EXHIBIT 10.15
NEIMAN MARCUS GROUP
CREDIT CARD MASTER TRUST
SERIES 2000-1
$225,000,000 Class A Floating Rate Asset Backed
Certificates, Series 2000-1
CLASS A PURCHASE AGREEMENT
July 12, 2000
Deutsche Bank Securities Inc.,
31 West 52nd Street
New York, New York 10019
As Representative of the Class A Initial Purchasers
Ladies and Gentlemen:
1. Introductory. The Neiman Marcus Group, Inc., a Delaware
corporation ("NMG") and Bergdorf Goodman, Inc., a New York corporation
("Bergdorf Goodman") propose to sell, transfer and convey receivables (the
"Receivables") generated by a portfolio of certain consumer revolving credit
card accounts and non-card installment accounts and other rights to Neiman
Marcus Funding Corporation, a Delaware corporation and a wholly owned
subsidiary of NMG (the "Seller"). The Seller from time to time will transfer
and convey the Receivables to the Neiman Marcus Group Credit Card Master Trust
(the "Trust"), and the Seller proposes to cause the Trust to sell to Deutsche
Bank Securities Inc. and Chase Securities Inc. (each an "Initial Purchaser"
and, collectively, the "Initial Purchasers"), for whom you are acting as a
representative (the "Representative"), $225,000,000 Class A Floating Rate
Asset Backed Certificates, Series 2000-1 (the "Class A Certificates") in the
Trust. The Receivables will be conveyed to the Seller (i) by NMG pursuant to
the Receivables Purchase Agreement, dated as of March 1, 1995 and as amended
and restated as of July 3, 2000 (the "NMG Receivables Purchase Agreement"),
between NMG and the Seller and (ii) by Bergdorf Goodman pursuant to the
Receivables Purchase Agreement, dated as of July 3, 2000 (the "Bergdorf
Receivables Purchase Agreement" and together with the NMG Receivables Purchase
Agreement, the "Receivables Purchase Agreements") between Bergdorf Goodman and
the Seller, and will be transferred from the Seller to the Trust pursuant to
(i) the amended and restated Pooling and Servicing Agreement, dated as of
July 3, 2000 (the "Pooling and Servicing Agreement"), among NMG, the Seller
and The Bank of New York, as trustee (the "Trustee"), and (ii) the Series
2000-1 Supplement to the Pooling and Servicing Agreement, dated on or about
July 21, 2000 (the "Supplement"), among NMG, the Seller and the Trustee. The
Class A Certificates, together with the Class B and Class C Certificates and
the Seller Certificate that will initially be retained by the Seller, will be
issued pursuant to the Pooling and Servicing Agreement and the Supplement.
The Class A Certificates may only be resold to (i) "qualified
institutional buyers" ("QIBs") in reliance upon Rule 144A ("Rule 144A") of the
Securities Act of 1933, as amended (the "Securities Act"), (ii) non-U.S.
persons outside the United States, as defined by Regulation S of the
Securities Act ("Regulation S") in a transaction meeting the requirements of
Regulation S, (iii) persons in the United States pursuant to another exemption
from registration under the Securities Act and who have delivered an opinion
of counsel in form satisfactory to the Trustee and the Seller stating that the
purchase is being made pursuant to an exemption from the registration
requirements of the Securities Act and (iv) the Seller. In connection with
the sale of the Class A Certificates, Seller has prepared (a) a preliminary
offering memorandum dated July 7, 2000 (the "Preliminary Offering Memorandum")
and (b) a final offering memorandum dated July 12, 2000 (the "Final Offering
Memorandum") in form and substance satisfactory to the Initial Purchasers.
All references to the Final Offering Memorandum shall be deemed to include all
amendments and supplements thereto.
This Class A Purchase Agreement shall hereinafter be referred to
as this "Agreement." This Agreement, the Receivables Purchase Agreements, the
Pooling and Servicing Agreement and the Supplement shall collectively
hereinafter be referred to as the "Basic Documents." Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed thereto in
the Pooling and Servicing Agreement and Supplement.
2. Representations and Warranties of NMG and the Seller. NMG
and the Seller hereby jointly and severally represent and warrant to, and
agree with, the Initial Purchasers that:
(a) The Final Offering Memorandum will not, as of the date
thereof and as of the Closing Date, contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading; provided, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and
in conformity with information relating to any Initial Purchaser
furnished to the Seller by such Initial Purchaser expressly for
use therein.
(b) As of the Closing Date, the representations and
warranties of NMG and the Seller in the Basic Documents will be
true and correct in all material respects.
(c) As of the Closing Date, each consent, approval,
authorization or order of, or filing with, any court or
governmental agency or body which is required to be obtained or
made by NMG or the Seller for the consummation of the transactions
contemplated by this Agreement and the other Basic Documents shall
have been obtained, except as otherwise provided in the Basic
Documents.
(d) Each of NMG and the Seller has been duly organized and
is validly existing as a corporation in good standing under the
laws of Delaware and each of NMG and the Seller is duly qualified
to do business and is in good standing in each jurisdiction which
requires such qualification wherein it owns or leases material
properties or conducts material business. Neither NMG nor the
Seller is in violation of its charter or by-laws or in default in
the performance or observance of any obligation, agreement,
covenant or condition contained in any agreement or instrument to
which it is a party or by which it or its properties are bound
which would have a material adverse effect on the transactions
contemplated herein or in any other Basic Document. The execution,
delivery and performance of each Basic Document, and the issuance
and sale by the Seller of the Class A Certificates, and compliance
with the terms and provisions thereof will not, subject to
obtaining any consents or approvals as may be required under the
securities or "Blue Sky" laws of various jurisdictions, result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over NMG, the Seller or any of their respective
properties or any agreement or instrument to which NMG or the
Seller is a party or by which NMG or the Seller is bound or to
which any of the properties of NMG or the Seller is subject, or
the charter or by-laws of NMG or the Seller and each of NMG and
the Seller have corporate power to enter into each Basic Document
to which it is a party and to consummate the transactions
contemplated hereby and thereby.
