse each such seller, underwriter and each such controlling person for any legal or any other expenses reasonably incurred by such seller, underwriter or controlling person in connection with investigating goods or defending services which are the subject of any such loss, claim, damage, liability or actionContract; (vii) the commingling of Collections of Receivables at any time with other funds; provided, however, that the Company will not be liable in and (viii) any such case other matter relating to the extent that financing transactions contemplated by this Agreement or the other Loan Documents or by any such loss, claim, damage document executed in connection with the transactions contemplated by this Agreement or liability arises out of or is based upon (a) 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 Company, in writing, relating to such seller by or on behalf of such seller, underwriter or controlling person specifically for use in the preparation thereof or (b) the failure of such seller to deliver copies of the prospectus in the manner required by the Securities Actother Loan Documents.

Indemnities by the Company. The Without limiting any other rights which the Agent, the Lenders or any of their respective Affiliates may have hereunder or under applicable law, the Company will hereby agrees to indemnify and hold harmless each seller of Registrable Sharesthe Agent, each underwriter of Registrable Shares, the Lenders and each other personof their respective Affiliates (each, if any, who controls any such seller or underwriter within the meaning an “Indemnified Party” for purposes of the Securities Act or the Securities Exchange Act of 1934 this Article VIII) from and against any and all damages, losses, claims, damages liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements awarded against or liabilitiesincurred by any of them arising out of or as a result of this Agreement or in respect of any of the Collateral, joint excluding, however, any such amount (a) to the extent resulting solely from gross negligence, bad faith or severalwillful misconduct on the part of an Indemnified Party and (b) to the extent comprising Excluded Taxes levied on the Indemnified Party (all of the foregoing being collectively referred to as “Indemnified Amounts”). Without limiting the foregoing, the Company shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from any of the following: (i) reliance on any representation or warranty made or deemed made by the Company, Mossimo Management (in its capacity as the Servicer or Manager hereunder), any Successor Servicer or Successor Manager or any of their officers under or in connection with this Agreement or any Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered; (ii) the failure by the Company, Mossimo Management (in its capacity as the Servicer or Manager hereunder), any Successor Servicer or Successor Manager to comply in all material respects with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any of the Collateral, or the nonconformity of any of the Collateral with any such Applicable Law; (iii) the failure to vest and maintain vested in the Agent, for the benefit of the Lenders, or to transfer to the Agent, for the benefit of the Lenders, a first priority perfected security interest (subject only to Permitted Liens) in the Collateral together or the Collections related thereto, free and clear of any Adverse Claim whether existing at the Closing Date or at any time thereafter; (iv) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral, whether at the Closing Date or at any subsequent time; (v) any dispute, claim, offset or defense (other than the discharge in bankruptcy of an Obligor) with respect to the payment of any amounts owing with respect to any Collateral (including a defense based on such License relating to such Collateral) not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms); (vi) any failure of the Company, Mossimo Management (in its capacity as the Servicer or Manager hereunder), any Successor Servicer or Successor Manager to perform its duties or obligations in accordance with the provisions of this Agreement; (vii) the failure of the Company to pay when due any taxes payable in connection with the Collateral; (viii) any repayment by the Agent or the Lenders of any amount previously distributed in payment of the Loan or payment of interest or Fees or any other amount due hereunder, in each case which amount the Agent or the Lenders believes in good faith is required to be repaid; (ix) the commingling by the Company or the Servicer of Collections at any time with other funds; (x) any investigation, litigation or proceeding related to this Agreement (or the Transaction Documents), or the use of proceeds of the Loan or the Collateral, or the Company’s, the Servicer’s or the Manager’s administration of the Collateral; (xi) any failure by the Company to give reasonably equivalent value to the Transferor in consideration for the transfer by the Transferor to the Company of any Asset or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including any provision of the Bankruptcy Code; and/or (xii) any failure of the Company or any of its agents or representatives to remit to the Servicer or the Collection Account, Collections remitted to the Company or any such agent or representative. Any amounts subject to the indemnification provisions of this Section 8.01 shall be paid by the Company to the Agent on behalf of the applicable Indemnified Party within five (5) Business Days following the Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Agent of such amounts). The Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 8.01, shall submit to the Company a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such sellerindemnification is requested, underwriter or controlling person may become subject under which certificate shall be conclusive absent demonstrable error. If the Securities Act, the Exchange Act, state securities or blue sky laws or otherwise, insofar as such losses, claims, damages or liabilities (or actions Company has made any payments 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 including such Registrable Shares, any preliminary prospectus or final prospectus contained in such Registration Statement, any amendment or supplement to such Registration Statement, or any other disclosure document, or arise out of or are based upon the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and, the Company will reimburse each such seller, underwriter and each such controlling person for any legal or any other expenses reasonably incurred by such seller, underwriter or controlling person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case Indemnified Amounts to the extent that Agent, on behalf of an Indemnified Party pursuant to this Section 8.01 and such Indemnified Party thereafter collects any of such lossamounts from others, claim, damage or liability arises out of or is based upon (a) any untrue statement or omission made in such Registration Statement, preliminary prospectus or prospectus, or any Indemnified Party will promptly repay such amendment or supplement, in reliance upon and in conformity with information furnished amounts collected to the Company, in writing, relating to such seller by or on behalf of such seller, underwriter or controlling person specifically for use in the preparation thereof or (b) the failure of such seller to deliver copies of the prospectus in the manner required by the Securities Actwithout interest.