Settlement Payment. (A) Deutsche Bank shall pay or cause to be paid the Settlement Amount into a mutually acceptable escrow account within fifteen (15) days of executing this Agreement. The terms of such account shall be negotiated by the Parties in good faith. All interest earned by any portion of the Settlement Amount paid into the Settlement Fund shall be added to and become part of the Settlement Fund. The settlement is non-recapture, i.e., it is not a “claims-made” settlement and, if this Settlement Agreement receives Final Approval, Deutsche Bank shall not be entitled to return of any of the consideration paid under any circumstances. Except in the event of termination pursuant to Section 21(A), Deutsche Bank shall not have a reversionary interest in the Settlement Fund. (B) The Escrow Agent shall only act in accordance with instructions mutually agreed upon by the Parties in writing, except as otherwise provided in this Agreement or by Order of the Court. (C) Deutsche Bank has denied any liability, fault, or wrongdoing of any kind in connection with the allegations in the Action, and as such neither the Settlement Agreement, nor any of its terms or provisions, nor any of the negotiations, term sheets, or proceedings connected with it, shall be construed as an admission or concession by Deutsche Bank of the truth of any of the allegations in the Action, or of any liability, fault, or wrongdoing of any kind. Other than payment of the Settlement Amount in accordance with the provisions of Section 3(A) above, neither Deutsche Bank nor any of the DB Released Parties shall have any liability, responsibility, or obligation to pay or reimburse any other amounts to any Person, including but not limited to Representative Plaintiffs, Interim Co-Lead Counsel, any member of the Settlement Class, or any Plaintiff Releasing Parties in connection with, relating to, or arising out of the Action, the Plaintiff Released Claims, or this Settlement Agreement. Deutsche Bank shall have no liability, obligation or responsibility whatsoever for making a payment into the Settlement Fund for any other Non-Settling Defendant. Deutsche Bank shall have no liability, obligation, or responsibility with respect to the investment, allocation, use, disbursement, administration, or oversight of the Settlement Fund.
Appears in 2 contracts
Samples: Settlement Agreement, Settlement Agreement
Settlement Payment. (A) Deutsche Bank shall pay or cause a. MCC shall, during the term and subject to be paid the Settlement Amount into a mutually acceptable escrow account within fifteen (15) days terms and conditions of executing this Agreement. The terms of , pay to the MERCHANT at such account shall be negotiated time/s determined by the Parties in good faith. All interest earned by any portion of the Settlement Amount paid into the Settlement Fund shall be added MCC from time to and become part of the Settlement Fund. The settlement is non-recapture, i.e., it is not a “claims-made” settlement and, if this Settlement Agreement receives Final Approval, Deutsche Bank shall not be entitled to return of any of the consideration paid under any circumstances. Except in the event of termination pursuant to Section 21(A), Deutsche Bank shall not have a reversionary interest in the Settlement Fund.
(B) The Escrow Agent shall only act in accordance with instructions mutually agreed upon by the Parties in writing, except as otherwise provided in this Agreement or by Order of the Court.
(C) Deutsche Bank has denied any liability, fault, or wrongdoing of any kind in connection with the allegations in the Action, and as such neither the Settlement Agreement, nor any of its terms or provisions, nor any of the negotiations, term sheets, or proceedings connected with it, shall be construed as an admission or concession by Deutsche Bank of the truth of any of the allegations in the Action, or of any liability, fault, or wrongdoing of any kind. Other than payment of the Settlement Amount time in accordance with the provisions of Section 3(A) aboveprevailing practice at the relevant time, neither Deutsche Bank nor any the total amount of the DB Released Parties Credit Card transactions effected with the MERCHANT which have been so submitted less: (i) the aggregate Discount Rate on all such Credit Card transactions; (ii) the government taxes; (iii) the aggregate refunds or rebates granted to credit cardholders, if applicable; and (iv) all other amounts payable or due to MCC under this Agreement or otherwise.
b. All payments made to the MERCHANT shall have any liabilitybe made available to the MERCHANT by check, responsibilitydrawn in favor of the MERCHANT, or obligation credited to pay the MERCHANT’s account with any branch of the Metropolitan Bank & Trust Company (“MBTC”) or reimburse with other banks, subject to MCC’s right at its discretion at any time to change the mode of such payment to the MERCHANT. For crediting to the MERCHANT’s account with other amounts banks, the relevant transfer fees and other related charges shall be borne by the MERCHANT.