(e) This Agreement has been duly authorized, executed and
delivered by NMG and the Seller and constitutes a legal, valid and
binding agreement enforceable against NMG and the Seller in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium,
receivership, conservatorship or other similar laws, regulations
or procedures of general applicability relating to or affecting
enforcement of the rights of creditors, or by general equity
principles and the discretion of the court before which any
proceeding is brought (regardless of whether enforceability is
considered in a proceeding in equity or at law) and public policy
under applicable securities laws.
(f) Each Basic Document, when executed and delivered as
contemplated hereby and thereby, will have been duly authorized,
executed and delivered by, NMG and the Seller and, when so
executed and delivered, will constitute a legal, valid and binding
agreement enforceable against NMG and the Seller in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, receivership,
conservatorship or other similar laws, regulations or procedures
of general applicability relating to or affecting enforcement of
the rights of creditors, or by general equity principles and the
discretion of the court before which any proceeding is brought
(regardless of whether enforceability is considered in a
proceeding in equity or at law) and public policy under applicable
securities laws.
(g) As of the Closing Date, the Class A Certificates will
have been duly and validly authorized by the Seller and, when
executed and authenticated as specified in the Pooling and
Servicing Agreement, will be validly issued and outstanding and
will be entitled to the benefits set forth in the Pooling and
Servicing Agreement.
(h) There are no actions, proceedings or investigations
now pending against NMG or the Seller or, to the best knowledge of
NMG and the Seller, threatened against NMG or the Seller (A) that
are required to be disclosed in the Preliminary Offering
Memorandum or the Final Offering Memorandum, other than those
disclosed therein, or (B)(1) asserting the invalidity of any Basic
Document or the Class A Certificates, (2) seeking to prevent the
issuance of the Class A Certificates or the consummation of any of
the transactions contemplated by the Basic Documents, (3) that
might materially and adversely affect the performance by NMG or
the Seller of its obligations under, or the validity or
enforceability of, any of the Basic Documents or the Class A
Certificates, or (4) seeking to affect adversely the federal
income tax attributes of the Class A Certificates as described in
the Final Offering Memorandum under "U.S. Federal Income Tax
Consequences."
(i) Any taxes, fees and other governmental charges that
are assessed and due in connection with the execution, delivery
and issuance of each Basic Document shall have been paid by NMG or
the Seller at or prior to the Closing Date to the extent required
to be so paid at or prior to the Closing Date under applicable
law.
(j) Each of NMG and the Seller possesses all material
licenses, certificates, authorities or permits issued by the
appropriate state, federal or foreign regulatory agencies or
bodies deemed by such corporation to be reasonably necessary to
conduct the business now operated by it and as described in the
Final Offering Memorandum, and neither NMG nor the Seller has
received notice of proceedings relating to the revocation or
modification of, or notice of its failure to obtain, any such
license, certificate, authority or permit which, singly or in the
aggregate, if the subject of any unfavorable decision, ruling or
finding, would materially and adversely affect the conduct of the
business, operations, financial condition or income of NMG or the
Seller.
(k) Neither the Trust nor the Seller is subject to
registration as an "investment company" under the Investment
Company Act of 1940, as amended (the "1940 Act").
(l) On or before the Closing Date, NMG and the Seller
shall have caused their respective computer records to be marked
to reflect the conveyances of the Receivables effected by the
Receivables Purchase Agreements and the Pooling and Servicing
Agreement and to show the Trust's interest in the Receivables, and
from and after the Closing Date neither NMG nor the Seller shall
take any action inconsistent with the Trust's interest in such
Receivables, other than as permitted by the Receivables Purchase
Agreements or the Pooling and Servicing Agreement and Supplement.
(m) Assuming compliance by the Initial Purchasers with the
offering restrictions set forth herein and in the Final Offering
Memorandum, it is not necessary in connection with the offer, sale
and delivery of the Class A Certificates to or by the Initial
Purchasers in the manner contemplated by this Agreement to
register the Class A Certificates under the Securities Act.
(n) None of NMG, the Seller, any of their Affiliates (as
defined in Rule 501(b) of Regulation D under the Securities Act
("Regulation D")) or, to NMG's or the Seller's knowledge, the
Trust has directly or through any agent (i) sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect
of, any "security" (as defined in the Securities Act) that is or
will be integrated with the sale of the Class A Certificates in a
manner that would require the registration under the Securities
Act of the offering of the Class A Certificates or (ii) assuming
the accuracy of the representations and warranties of the Initial
Purchasers in Section 3, engaged in any form of general
solicitation or general advertising in connection with the
offering or sale of the Class A Certificates in the United States
(as those terms are used in Regulation D) or in any manner
involving a public offering within the meaning of Section 4(2) of
the Securities Act.
(o) None of NMG, the Seller nor any of their Affiliates
has directly or through any agent (it being understood that NMG
and the Seller make no representation and warranty in this regard
with respect to the Initial Purchasers) engaged in any "directed
selling efforts" (as defined in Rule 902(c) under Regulation S)
with respect to the Class A Certificates. NMG, the Seller, their
Affiliates and any agent acting on behalf of any of them (it being
understood that NMG and the Seller make no representation or
warranty in this regard with respect to the Initial Purchasers)
have complied with the "offering restrictions" (as defined in Rule
902(g) under Regulation S) with respect to Class A Certificates
sold outside the United States.
(p) The Class A Certificates will not be, on the Closing
Date, of the same class (as defined in Rule 144A) as securities
listed on a national securities exchange registered under
Section 6 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or quoted in a U.S. automated interdealer
quotation system.
(q) None of NMG, the Seller, any of their Affiliates, to
NMG's or the Seller's knowledge, the Trust or any Person acting on
behalf of any of them made offers or sales of securities under
circumstances that would require registration of the Class A
Certificates under the Securities Act.
