Neiman Marcus 2009 Annual Report Download - page 461

nature, including reasonable attorneys' fees and expenses (collectively, "Damages"), which are caused or incurred by, result from,
arise out of or relate to:
(a) the breach of any of Servicer's representations or warranties made in this Agreement;
(b) the failure by Servicer to perform any of its covenants or agreements contained in this Agreement, except to
the extent such failure to perform is caused by (i) the failure of any of the Bank Parties to perform its obligations under any
Transaction Document or (ii) any actions or omission by Servicer taken or not taken at any Bank Parties' written request or direction
pursuant to any Transaction Document;
(c) any fines or penalties imposed by a Governmental Authority on the basis of a Regulatory Failure;
(d) any lawsuit, legal proceeding, arbitration proceeding, claim, dispute, complaint or setoff by a Cardholder
with respect to anything actually or allegedly done or not done by Servicer in connection with the Services, excluding anything
actually or allegedly done or not done by Servicer that (A) is required or expressly permitted under the Risk Management Policies, the
Operating Procedures or any Transaction Document or (B) is done at the express direction of Bank.
(e) any lawsuit, legal proceeding, arbitration proceeding or claim by a third party alleging any material
inaccuracy in the information provided pursuant to Section 2.08.
Section 7.02. Procedure for Indemnification.
(a) In case any claim is made, or any suit or action is commenced against Bank in respect of which
indemnification may be sought by it under this Section 7.02, Bank shall promptly give Servicer notice thereof and Servicer shall be
entitled to participate in the defense thereof and, with prior written notice to Bank given not later than twenty (20) days after the
delivery of the applicable notice from Bank, to assume, at Servicer's expense, the defense thereof, with counsel reasonably satisfactory
to Bank. After notice from Servicer to Bank of its election so to assume the defense thereof, Servicer shall not be liable to Bank under
this Section for any attorneys' fees or other expenses subsequently incurred by Bank in connection with the defense thereof, except as
set forth in Section 7.02(b), other than reasonable costs of investigation.
(b) Bank shall have the right to employ its own counsel if Servicer elects to assume such defense, but the fees
and expenses of such counsel shall be at Bank's expense, unless (i) the employment of such counsel has been authorized in writing by
Servicer, (ii) Servicer has not employed counsel to take charge of the defense within twenty (20) days after delivery of the applicable
notice or, having elected to assume such defense, thereafter ceases its defense of such action, or (iii) Bank has reasonably concluded
that the interests of the Parties are conflicting such that it would be inappropriate for the same counsel to represent both parties (in
which case Servicer shall not have the right to direct the defense of such action on behalf of Bank), in any of which events the
attorneys' fees and expenses of counsel to Bank shall be borne by Servicer.
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