c. All approval codes given to the MERCHANT does not guarantee outright payment, there may be instance/s of fraud and/or disputes that may preclude such payment. If the MERCHANT does not raise any objection to the amount of payment by MCC within thirty (30) days after the date MCC issues the check or credits the MERCHANT’s account, the MERCHANT shall be deemed to have accepted such amount as correct; Provided that nothing in this Section shall preclude MCC from correcting any error or discrepancy in such amount paid.
d. Subject to proof to the contrary, any payment by MCC under this Agreement, whether or not the MERCHANT has complied with all its obligations under this Agreement, shall be made without prejudice to any Personclaims, including but rights or remedies that MCC may have against the MERCHANT, and shall not limited to Representative Plaintiffs, Interim Co-Lead Counsel, constitute any member admission or acknowledgment by MCC that the MERCHANT has duly performed its obligations under this Agreement or of the Settlement Class, or any Plaintiff Releasing Parties in connection with, relating to, or arising out correctness of the Action, the Plaintiff Released Claims, or this Settlement Agreement. Deutsche Bank shall have no liability, obligation or responsibility whatsoever for making a payment into the Settlement Fund for any other Non-Settling Defendant. Deutsche Bank shall have no liability, obligation, or responsibility with respect to the investment, allocation, use, disbursement, administration, or oversight of the Settlement Fundamount so paid.
Appears in 1 contract
Samples: Merchant Agreement
Settlement Payment. (A) Deutsche Bank shall pay or cause to be paid the Settlement Amount into a mutually acceptable escrow account within fifteen (15) days of executing this Agreement. The terms of such account shall be negotiated by the Parties in good faith. All interest earned by any portion In consideration of the Settlement Amount paid into the Settlement Fund shall be added to terms and become part conditions set forth herein including discharge of the Settlement Fund. The settlement is non-recaptureMonies Owed, i.e.SDL hereby agrees to pay one hundred percent (100%) of all economic proceeds received, it is not a “claims-made” settlement andderived, if this Settlement Agreement receives Final Approval, Deutsche Bank shall not be entitled to return of any or arising from the sale of the consideration paid under Inventory or any circumstancespart thereof (the “Settlement Payment”) to NMG. Except in the event For purposes of termination pursuant to Section 21(A), Deutsche Bank shall not have a reversionary interest in the Settlement Fund.
(B) The Escrow Agent shall only act in accordance with instructions mutually agreed upon by the Parties in writing, except as otherwise provided in this Agreement or by Order of the Court.
(C) Deutsche Bank has denied any liability, fault, or wrongdoing of any kind in connection with the allegations in the Action, and as such neither the Settlement Agreement, nor “economic proceeds” shall mean all consideration received, whether cash or non-cash proceeds, from the sale of any or all items in the Inventory. The Settlement Payment shall be paid as follows and be subject to the following restrictions:
i. Within two (2) business days of its terms SDL’s receipt of economic proceeds from the sale of any part of Inventory, SDL shall deliver to NMG such economic proceeds, until such time as the Inventory is exhausted. At the time of delivery of each Settlement Payment, SDL shall also deliver accounting documents showing each transaction involving any Inventory, including quantity and price of each sale.
ii. SDL shall sell each item in Inventory at a price determined by NMG. (the “Stated Price”). SDL shall not discount or provisionsmodify the Stated Price, nor any except with express prior written permission from NMG. SDL shall only accept payment in good and immediately available funds for the sale of the negotiationsInventory, term sheetsand shall not accept any form of non-cash payment for the Inventory except with the express prior written permission of NMG.
iii. On the first (1st) business day of each calendar month, or proceedings connected with itSDL shall provide to NMG an updated, shall be construed as an admission or concession by Deutsche Bank and then-current spreadsheet of the truth remaining quantity of any of the allegations each item in the Action, or of any liability, fault, or wrongdoing of any kindInventory.