3. Representations and Warranties of the Initial Purchasers.
Each Initial Purchaser, severally but not jointly, represents and agrees that:
(a) It is a QIB and is purchasing for its own account (and
not for the account of others) or as a fiduciary or agent for
others (which others are also QIBs). Each Initial Purchaser is
aware that it (or any account for which it is purchasing) may be
required to bear the economic risk of an investment in the Class A
Certificates for an indefinite period, and it (or such account) is
able to bear such risk for an indefinite period.
(b) It will not sell, pledge or otherwise transfer any
Class A Certificate to any person unless either (i) such sale,
pledge or other transfer is made to NMG or the Seller, (ii) so
long as the Class A Certificates are eligible for resale pursuant
to Rule 144A under the Securities Act, such sale, pledge or other
transfer is made to a person whom it reasonably believes is a QIB
acting for its own account (and not for the account of others) or
as a fiduciary or agent for others (which others also are QIBs) to
whom notice is given that the sale, pledge or transfer is being
made in reliance on Rule 144A, (iii) such sale, pledge or other
transfer is made outside the United States in compliance with
Regulation S under the Securities Act or (iv) such sale, pledge or
other transfer is made in the United States pursuant to another
exemption from registration under the Securities Act and in such
case, (A) the Trustee will require that the prospective seller and
the prospective transferee certify to the Trustee and Seller in
writing the facts surrounding such transfer, which certification
will be in form and substance satisfactory to the Trustee, NMG and
the Seller, and (B) the Trustee will require a written opinion of
counsel (which will not be at the expense of NMG, Seller or the
Trustee) satisfactory to Seller and the Trustee to the effect that
such transfer will not violate the Securities Act. With respect
to offers and sales outside the United States, as described in
clause 3(c)(iii) above, each Initial Purchaser, severally but not
jointly, represents and agrees that:
(i) it understands that no action has been or will
be taken by NMG or the Seller that would permit a public
offering of the Class A Certificates, or possession or
distribution of the Preliminary Offering Memorandum or the
Final Offering Memorandum or any other offering or publicity
material relating to the Class A Certificates, in any
country or jurisdiction where action for that purpose is
required;
(ii) it will comply with all applicable laws and
regulations in each jurisdiction in which it acquires,
offers, sells or delivers Class A Certificates or has in its
possession or distributes the Preliminary Offering
Memorandum or the Final Offering Memorandum or any such
other material, in all cases at its own expense;
(iii) it understands that the Class A Certificates
have not been and will not be registered under the
Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S under the
Securities Act or pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of
the Securities Act;
(iv) it has offered the Class A Certificates and will
offer and sell the Class A Certificates (x) as part of its
distribution at any time and (y) otherwise until 40 days
after the later of the date upon which the offering of the
Class A Certificates commenced to persons other than
distributors in reliance upon Regulation S and the Closing
Date, only in accordance with Rule 903 of Regulation S.
Accordingly, neither such Initial Purchaser, nor any of its
Affiliates, nor any persons acting on its behalf has engaged
or will engage in any directed selling efforts (within the
meaning of Regulation S) with respect to the Class A
Certificates, and such Initial Purchaser, its Affiliates and
any such persons have complied and will comply with the
offering restrictions requirement of Regulation S; and
(v) it agrees that, at or prior to confirmation of
sales of the Class A Certificates, it will have sent to each
distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Class A
Certificates from it during the distribution compliance
period (as defined in Regulation S) a confirmation or notice
to substantially the following effect:
"THIS CERTIFICATE (OR ITS PREDECESSOR) WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAW OF ANY STATE AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
UNLESS REGISTERED PURSUANT TO OR EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT AND ANY
OTHER APPLICABLE SECURITIES LAW. EACH PURCHASER
OF THIS CERTIFICATE IS HEREBY NOTIFIED THAT THE
SELLER OF THIS CERTIFICATE MAY BE RELYING ON THE
EXEMPTIONS FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A AND
REGULATIONS THEREUNDER."
(c) The Class A Certificates may not be purchased by or
transferred to any "employee benefit plan" within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") (whether or not subject to ERISA, and
including, without limitation, foreign or government plans) or by
any "plan" described in Section 4975(e)(1) of the Internal Revenue
Code of 1986, as amended, or any entity whose underlying assets
include plan assets by reason of a plan's investment in such
entity (each, a "Plan"), except for an insurance company using the
assets of its general account that represents and warrants that,
at the time of acquisition and throughout the period it holds the
Class A Certificates (i) it is eligible for and meets the
requirements of Department of Labor Prohibited Transaction Class
Exemption 95-60, (ii) less than 25% of the assets of such account
are (or represent) assets of a Plan, and (iii) it is not a service
provider to the Trust, or an affiliate of a service provider to
the Trust, and would not otherwise be excluded under
2510.3-101(f)(1).
(d) It understands that each Class A Certificate will bear
a legend or legends substantially in the following form unless the
Seller determines otherwise, consistent with applicable law:
"THIS CERTIFICATE (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
UNITED STATES PERSONS, EXCEPT AS SET FORTH IN THE NEXT
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) (A "QIB"), (B) IT HAS
ACQUIRED THIS CERTIFICATE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT OR (C) IT IS AN
"INSTITUTIONAL ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION
D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THIS CERTIFICATE EXCEPT (A) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A UNDER THE SECURITIES
ACT, (B) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES
ACT, (C) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT, (D) TO AN INSTITUTIONAL ACCREDITED INVESTOR
THAT, IN THE CASE OF THIS CLAUSE (D), PRIOR TO
SUCH TRANSFER, FURNISHES THE TRUST AND THE
SELLER A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS CERTIFICATE (THE FORM OF WHICH
CAN BE OBTAINED FROM THE TRUST AND THE SELLER)
AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF CERTIFICATES LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE
TO THE NEIMAN MARCUS GROUP, INC., THE SELLER,
THE TRUST AND BERGDORF GOODMAN, INC., THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES
ACT, OR (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT AND,
IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION,
(3) REPRESENTS THAT EITHER (A) IT IS NOT ACQUIRING
THE CERTIFICATES WITH THE ASSETS OF A BENEFIT
PLAN OR (B) ITS PURCHASE AND HOLDING OF THE
CERTIFICATES WILL NOT RESULT IN A NONEXEMPT
PROHIBITED TRANSACTION UNDER SECTION 406(a) OF
ERISA OR SECTION 4975 OF THE CODE, AND
(4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS CERTIFICATE OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND
"UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY
RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE
POOLING AGREEMENT UNDER WHICH THIS CERTIFICATE WAS
ISSUED CONTAINS A PROVISION REQUIRING THE TRUST AND
THE SELLER TO REFUSE TO REGISTER ANY TRANSFER OF THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING."
