EXHIBIT 10.117
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("AGREEMENT") is made as of April 10,
2003, by and between Seven Licensing Company, LLC, a California limited
liability company "INDEMNITOR"), and Tarrant Apparel Group, a California
corporation ("TARRANT").
RECITALS
A. The Company desires to contract with Tarrant for Tarrant or
its Affiliates to design, have designed, manufacture, have manufactured, and/or
import apparel and apparel merchandise bearing the trademark "SEVEN7" for sale
in the United States (the "WORK").
B. The Company and Tarrant recognize that there is existing
trademark litigation over use of the trademark "Seven7" in the United States and
elsewhere.
C. In order to induce Tarrant to perform the Work, Indemnitor
desires to indemnify Tarrant and certain other indemnified parties against any
third party claim or action brought against Tarrant or such other parties for
intellectual property infringement arising from performance of the Work.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Indemnitor and
Tarrant, intending to be legally bound, hereby agree as follows:
1. CERTAIN DEFINITIONS. When used herein, the following terms
shall have the following meanings:
"ACTION" means any action, appeal, petition, plea, charge,
complaint, claim, suit, demand, litigation, arbitration, mediation, hearing,
inquiry, investigation or similar event, occurrence, or proceeding.
"AFFILIATE" with respect to any specified person, means a
person that, directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with, such specified
person. For this definition, "control" (and its derivatives) means the
possession, directly or indirectly, or as trustee or executor, of the power to
direct or cause the direction of the management and policies of a person,
whether through ownership of voting equity interests, as trustee or executor, by
contract or credit arrangements or otherwise.
"DAMAGES" means all damages, losses (including any diminution
in value and the loss of any available tax deduction), Liabilities, payments,
amounts paid in settlement, obligations, fines, penalties, expenses, costs
associated with obtaining injunctive relief, and other
costs, including reasonable fees and expenses of attorneys, accountants and
other professional advisors, and of expert witnesses and other out-of-pocket
costs of investigation, preparation, and litigation in connection with any
Action or threatened Action.
"INDEMNIFIED PARTIES" means collectively Tarrant and its
officers, directors, managers, employees, agents, representatives, and each of
Tarrant's Affiliates.
2. INDEMNIFICATION. Indemnitor shall indemnify and hold harmless
the Indemnified Parties and each of them from and pay any and all Damages
directly or indirectly resulting from, relating to, arising out of, or
attributable to any third party Action against an Indemnified Party for
infringement or alleged infringement of intellectual property rights in the
trademark "SEVEN7" (or any derivation thereof) resulting from performance of the
Work.
3. INDEMNIFICATION PROCEDURES. If any Action is commenced in
which any Indemnified Party is a party that may give rise to a claim for
indemnification against the Indemnitor (an "INDEMNIFICATION CLAIM"), then such
Indemnified Party shall promptly give notice to the Indemnitor. The failure to
give such notice shall not affect whether the Indemnitor is liable for
reimbursement hereunder unless such failure has resulted in the loss of material
substantive rights with respect to the Indemnitor's ability to defend such
Indemnification Claim. The Indemnitor may contest and defend such
Indemnification Claim so long as the Indemnitor: (i) has a reasonable basis for
concluding that such defense may be successful, (ii) diligently contests and
defends such Indemnification Claim, and (iii) acknowledges in writing that it is
obligated to provide indemnification with respect to such Indemnification Claim.
