Neiman Marcus 2008 Annual Report Download - page 351

the 12-month period ending on such date. Such pro forma financial statements have been prepared in good faith by the Borrower,
based on the assumptions used to prepare the pro forma financial information contained in the Information Memorandum (which
assumptions are believed by the Borrower on the date hereof and on the Closing Date to be reasonable), are based on the best
information available to the Borrower as of the date of delivery thereof, accurately reflect all adjustments required to be made to give
effect to the Transactions and present fairly on a pro forma basis the estimated consolidated financial position of the Borrower and its
consolidated Subsidiaries as of such date and for such period, assuming that the Transactions had actually occurred at such date or at
the beginning of such period, as the case may be.
(c) No event, change or condition has occurred that has had, or would reasonably be expected to have, a Material
Adverse Effect, since July 30, 2005.
SECTION 3.05. Properties. (a) As of the date of this Agreement, Schedule 3.05(a) sets forth the address of each
parcel of real property (or each set of parcels that collectively comprise one operating property) that is owned or leased by each Loan
Party, together with a list of the lessors with respect to all such leased property. Schedule 3.05(a) also identifies the principal place of
business and chief executive office of each Loan Party. The books and records of each Loan Party, and all of their respective chattel
paper and records of Accounts, are maintained exclusively at such locations. There is no location at which any Loan Party has any
Collateral (except for vehicles and inventory in transit in the ordinary course of business) other than those locations identified on
Schedule 3.05(a).
(b) Each of the Borrower and each of the Subsidiaries has good and insurable fee simple title to, or valid leasehold
interests in, or easements or other limited property interests in, all its real properties (including all Mortgaged Properties) and has good
and marketable title to its personal property and assets, in each case, except for defects in title that do not materially interfere with its
ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes and except
where the failure to have such title would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect. All such properties and assets are free and clear of Liens, other than Liens (i) permitted by Section 6.02 or (ii) arising by
operation of law (which Liens, in the case of this clause (ii) do not materially interfere with the ability of Holdings, the Borrower or
the relevant Subsidiary to carry on its business as now conducted or to utilize the affected properties or assets for their intended
purposes).
(c) Each of the Borrower and each of the Subsidiaries has complied with all obligations under all leases to which it
is a party, except where the failure to comply would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, and all such leases are in full force and effect, except leases in respect of which the failure to be in full force and effect
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Each of the Borrower and each
of the Subsidiaries enjoys peaceful and undisturbed possession under all such leases, other than leases in respect of which the failure
to enjoy peaceful and undisturbed possession would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(d) As of the Closing Date, none of Holdings, the Borrower or any Subsidiary has received any notice of, nor has
any knowledge of, any pending or contemplated condemnation proceeding affecting any of the Mortgaged Properties or any sale or
disposition thereof in lieu of condemnation.
(e) To the Borrower's knowledge, as of the Closing Date, none of the Borrower or any Subsidiary is obligated under
any right of first refusal, option or other contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest
therein.
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