Terms used in this Section 3 and not otherwise defined in this Agreement
have the meanings given to them by Regulation S.
4. Purchase, Sale and Delivery of Class A Certificates. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Seller agrees to
sell to the Initial Purchasers, and the Initial Purchasers agree, severally
and not jointly, to purchase from the Seller, the respective aggregate
principal amount of the Class A Certificates set forth below opposite the
names of the Initial Purchasers. The Class A Certificates are to be purchased
at the purchase price of 99.65% of the aggregate principal amounts thereof.
Initial Purchaser Principal Amount
of Class A Certificates
Deutsche Bank Securities Inc. $168,750,000
Chase Securities Inc. 56,250,000
------------
Total $225,000,000
The Seller will deliver the Class A Certificates to the Initial
Purchasers against payment of the purchase price therefor in immediately
available funds to the order of the Seller at the office of Mayer, Brown &
Platt, 190 South LaSalle Street, Chicago, Illinois at 10:00 A.M., Chicago
time, on July 21, 2000, or at such other time not later than seven full
Business Days thereafter as the Initial Purchasers and the Seller determine,
such time being herein referred to as the "Closing Date." Each of the Class A
Certificates will be initially represented by one or more certificates (the
"DTC Securities") registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of the
DTC Securities will be represented by book entries on the records of DTC and
participating members thereof. Definitive certificates evidencing the Class A
Certificates will be available only under the limited circumstances specified
in the Pooling and Servicing Agreement. Such certificates will be made
available for examination and packaging by the Initial Purchasers no later
than 12:00 noon, Chicago time, on the first business day prior to the Closing
Date.
5. Resale by the Initial Purchasers. The Initial Purchasers
propose to offer the Class A Certificates for resale upon the terms set forth
in this Agreement, the Preliminary Offering Memorandum and the Final Offering
Memorandum.
6. Certain Agreements of NMG and the Seller. NMG and the Seller
jointly and severally covenant and agree with the Initial Purchasers that:
(a) So long as any of the Class A Certificates are
outstanding, the Seller will furnish to the Initial Purchasers
copies of all reports or other communications (financial or other)
furnished to holders of the Class A Certificates.
(b) If, at any time prior to the completion of the initial
placement of the Class A Certificates, any event shall occur as a
result of which it is necessary to amend or supplement the Final
Offering Memorandum in order to make the statements therein, in
the light of the circumstances when the Final Offering Memorandum
is delivered to a purchaser, not misleading, or if it is necessary
to amend or supplement the Final Offering Memorandum to comply
with law, the Seller will forthwith prepare and furnish, at the
expense of the Seller, to the Initial Purchasers and to any other
Persons (whose names and addresses the Initial Purchasers will
furnish to the Seller) to which Class A Certificates may have been
sold by the Initial Purchasers and to any other Person upon
request, such amendments or supplements to the Final Offering
Memorandum as may be necessary so that the statements in the Final
Offering Memorandum as so amended or supplemented will not, in the
light of the circumstances when the Final Offering Memorandum is
delivered to a purchaser, be misleading or so that the Final
Offering Memorandum will comply with law.
(c) The Seller and NMG shall furnish copies of the Final
Offering Memorandum to the Initial Purchasers at such times and in
such quantities as the Initial Purchasers may reasonably request.
(d) So long as any of the Class A Certificates are
outstanding, the Seller will deliver to the Initial Purchasers (i)
as soon as available, copies of all reports required to be
delivered to holders pursuant to Article III of the Pooling and
Servicing Agreement and Section 5.2 of the Supplement; (ii) as
soon as available, copies of each document relating to the Trust
required to be filed with the Commission pursuant to the
Securities Exchange Act of 1934, as amended, or any order of the
Commission thereunder, and (iii) such other information concerning
the Trust, NMG, the Seller or the Class A Certificates as the
Initial Purchasers may reasonably request from time to time.
(e) In order to render the Class A Certificates eligible
for resale pursuant to Rule 144A under the Act, while any of the
Class A Certificates remain outstanding, NMG and the Seller shall
make available, upon request, to any holder of Class A
Certificates or prospective purchaser of Class A Certificates the
information required by Rule 144A(d)(4) under the Securities Act,
unless NMG or the Seller furnishes information to the Securities
and Exchange Commission in accordance with Rule 12g3-2(b) or
pursuant to Section 13 or 15(d) of the Exchange Act.
(f) The Seller and NMG each agree that they will not and
will cause their affiliates (as defined in Rule 501(b) of
Regulation D) not to solicit any offer to buy or make any offer or
sale of, or otherwise negotiate in respect of, certificates if, as
a result of the doctrine of "integration" referred to in Rule 502
under the Securities Act, such offer or sale would render invalid
(for the purpose of (i) the sale of the Class A Certificates by
the Trust to the Initial Purchasers, (ii) the resale of the Class
A Certificates by the Initial Purchasers to subsequent purchasers
or (iii) the resale of the Class A Certificates by such subsequent
purchasers to others) the exemption from the registration
requirements of the Securities Act provided by Section 4(2)
thereof, by Rule 144A or by Regulation S thereunder or otherwise.