Notice of the intention to so contest and defend shall be given by the
Indemnitor to the Indemnified Party within 20 business days after the
Indemnified Party's notice of such Indemnification Claim (but, in all events, at
least 30 business days prior to the date that an answer to such Indemnification
Claim is due to be filed). Such contest and defense shall be conducted by
reputable attorneys employed by Indemnitor and approved by the Indemnified Party
(which approval will not be unreasonably withheld or delayed). The Indemnified
Party shall be entitled, at its own cost and expense (which expense shall not
constitute Damages unless the Indemnified Party reasonably determines that
Indemnitor is not adequately representing or, because of a conflict of interest,
may not adequately represent, the interests of the Indemnified Parties, and has
provided Indemnitor with notice of such determination, and then only to the
extent that such expenses are reasonable), to participate in such contest and
defense and to be represented by attorneys of its or their own choosing. If the
Indemnified Party elects to participate in such defense, the Indemnified Party
will cooperate with Indemnitor in the conduct of such defense. Neither the
Indemnified Party nor Indemnitor may concede, settle or compromise any
Indemnification Claim without the consent of the other party, which consent will
not be unreasonably withheld or delayed in light of all factors of importance to
such party. Notwithstanding the foregoing, if Indemnitor fails to acknowledge in
writing their obligation to provide indemnification in respect of such
Indemnification Claim, to assume the defense thereof with counsel reasonably
satisfactory to the Indemnified Party or to diligently contest and defend such
Indemnification Claim, then the Indemnified Party alone shall be entitled to
contest, defend and settle such Indemnification Claim in the first instance (in
which case, all expenses incurred in connection therewith shall constitute
Damages) and, only if the Indemnified Party chooses not to contest, defend or
settle such Indemnification Claim, Indemnitor shall then have the right to
contest and defend (but not settle) such Indemnification Claim.
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4. THIRD PARTY BENEFICIARIES. Indemnitor agrees that each
Indemnified Party is a third party beneficiary with respect to each provision of
this Agreement applicable to such Indemnified Party and may enforce each of
these provisions as if such Indemnified Party was a party to this Agreement.
5. MISCELLANEOUS.
5.1. ENTIRE AGREEMENT. This Agreement contains the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements, written or oral, with respect thereto.
5.2. GOVERNING LAW; CONSENT TO JURISDICTION. This
Agreement and the obligations of the parties hereunder shall be governed by and
construed in accordance with the laws of the State of California without giving
effect to any choice of law principles that may require the application of any
other laws. Each party hereby consents to the non-exclusive jurisdiction of any
governmental body, arbitrator, or mediator in which an Action is brought against
any Indemnified Party for purposes of any Indemnification Claim that an
Indemnified Party may have under this Agreement with respect to such Action or
the matters alleged therein.
5.3. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
5.4. AMENDMENTS AND WAIVERS. No amendment, modification,
waiver, replacement, termination, or cancellation of any provision of this
Agreement shall be valid, unless the same shall be in writing and signed by all
of the parties to this Agreement.
5.5. SEVERABILITY. If this Agreement or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Company shall nevertheless indemnify the Indemnified Parties to the full
extent permitted by any applicable portion of this Agreement that shall not have
been invalidated, and the balance of this Agreement not so invalidated shall be
enforceable in accordance with its terms.
5.6. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon the Company and its successors and assigns, and shall inure to the
benefit of the Indemnified Parties and their respective estate, heirs, legal
representatives and assigns.
5.7. ATTORNEYS' FEES. In the event that any Action is
instituted by an Indemnified Party under this Agreement to enforce or interpret
any of the terms hereof, the Indemnified Party shall be entitled to be paid all
court costs and expenses, including reasonable attorneys' fees, incurred by the
Indemnified Party with respect to such Action, unless as a part of such Action,
a court of competent jurisdiction determines that each of the material
assertions made by the Indemnified Party as a basis for such Action were not
made in good faith or were frivolous.
5.8. NOTICE. All notices, requests, demands, claims, and
other communications hereunder shall be in writing, addressed to the intended
recipient as set forth below, and shall be deemed to have been duly given when
actually received or refused by the intended recipient:
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If to Indemnitor:
Seven Licensing Company, LLC
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Fax: (000) 000-0000
If to any Indemnified Party:
Tarrant Apparel Group
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
Any party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
means (including personal delivery, expedited courier, messenger service,
registered or certified mail, return receipt requested and postage prepaid). Any
party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other parties
notice in the manner herein set forth.
5.9. CONTINUATION OF INDEMNIFICATION. All agreements and
obligations of the Company contained herein shall continue during the period
that Tarrant or any of its Affiliates performs Work for the Company and shall
continue thereafter so long as any Indemnified Party shall be subject to any
possible claim or threatened, pending or completed Action by reason of the fact
that Tarrant or any of its Affiliates was performing the Work referred to
herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SEVEN LICENSING COMPANY,
a California limited liability company
By: /S/ XXXXXX XXXX
-------------------------------
Xxxxxx Xxxx
Its: Manager
TARRANT APPAREL GROUP,
a California corporation
By: /S/ XXXX XXX
-------------------------------
Xxxx Xxx
Its: President
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