Neiman Marcus 2008 Annual Report Download - page 371

junior interest shall be no more favorable to the beneficiaries thereof than the terms contained in the Intercreditor Agreement;
or (ii) such Initial Lien is a Permitted Collateral Lien;
(b) in the case of the Revolving Facility First Lien Collateral, any Initial Lien if (i) the Obligations or the applicable
Loan Guaranty of a Loan Party, as the case may be, are equally and ratably secured on a second-priority basis by such
Revolving Facility First Lien Collateral until such time as such Initial Lien is released (other than through the exercise of
remedies with respect thereto) or (ii) such Initial Lien is a Permitted Lien; and
(c) in the case of any other asset or property, any Initial Lien if (i) the Obligations or the applicable Loan Guaranty
of a Loan Party, as the case may be, are equally and ratably secured with (or on a senior basis to, in the case such Initial Lien
secures any Subordinated Indebtedness) the obligations secured by such Initial Lien or (ii) such Initial Lien is a Permitted
Lien.
Any Lien created for the benefit of the Secured Parties pursuant to clause (b) or (c) of the preceding paragraph shall
provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and
discharge of the Initial Lien (other than through the exercise of remedies with respect thereto).
SECTION 6.03. Merger, Consolidation or Sale of All or Substantially All Assets.
(a) The Borrower shall not consolidate or merge with or into or wind up into (whether or not the Borrower is the surviving entity), or
sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related
transactions, to any Person unless:
(i) the Borrower is the surviving corporation or the Person formed by or surviving any such consolidation or
merger (if other than the Borrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall
have been made is a corporationorganized or existing under the laws of the United States of America, any state thereof, the
District of Columbia, or any territory thereof (the Borrower or such Person, as the case may be, being herein called the
"Successor Borrower");
(ii) the Successor Borrower, if other than the Borrower, expressly assumes all the obligations of the Borrower
under this Agreement and the other Loan Documents pursuant to supplements to the Loan Documents or other documents or
instruments in form reasonably satisfactory to the Agent;
(iii) immediately after such transaction, no Default exists;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the
beginning of the applicable four-quarter period, (A) the Successor Borrower would be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 6.01(a) or (B) the Fixed Charge
Coverage Ratio for the Successor Borrower and the Restricted Subsidiaries on a consolidated basis would be greater than
such ratio for the Borrower and the Restricted Subsidiaries immediately prior to such transaction;
(v) each Loan Guarantor, unless it is the other party to the transactions described above (in which case clause (i)
(B) of paragraph (c) of this Section 6.03 or clause (ii) of paragraph (e) of this Section 6.03, as applicable, shall apply) shall
have by supplement to the Loan Documents confirmed that its guarantee of the Obligations shall apply to such Person's
obligations under the Loan Documents and the Loans; and
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