(g) None of NMG, the Seller or any of their affiliates (as
defined in Rule 501(b) of Regulation D) will directly or through
any agent, assuming the accuracy of the representations and
warranties of the Initial Purchasers in Section 3: (i) engage in
any form of general solicitation or general advertising (as those
terms are used in Regulation D) in connection with the offering or
sale of the Class A Certificates in the United States or in any
manner involving a public offering within the meaning of Section
4(2) of the Securities Act or (ii) engage in any "directed selling
efforts" (as defined in Rule 902(c) under Regulations S) with
respect to the Class A Certificates. NMG, the Seller and their
affiliates (as defined in Rule 501(b) of Regulation D) and any
agent acting on their behalf, assuming the accuracy of the
representations and warranties of the Initial Purchasers in
Section 3, will comply with the "offering restrictions" (as
defined in Rule 902(g) under Regulation S) with respect to any
Class A Certificates sold outside the United States.
(h) The Seller will pay all expenses incident to the
performance of its obligations under this Agreement, including (i)
the printing (or other reproducing) of the Preliminary Offering
Memorandum and the Final Offering Memorandum; (ii) the reproducing
of the Basic Documents; (iii) the preparation, issuance and
delivery of the certificates evidencing the Class A Certificates
to the Initial Purchasers; (iv) the fees of DTC in connection with
the bookentry registration of the Class A Certificates; (v) the
fees and disbursements of (A) Mayer, Brown & Platt, Ropes & Gray
and the Seller's accountants and (B) the Trustee and its counsel;
(vi) the printing (or otherwise reproducing) and delivery to the
Initial Purchasers of copies of the Preliminary Offering
Memorandum and Final Offering Memorandum to the Initial
Purchasers; and (vii) the fees charged by the Rating Agencies for
rating the Class A Certificates.
(i) To the extent, if any, that any rating provided with
respect to the Class A Certificates by the Rating Agencies is
conditional upon the furnishing of documents or the taking of any
other actions by NMG or the Seller, NMG or the Seller shall
furnish (or cause to be furnished) such documents and take (or
cause to be taken) any such other actions.
(j) For a period of thirty days from the date hereof, the
Seller will not, without the prior written consent of the Initial
Purchasers, directly or indirectly, offer, sell or contract to
sell, or announce the offering of, in a public or private
transaction, any other series of certificates evidencing interests
in the Receivables.
7. Conditions of the Obligations of the Initial Purchasers. The
obligation of the Initial Purchasers to purchase and pay for the Class A
Certificates will be subject to the accuracy of the representations and
warranties on the part of NMG and the Seller herein, to the accuracy of the
statements of officers of NMG and the Seller made pursuant to the provisions
hereof, to the performance by the Seller hereunder and to the following
additional conditions precedent:
(a) The Initial Purchasers shall have received from
Deloitte & Touche LLP a letter or letters, dated the date of the
Final Offering Memorandum, confirming that they are independent
public accountants within the meaning of the Securities Act and
otherwise in form and substance satisfactory to the Initial
Purchasers and counsel to the Initial Purchasers.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Trust or NMG or the
Seller which, in the reasonable judgment of the Initial
Purchasers, could materially impair the investment quality of the
Class A Certificates; (ii) any downgrading in the rating of any
securities of the Trust or NMG or the Seller, by any "nationally
recognized statistical rating organization" (as such term is
defined for purposes of Rule 436(g) under the Securities Act), or
any public announcement that any such organization has under
surveillance or review its rating of any securities of the Trust
or NMG or the Seller (other than an announcement with positive
implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any suspension of
trading of any securities of NMG or the Seller on any exchange or
in the over-the-counter market or any setting of minimum prices
for trading on such exchange; or (iv) any outbreak or escalation
of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national
or international calamity or emergency if, in the judgment of the
Initial Purchasers, the effects of any such outbreak, escalation,
declaration, calamity or emergency could make it impractical or
inadvisable to proceed with completion of the sale of, and payment
for, the Class A Certificates.
(c) The Initial Purchasers shall have received a
certificate, dated the Closing Date, signed by the President or
any Vice President and the principal financial or principal
accounting officer or the Treasurer or any Assistant Treasurer or
the Secretary or any Assistant Secretary of each of NMG and the
Seller to the effect that the signers of such certificate, certify
on behalf of NMG and the Seller, that they have carefully examined
the Basic Documents and the Final Offering Memorandum and stating
that:
(i) the representations and warranties of NMG and
the Seller in the Basic Documents are true and correct in
all material respects at and as of the date of such
certificate as if made on and as of such date (except to the
extent they expressly relate to an earlier date);
(ii) NMG and the Seller have complied, in all
material respects, with all the agreements and satisfied, in
all material respects, all the conditions on the part of NMG
and the Seller to be performed or satisfied at or prior to
the date of such certificate; and
(iii) nothing has come to the attention of NMG or the
Seller that would lead NMG or the Seller to believe that the
Final Offering Memorandum contains any untrue statement of a
material fact or omits to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) Mayer, Brown & Platt shall have delivered a favorable
opinion dated the Closing Date in form and substance reasonably
satisfactory to the Initial Purchasers, and NMG and the Seller
shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass on
such matters.