iv. Other than payment an arms-length transaction and sale of the Settlement Amount Inventory, SDL shall not in accordance any manner dispose of, transfer, bequeath, assign, encumber, or in any other manner divest itself of any item in Inventory, except with the provisions express prior written permission of Section 3(A) aboveNMG. In addition, neither Deutsche Bank nor any SDL shall not physically move the location of the DB Released Parties Inventory unless as part of a sale or with the express prior written permission of NMG. If that certain brand director agreement entered into between the parties dated November 30, 2019 (the “Brand Director Agreement”) should expire or be terminated for any reason by either party, it shall not adversely impact or affect NMG’s rights to the Settlement Payment and the Inventory; provided further that if the Brand Director Agreement is terminated by either party, NMG shall have any liability, responsibility, or obligation the right to pay or reimburse any other amounts direct SDL to any Person, including but not limited transport the remaining Inventory to Representative Plaintiffs, Interim Co-Lead Counsel, any member another licensed distributor of the Settlement Class, or any Plaintiff Releasing Parties in connection with, relating to, or arising out of the Action, the Plaintiff Released Claims, or this Settlement Agreement. Deutsche Bank shall have no liability, obligation or responsibility whatsoever for making a payment into the Settlement Fund for any other Non-Settling Defendant. Deutsche Bank shall have no liability, obligation, or responsibility with respect to the investment, allocation, use, disbursement, administration, or oversight of the Settlement FundNMG’s choice.
Appears in 1 contract
Settlement Payment. (A) Deutsche Bank shall pay or cause a. MCC shall, during the term and subject to be paid the Settlement Amount into a mutually acceptable escrow account within fifteen (15) days terms and conditions of executing this Agreement. The terms of , pay to the MERCHANT at such account shall be negotiated time/s determined by the Parties in good faith. All interest earned by any portion of the Settlement Amount paid into the Settlement Fund shall be added MCC from time to and become part of the Settlement Fund. The settlement is non-recapture, i.e., it is not a “claims-made” settlement and, if this Settlement Agreement receives Final Approval, Deutsche Bank shall not be entitled to return of any of the consideration paid under any circumstances. Except in the event of termination pursuant to Section 21(A), Deutsche Bank shall not have a reversionary interest in the Settlement Fund.
(B) The Escrow Agent shall only act in accordance with instructions mutually agreed upon by the Parties in writing, except as otherwise provided in this Agreement or by Order of the Court.
(C) Deutsche Bank has denied any liability, fault, or wrongdoing of any kind in connection with the allegations in the Action, and as such neither the Settlement Agreement, nor any of its terms or provisions, nor any of the negotiations, term sheets, or proceedings connected with it, shall be construed as an admission or concession by Deutsche Bank of the truth of any of the allegations in the Action, or of any liability, fault, or wrongdoing of any kind. Other than payment of the Settlement Amount time in accordance with the provisions of Section 3(A) aboveprevailing practice at the relevant time, neither Deutsche Bank nor any the total amount of the DB Released Parties Card Transactions effected with the MERCHANT which have been so submitted less: (i) the aggregate Discount Rate on all such Card Transactions; (ii) the government taxes; (iii) the aggregate refunds or rebates granted to Cardholders, if applicable; and (iv) all other amounts payable or due to MCC under this Agreement or otherwise.
b. All payments made to the MERCHANT shall have any liabilitybe made available to the MERCHANT by check, responsibilitydrawn in favor of the MERCHANT, or obligation credited to pay the MERCHANT’s account with any branch of the Metropolitan Bank & Trust Company (“MBTC”) or reimburse with other banks, subject to MCC’s right at its discretion at any time to change the mode of such payment to the MERCHANT. For crediting to the MERCHANT’s account with other amounts banks, the relevant transfer fees and other related charges shall be borne by the MERCHANT.
c. All approval codes given to the MERCHANT does not guarantee outright payment, there may be instance/s of fraud and/or disputes that may preclude such payment. If the MERCHANT does not raise any objection to the amount of payment by MCC within thirty (30) days after the date MCC issues the check or credits the MERCHANT’s account, the MERCHANT shall be deemed to have accepted such amount as correct; Provided that nothing in this Section shall preclude MCC from correcting any error or discrepancy in such amount paid.
d. Subject to proof to the contrary, any payment by MCC under this Agreement, whether or not the MERCHANT has complied with all its obligations under this Agreement, shall be made without prejudice to any Personclaims, including but rights or remedies that MCC may have against the MERCHANT, and shall not limited to Representative Plaintiffs, Interim Co-Lead Counsel, constitute any member admission or acknowledgment by MCC that the MERCHANT has duly performed its obligations under this Agreement or of the Settlement Class, or any Plaintiff Releasing Parties in connection with, relating to, or arising out correctness of the Action, the Plaintiff Released Claims, or this Settlement Agreement. Deutsche Bank shall have no liability, obligation or responsibility whatsoever for making a payment into the Settlement Fund for any other Non-Settling Defendant. Deutsche Bank shall have no liability, obligation, or responsibility with respect to the investment, allocation, use, disbursement, administration, or oversight of the Settlement Fundamount so paid.
