Neiman Marcus 2008 Annual Report Download - page 375

of Indebtedness or issuance of Disqualified Stock or Preferred Stock pursuant to Section 6.01(b)(xxii)(B)) (other
than by a Restricted Subsidiary and other than by any Excluded Contributions), plus
(D) to the extent not already included in Consolidated Net Income, 100% of the aggregate amount received
in cash and the fair market value, as determined in good faith by the Borrower, of marketable securities or other
property received after the Closing Date by means of (1) the sale or other disposition (other than to the Borrower or
a Restricted Subsidiary) of Restricted Investments made by the Borrower or any Restricted Subsidiary and
repurchases and redemptions of such Restricted Investments from the Borrower or any Restricted Subsidiary and
repayments of loans or advances that constitute Restricted Investments by the Borrower or any Restricted Subsidiary
or (2) the sale (other than to the Borrower or a Restricted Subsidiary) of the Capital Stock of an Unrestricted
Subsidiary (other than Kate Spade) or a distribution from an Unrestricted Subsidiary (other than an Extraordinary
Distribution) (other than in each case to the extent the Investment in such Unrestricted Subsidiary was made by the
Borrower or a Restricted Subsidiary pursuant to clauses (ix) or (xiii) of paragraph (b) of this Section 6.04 or to the
extent such Investment constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary (other
than an Extraordinary Distribution), plus
(E) in the case of the redesignation of an Unrestricted Subsidiary (other than Kate Spade) as a Restricted
Subsidiary after the Closing Date, the fair market value of the Investment in such Unrestricted Subsidiary, as
determined by the Borrower in good faith or if, in the case of an Unrestricted Subsidiary, such fair market value may
exceed $125,000,000, in writing by an Independent Financial Advisor, at the time of the redesignation of such
Unrestricted Subsidiary as a Restricted Subsidiary, other than an Unrestricted Subsidiary to the extent the
Investment in such Unrestricted Subsidiary was made by the Borrower or a Restricted Subsidiary pursuant to
clauses (ix) or (xiii) of paragraph (b) of this Section 6.04 or to the extent such Investment constituted a Permitted
Investment.
(b) The provisions of paragraph (a) of this Section 6.04 shall not prohibit:
(i) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date
of declaration such payment would have complied with the provisions of this Agreement;
(ii) (A) the redemption, repurchase, retirement or other acquisition of any Equity Interests ("Retired Capital
Stock") or Subordinated Indebtedness of the Borrower or any Equity Interests of any direct or indirect parent company of the
Borrower, in exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary)
of, Equity Interests of the Borrower (in each case, other than any Disqualified Stock) ("Refunding Capital Stock") and (B) if
immediately prior to the retirement of Retired Capital Stock, the declaration and payment of dividends thereon was permitted
under clause (vi) of this paragraph (b), the declaration and payment of dividends on the Refunding Capital Stock (other than
Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity
Interests of any direct or indirect parent company of the Borrower) in an aggregate amount per year no greater than the
aggregate amount of dividends per annum that was declarable and payable on such Retired Capital Stock immediately prior
to such retirement;
77