(e) Gail S. Mann, Vice President and Associate General
Counsel of NMG, shall have delivered a favorable opinion with
respect to clauses (i) through (vi) and clause (ix) of this
paragraph (e); Mayer, Brown & Platt shall have delivered a
favorable opinion with respect to clauses (vii), (viii) and (x)
through (xi), (xii(a)) (with respect to Texas), (xii(b)), (xiii)
(with respect to Texas and New York) and (xiv) through (xxi); and
Ropes & Gray shall have delivered a favorable opinion with respect
to clauses (xii(a) (with respect to Massachusetts)) and (xiii)
(with respect to Massachusetts) of this paragraph (e). Each
opinion shall be dated the Closing Date and shall be satisfactory
in form and substance to the Initial Purchasers and its counsel,
to the effect that:
(i) Each of NMG and the Seller is validly existing
and in good standing as a corporation under the laws of the
State of Delaware, is duly qualified to do business and is
in good standing under the laws of each jurisdiction which
requires such qualification wherein it owns or leases
material properties or conducts material business, and has
full power and authority to own its properties, and to enter
into and perform its obligations under this Agreement and
the other Basic Documents and to consummate the transactions
contemplated hereby and thereby;
(ii) this Agreement and the other Basic Documents
have been duly authorized, executed and delivered by NMG and
the Seller;
(iii) the Class A Certificates have been duly
authorized by the Seller;
(iv) neither the execution nor the delivery of this
Agreement and the other Basic Documents, nor the issuance or
delivery of the Class A Certificates, nor the consummation
of any of the transactions contemplated herein or therein,
nor the fulfilment of the terms of the Class A Certificates
or the Basic Documents will conflict with or violate any
term or provision of the charter or by-laws of Bergdorf
Goodman, NMG or the Seller, or result in a breach or
violation of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of Bergdorf Goodman, NMG or the Seller
pursuant to any material statute currently applicable to
such corporation or any order or regulation known to such
counsel to be currently applicable to such corporation of
any court, regulatory body, administrative agency or
governmental body having jurisdiction over Bergdorf Goodman,
NMG or the Seller, as the case may be, or the terms of any
indenture or other agreement or instrument to which Bergdorf
Goodman, NMG or the Seller is a party or by which any of
them or any of their properties are bound;
(v) there is no pending or to the best knowledge of
such counsel, threatened action, suit or proceeding before
any court or governmental agency, authority or body or any
arbitrator with respect to the Trust, the Class A
Certificates, the Basic Documents or any of the transactions
contemplated herein or therein or with respect to NMG or the
Seller which, in the case of any such action, suit or
proceeding with respect to NMG or the Seller, would have a
material adverse effect on the holders of the Class A
Certificates or the Trust or upon the ability of any of them
to perform their obligations under any of such agreements,
and there is no material contract or document relating to
the Trust or property conveyed to the Trust which is not
disclosed in the Final Offering Memorandum;
(vi) such counsel has no reason to believe that
(other than accounting, statistical or financial data
included therein, as to which counsel need express no
belief) the Final Offering Memorandum, as amended or
supplemented as of the date of such opinion, contained any
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein in the light of the circumstances under which they
were made, not misleading;
(vii) it is not necessary in connection with the
offer, sale and delivery of the Class A Certificates in the
manner contemplated by this Agreement and the Pooling and
Servicing Agreement to register the Class A Certificates
under the Securities Act;
(viii) the statements in the Final Offering
Memorandum under the heading "Legal Aspects of the
Receivables", to the extent that they constitute statements
of matters of law or legal conclusions with respect thereto,
have been prepared or reviewed by such counsel and are
correct in all material respects;
(ix) no consent, approval, authorization, order,
registration, filing, qualification, license or permit of or
with any court, federal or state governmental agency or
regulatory body is required for NMG and the Seller to
consummate the transactions contemplated by the Basic
Documents, except (x) such consents, approvals,
authorizations, orders, registrations, filings,
qualifications, licenses or permits as have been made or
obtained or as may be required under the state securities or
"Blue Sky" laws of any jurisdiction in connection with the
purchase of the Class A Certificates and the subsequent
distribution thereof by the Initial Purchasers or (y) where
the failure to have such consents, approvals,
authorizations, orders, registrations, filings,
qualifications, licenses or permits would not have a
material adverse effect on the Trust's interests in the
Receivables or, without limiting the foregoing, on the
transactions contemplated by the Basic Documents;
(x) the Basic Documents constitute the legal, valid
and binding agreement of each of NMG and the Seller
enforceable against each of NMG and the Seller in accordance
with its terms subject (x) to applicable bankruptcy,
insolvency, reorganization, moratorium, receivership,
conservatorship or other similar laws, regulations or
procedures of general applicability relating to or generally
affecting enforcement of the rights of creditors; (y) to
general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law)
and (z) with respect to rights of indemnity under this
Agreement, to limitations of public policy under applicable
securities laws;
(xi) the Class A Certificates when duly and validly
executed and authenticated in accordance with the terms of
the Pooling and Servicing Agreement and the Supplement and
delivered to and paid for by the Initial Purchasers pursuant
to this Agreement, will be validly issued and outstanding,
enforceable in accordance with their terms subject (x) to
applicable bankruptcy, insolvency, reorganization,
moratorium, receivership, conservatorship or other similar
laws, regulations or procedures of general applicability
relating to or generally affecting enforcement of the rights
of creditors and (y) to general principles of equity
(regardless of whether enforcement is sought in a proceeding
in equity or at law);
(xii) the security interest created by the Receivables
Purchase Agreements in NMG's and Bergdorf Goodman's
interests in the Receivables will be perfected, (a) in the
case of NMG, under Article 9 of the Uniform Commercial Code
of Texas and Massachusetts upon the proper filing of UCC-1
financing statements with the appropriate filing offices in
Texas and Massachusetts, and (b) in the case of Bergdorf
Goodman, under Article 9 of the Uniform Commercial Code of
New York upon the proper filing of UCC-1 financing
statements with the appropriate filing offices in New York;
(xiii) the security interest created by the
Pooling and Servicing Agreement in the Seller's interest in
the Receivables will be perfected under Article 9 of the
Uniform Commercial Code of Texas and Massachusetts upon the
proper filing of UCC-1 financing statements with the
appropriate filing offices in Texas and Massachusetts, and
at the time of such perfection, such security interest will