Appears in 1 contract
Samples: Merchant Agreement
Settlement Payment. (A) Deutsche Bank shall pay or cause a. MCC shall, during the term and subject to be paid the Settlement Amount into a mutually acceptable escrow account within fifteen (15) days terms and conditions of executing this Agreement. The terms of , pay to the MERCHANT at such account shall be negotiated time/s determined by the Parties in good faith. All interest earned by any portion of the Settlement Amount paid into the Settlement Fund shall be added MCC from time to and become part of the Settlement Fund. The settlement is non-recapture, i.e., it is not a “claims-made” settlement and, if this Settlement Agreement receives Final Approval, Deutsche Bank shall not be entitled to return of any of the consideration paid under any circumstances. Except in the event of termination pursuant to Section 21(A), Deutsche Bank shall not have a reversionary interest in the Settlement Fund.
(B) The Escrow Agent shall only act in accordance with instructions mutually agreed upon by the Parties in writing, except as otherwise provided in this Agreement or by Order of the Court.
(C) Deutsche Bank has denied any liability, fault, or wrongdoing of any kind in connection with the allegations in the Action, and as such neither the Settlement Agreement, nor any of its terms or provisions, nor any of the negotiations, term sheets, or proceedings connected with it, shall be construed as an admission or concession by Deutsche Bank of the truth of any of the allegations in the Action, or of any liability, fault, or wrongdoing of any kind. Other than payment of the Settlement Amount time in accordance with the provisions of Section 3(A) aboveprevailing practice at the relevant time, neither Deutsche Bank nor any the total amount of the DB Released Parties Credit Card transactions effected with the MERCHANT which have been so submitted less: (i) the aggregate Discount Rate on all such Credit Card transactions; (ii) the government taxes; (iii) the aggregate refunds or rebates granted to credit cardholders, if applicable; and (iv) all other amounts payable or due to MCC under this Agreement or otherwise.
b. As applicable, all payments made to the MERCHANT shall have any liabilitybe made available to the MERCHANT by check, responsibilitydrawn in favor of the MERCHANT, or obligation credited to pay the MERCHANT’s account with any branch of the Metropolitan Bank & Trust Company (“MBTC”) or reimburse with other banks, subject to MCC’s right at its discretion at any time to change the mode of such payment to the MERCHANT. For crediting to the MERCHANT’s account with other amounts banks, the relevant transfer fees and other related charges shall be borne by the MERCHANT.
c. All approval codes given to the MERCHANT does not guarantee outright payment. There may be instance/s of fraud and/or disputes that may preclude such payment. If the MERCHANT does not raise any objection to the amount of payment by MCC within thirty (30) days after the date MCC issues the check or credits the MERCHANT’s account, the MERCHANT shall be deemed to have accepted such amount as correct; Provided that nothing in this Section shall preclude MCC from correcting any error or discrepancy in such amount paid.
d. Subject to the submission of proof to the contrary, any payment by MCC under this Agreement, whether or not the MERCHANT has complied with all its obligations under this Agreement, shall be made without prejudice to any Personclaims, including but rights or remedies that MCC may have against the MERCHANT, and shall not limited to Representative Plaintiffs, Interim Co-Lead Counsel, constitute any member admission or acknowledgment by MCC that the MERCHANT has duly performed its obligations under this Agreement or of the Settlement Class, or any Plaintiff Releasing Parties in connection with, relating to, or arising out correctness of the Action, the Plaintiff Released Claims, or this Settlement Agreement. Deutsche Bank shall have no liability, obligation or responsibility whatsoever for making a payment into the Settlement Fund for any other Non-Settling Defendant. Deutsche Bank shall have no liability, obligation, or responsibility with respect to the investment, allocation, use, disbursement, administration, or oversight of the Settlement Fundamount so paid.
Appears in 1 contract
Samples: Merchant Agreement
