THAT BECOME SUBJECT TO THE
LIEN IN FAVOR OF THE AGENT UPON ACQUISITION THEREOF), THE BORROWER AGENT WILL
NOTIFY THE CO-COLLATERAL AGENTS THEREOF, AND, IF REQUESTED BY EITHER OF THE
CO-COLLATERAL AGENTS, THE BORROWERS WILL CAUSE SUCH ASSETS TO BE SUBJECTED TO A
LIEN SECURING THE SECURED OBLIGATIONS AND WILL TAKE, AND CAUSE THE LOAN PARTIES
THAT ARE SUBSIDIARIES TO TAKE, SUCH ACTIONS AS SHALL BE NECESSARY OR REASONABLY
REQUESTED BY ANY CO-COLLATERAL AGENT TO GRANT AND PERFECT SUCH LIENS, INCLUDING
ACTIONS DESCRIBED IN PARAGRAPH (C) OF THIS SECTION, ALL AT THE EXPENSE OF THE
LOAN PARTIES.
(E)
IF, AT ANY TIME AND FROM TIME TO TIME AFTER THE EFFECTIVE DATE,
SUBSIDIARIES THAT ARE NOT LOAN PARTIES BECAUSE THEY ARE IMMATERIAL SUBSIDIARIES
COMPRISE IN THE AGGREGATE MORE THAN 5% OF CONSOLIDATED TOTAL ASSETS AS OF THE
END OF THE MOST RECENTLY ENDED FISCAL QUARTER OF THE COMPANY OR MORE THAN 5% OF
EBITDA FOR THE PERIOD OF FOUR CONSECUTIVE FISCAL QUARTERS AS OF THE END OF THE
MOST RECENTLY ENDED FISCAL QUARTER OF THE COMPANY, THEN THE COMPANY SHALL, NOT
LATER THAN 45 DAYS AFTER THE DATE BY WHICH FINANCIAL STATEMENTS FOR SUCH QUARTER
ARE REQUIRED TO BE DELIVERED PURSUANT TO THIS AGREEMENT, CAUSE ONE OR MORE SUCH
SUBSIDIARIES TO BECOME ADDITIONAL LOAN PARTIES (NOTWITHSTANDING THAT SUCH
SUBSIDIARIES ARE, INDIVIDUALLY, IMMATERIAL SUBSIDIARIES) SUCH THAT THE FOREGOING
CONDITION CEASES TO BE TRUE.
(F)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 5.11,
REAL PROPERTY REQUIRED TO BE MORTGAGED UNDER THIS SECTION 5.11 SHALL BE LIMITED
TO REAL PROPERTY LOCATED IN THE U.S. THAT ARE FULL-LINE NEIMAN MARCUS RETAIL
STORES OWNED IN FEE BY A LOAN PARTY OR LEASED BY A LOAN PARTY PURSUANT TO A
FINANCEABLE LEASE OR OTHER REAL PROPERTY OWNED IN FEE BY A LOAN PARTY HAVING A
FAIR MARKET VALUE AT THE TIME OF THE ACQUISITION THEREOF OF $5,000,000 OR MORE
(PROVIDED THAT THE COST OF PERFECTING SUCH LIEN IS NOT UNREASONABLE IN RELATION
TO THE BENEFITS TO THE LENDERS OF THE SECURITY AFFORDED THEREBY IN THE AGENT'S
REASONABLE JUDGMENT AFTER CONSULTATION WITH THE BORROWER AGENT; PROVIDED FURTHER
THAT THE COMPANY SHALL USE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT ALL
LEASES ENTERED INTO AFTER THE EFFECTIVE DATE BY THE BORROWERS AND THE OTHER LOAN
PARTIES WILL BE FINANCEABLE LEASES).
FOR ANY EXISTING MORTGAGE FOR WHICH THE
ACTIONS DESCRIBED IN SECTION 4.01(P) SHALL NOT HAVE BEEN COMPLETED ON OR PRIOR
TO THE EFFECTIVE DATE (AFTER THE COMPANY SHALL HAVE USED COMMERCIALLY REASONABLE
EFFORTS TO DO SO), THE COMPANY SHALL COMPLETE ALL SUCH ACTIONS DESCRIBED IN
SECTION 4.01(P) WITHIN 90 DAYS AFTER THE EFFECTIVE DATE (OR SUCH LATER DATE AS
MAY BE AGREED BY THE AGENT FROM TIME TO TIME).
(G)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE
LOAN PARTIES SHALL NOT BE REQUIRED TO INCLUDE AS COLLATERAL ANY EXCLUDED ASSETS
(AS DEFINED IN THE SECURITY AGREEMENT).
96
SECTION 5.12.
Maintenance of Corporate Separateness.
Each Loan
Party will, and will cause each Subsidiary to, satisfy customary corporate or