be of first priority under Article 9 of the New York Uniform
Commercial Code;
(xiv) the UCC-1 financing statements are in
appropriate form for filing and (a) no other filings or
other actions, with respect to the Seller's interest in the
Receivables, are necessary to perfect the interest of the
Seller in the Receivables, and the proceeds thereof,
conveyed to the Seller thereunder and (b) no other filings
or other actions, with respect to the Trustee's interest in
the Receivables, are necessary to perfect the interest of
the Trustee in the Receivables, and proceeds thereof,
against third parties, except, in each case, that
appropriate continuation statements must be filed in
accordance with the applicable state's requirements;
(xv) the Receivables Purchase Agreements create in
favor of the Seller security interests under Article 9 of
the New York Uniform Commercial Code ("NYUCC") in the rights
of Bergdorf Goodman and NMG in the Receivables (and
collections thereon) and the Pooling and Servicing Agreement
creates in favor of the Trustee a security interest under
Article 9 of the NYUCC in the rights of the Seller in the
Receivables (and collections thereon);
(xvi) the Certificates and the Basic Documents conform
in all material respects to the descriptions thereof
contained in the Final Offering Memorandum;
(xvii) neither the Pooling and Servicing
Agreement nor the Supplement will be required to be
qualified under the Trust Indenture Act of 1939, as amended;
(xviii) the Trust is not required to be registered
as an "investment company" under the 1940 Act; and
(xix) the statements in the Final Offering Memorandum
under the heading "U.S. Federal Income Tax Considerations"
accurately describe the material Federal income tax
consequences to holders of the Certificates and the
statements under the heading "ERISA Considerations", to the
extent that they constitute statements of matters of law or
legal conclusions with respect thereto, have been prepared
or reviewed by such counsel and accurately describe the
material consequences to holders of the Certificates under
ERISA;
(xx) in a properly presented and argued case in a
proceeding under Title 11 of the United States Code, 11
U.S.C. '' 101, et seq. (the "Bankruptcy Code"), if the
matter were properly briefed and presented to a court, the
court would hold that (1) the transfer of the Receivables by
NMG to the Seller and by Bergdorf Goodman to the Seller in
the manner set forth in the related Receivables Purchase
Agreement would constitute an absolute sale of the
Receivables, rather than a borrowing by NMG or Bergdorf
Goodman, as applicable, secured by the related Receivables,
so that such Receivables would not be the property of the
estate of NMG or Bergdorf Goodman, as applicable, under
Section 541(a) of the Bankruptcy Code, and thus (2) the
Seller's rights to the Receivables would not be impaired by
the operation of Section 362(a) of the Bankruptcy Code; and
(xxi) if NMG or Bergdorf Goodman should become a
debtor in a case under the Bankruptcy Code, and the Seller
would not otherwise properly be a debtor in a case under the
Bankruptcy Code, and if the matter were properly briefed and
presented to a court exercising bankruptcy jurisdiction, the
court, exercising reasonable judgment after full
consideration of all relevant factors, would not order, over
the objection of the Certificateholders, the substantive
consolidation of the assets and liabilities of the Seller
with those of NMG or Bergdorf Goodman, as applicable.
In rendering such opinions, counsel may refer to or rely upon, (A)
as to matters involving the application of the law of any jurisdiction other
than the states in which they are licensed to practice, the corporate law of
the State of Delaware and the United States Federal laws, to the extent deemed
proper and stated in such opinion, the opinion of other counsel of good
standing believed by such counsel to be reliable and acceptable to the Initial
Purchasers and its counsel, and (B) as to matters of fact, to the extent
deemed proper and as stated therein, on certificates of responsible officers
of the Seller and public officials. Further, for purposes of the opinion
delivered pursuant to clause (x) above, counsel may assume that the applicable
laws of the State of New York are the same as the applicable laws of the
Commonwealth of Massachusetts and Texas.
(f) The Initial Purchasers shall receive evidence
satisfactory to them that, on or before the Closing Date, UCC-1
financing statements have been filed pursuant to the laws of the
States of Massachusetts, Texas and New York (and such other states
as may be necessary or desirable pursuant to applicable state law)
reflecting the interest of the Trust in the Receivables and the
proceeds thereof.
(g) Counsel to the Trustee shall have delivered a
favorable opinion, dated the Closing Date, as the case may be, and
satisfactory in form and substance to the Initial Purchasers and
their counsel and the Seller and its counsel, to the effect that:
(i) the Trustee has been duly organized and is
validly existing and in good standing as a national banking
association under the laws of the United States, is duly
qualified to do business in all jurisdictions where the
nature of its operations as contemplated by the Pooling and
Servicing Agreement and the Supplement requires such
qualifications, and has the power and authority (corporate
and other) to take all action required of it under, the
Pooling and Servicing Agreement and the Supplement;
(ii) the execution, delivery and performance by the
Trustee of the Pooling and Servicing Agreement and the
Supplement and the issuance of the Class A Certificates by
the Trustee have been duly authorized by all necessary
corporate action on the part of the Trustee, and under
present laws do not and will not contravene any law or
governmental regulation or order presently binding on the
Trustee or the charter or the by-laws of the Trustee or
contravene any provision of or constitute a default under
any indenture, contract or other instrument to which the
Trustee is a party or by which the Trustee is bound;
(iii) the execution, delivery and performance by the
Trustee of the Pooling and Servicing Agreement and the
Supplement and the issuance of the Class A Certificates by
the Trustee do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of
any other action in respect of any federal, state or other
governmental agency or authority which has not previously
been effected;
(iv) each of the Class A Certificates has been duly
authenticated and delivered by the Trustee and each of the
Class A Certificates and the Pooling and Servicing Agreement
and the Supplement constitute legal, valid and binding
agreements of the Trustee, enforceable against the Trustee
in accordance with its terms (subject to applicable
bankruptcy, insolvency and similar laws generally affecting
creditors' rights); and
(v) no approval, authorization or other action by,
or filing with, any governmental authority of the United
States of America or the State of New York having
jurisdiction over the banking or trust powers of the Trustee
is required in connection with its execution and delivery of
the Pooling and Servicing Agreement and the Supplement or
the performance by the Trustee of the terms of the Pooling
and Servicing Agreement and the Supplement.
(h) The Class A Certificates shall have been given the
highest investment grade rating by both Moody's Investors Service,
Inc. ("Moody's") and Standard & Poor's Ratings Group ("S&P"), and
neither Moody's nor S&P shall have placed the Class A Certificates
under review with possible negative implications.
(i) All proceedings in connection with the transactions
contemplated by this Agreement and the other Basic Documents and
all documents incident hereto and thereto shall be reasonably
satisfactory in form and substance to the Initial Purchasers and
their Counsel, and the Initial Purchasers and their Counsel shall
have received such information, certificates and documents as the
Initial Purchasers and their Counsel may reasonably request.
8. Indemnification and Contribution.
(a) NMG and the Seller, jointly and severally, will
indemnify and hold the Initial Purchasers harmless against any
losses, claims, damages or liabilities, joint or several, to which
the Initial Purchasers may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in the Preliminary Offering Memorandum or
the Final Offering Memorandum, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and will reimburse the Initial Purchasers for any
legal or other expenses reasonably incurred by the Initial
Purchasers in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that neither NMG nor the Seller will
be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and
in conformity with written information furnished to NMG or the
Seller by the Initial Purchasers specifically for use therein.
NMG and the Seller acknowledge that their names constitute the
only information furnished in writing by the Initial Purchasers or
on behalf of the Initial Purchasers for inclusion in the Final
Offering Memorandum.
(b) Each Initial Purchaser, severally (in proportion to
their respective purchase obligations) and not jointly, will
indemnify and hold harmless NMG and the Seller against any losses,
claims, damages or liabilities, joint or several, to which NMG or
the Seller may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in the Preliminary Offering Memorandum or the Final
Offering Memorandum, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to NMG or the Seller
by such Initial Purchaser specifically for use therein, as set
forth in subsection (a) above, and will reimburse any legal or
other expenses reasonably incurred by NMG or the Seller in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under subsection (a) or (b)
above, notify the indemnifying party of the commencement thereof;
but the omission to so notify the indemnifying party (i) will not
relieve it from liability under subsections (a) or (b) above
unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligations
provided under subsections (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party under this Section 8 shall
not be liable for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such
action.
(d) If the indemnification provided for in this Section 8
is unavailable or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits
received by NMG and the Seller, on the one hand, and the Initial
Purchasers, on the other, from the offering of the Class A
Certificates or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of NMG and/or the
Seller, on the one hand, and the Initial Purchasers, on the other,
in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received
by NMG and the Seller, on the one hand, and the Initial
Purchasers, on the other, shall be deemed to be in the same
proportion as the total net proceeds from the offering (before
deducting expenses) received by NMG and the Seller bear to the
total discounts and commissions received by the Initial
Purchasers. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by NMG or
the Seller, on the one hand, or by the Initial Purchasers, on the
other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as
a result of the losses, claims, damages or liabilities referred to
in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Initial
Purchaser shall be required to contribute any amount in excess of
the discount applicable to the Class A Certificates purchased by
such Initial Purchaser hereunder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Initial Purchasers' obligations pursuant to this subsection (d) to
contribute are several in proportion to their respective purchase
obligations and not joint.
(e) The obligations of NMG and the Seller under this
Section 8 shall be in addition to any liability which NMG and the
Seller may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls the Initial
Purchasers within the meaning of the Securities Act; and the
obligations of the Initial Purchasers under this Section 8 shall
be in addition to any liability that the Initial Purchasers
may otherwise have and shall extend, upon the same terms and
conditions, to each director of NMG and the Seller, and to each
person, if any, who controls NMG or the Seller within the meaning
of the Securities Act.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of NMG and the Seller and their respective officers and of the
Initial Purchasers set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of the Initial Purchasers or NMG or
the Seller or any of their respective representatives, officers or directors
or any controlling person (within the meaning of the Securities Act), and will
survive delivery of and payment for the Class A Certificates. If for any
reason the purchase of the Class A Certificates by the Initial Purchasers is
not consummated, NMG and the Seller shall remain responsible for the expenses
to be paid or reimbursed by NMG and the Seller pursuant to Section 6 hereof
and the respective obligations of NMG and the Seller and the Initial
Purchasers pursuant to Section 8 hereof shall remain in effect. If the
purchase of the Class A Certificates by the Initial Purchasers is not
consummated for any reason or the occurrence of any event specified in clause
(iii) or (iv) of Section 7(b) hereof, NMG and the Seller, jointly and
severally, will reimburse the Initial Purchasers for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Class A Certificates.
10. Notices. All communications hereunder will be in writing
and, if sent to the Initial Purchasers, will be mailed, delivered or
telecopied and confirmed to Deutsche Bank Securities Inc., at 31 West 52nd
Street, New York, New York 10019; if sent to the Seller, will be mailed,
delivered or telecopied and confirmed to it at Neiman Marcus Funding
Corporation, 1201 Elm Street, Dallas, Texas 75201, Attention of the Vice
President - Credit (facsimile no. 214-761-2650), and if sent to NMG, will be
mailed, delivered or telecopied and confirmed to it at 27 Boylston Street,
Chestnut Hill, Massachusetts 02167, Attention of the General Counsel
(facsimile no. 617-278-5567).
11. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Representation of Initial Purchasers. Any action under this
Agreement taken by the Initial Purchasers jointly or by Deutsche Bank
Securities Inc. will be binding on the Initial Purchasers.
14. Applicable Law and Time. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Unless otherwise set forth herein, specified times of day refer to New York
City time.
15. Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties hereto with respect to the
subject matter of this Agreement and supersedes all prior agreements or
understandings, written or oral, among the parties with respect to the subject
matter of this Agreement.
If the foregoing is in accordance with the Initial Purchasers
understanding of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement between the
Seller and the Initial Purchasers in accordance with its terms.
Very truly yours,
NEIMAN MARCUS FUNDING CORPORATION
By: _____________________________
Name:
Title:
THE NEIMAN MARCUS GROUP, INC.
By: ____________________________
Name:
Title:
The foregoing Class A Purchase
Agreement is hereby confirmed
and accepted as of the date
first above written.
DEUTSCHE BANK SECURITIES INC.
CHASE SECURITIES INC.
By: Deutsche Bank Securities Inc.,
as Representative of the Initial Purchasers
By: ______________________________
Name:
Title:
By: _____________________________
Name:
Title: