1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
In re:
NEIMAN MARCUS GROUP LTD LLC, et al.,
Debtors.
1)
) Chapter 11
)
)
Case No. 20-32519 (DRJ)
)
)
(Jointly Administered)
)
OBJECTION OF MRC LUXEMBOURG S.A.R.L TO
DEBTORS’ FIRST AMENDED JOINT PLAN OF REORGANIZATION
PURSUANT TO CHAPTER 11 OF THE BANKRUPTCY CODE
MRC Luxembourg S.A.R.L. (“MRC Luxembourg”), as attorney in fact for Bank of
Montreal, and acting by and through its independent manager Richard S. Schmidt, hereby files this
objection (this “Objection”) to confirmation of the Debtors’ First Amended Joint Plan of
Reorganization Pursuant to Chapter 11 of the Bankruptcy Code [Docket No. 1388] (the “Plan”).
In support of the Objection, MRC Luxembourg respectfully states as follows:
BACKGROUND
MRC Luxembourg is an affiliate of Marble Ridge Capital LP (“MR Capital”) and is 100%
owned by Marble Ridge Master Fund LP (“MR Master Fund”). However, MR Capital does not
1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, are: Neiman Marcus Group LTD LLC (9435); Bergdorf Goodman Inc. (5530); Bergdorf Graphics, Inc. (9271); BG Productions, Inc. (3650); Mariposa Borrower, Inc. (9015); Mariposa Intermediate Holdings LLC (5829); NEMA Beverage Corporation (3412); NEMA Beverage Holding Corporation (9264); NEMA Beverage Parent Corporation (9262); NM Bermuda, LLC (2943); NM Financial Services, Inc. (2446); NM Nevada Trust (3700); NMG California Salon LLC (9242); NMG Florida Salon LLC (9269); NMG Global Mobility, Inc. (0664); NMG Notes PropCo LLC (1102); NMG Salon Holdings LLC (5236); NMG Salons LLC (1570); NMG Term Loan PropCo LLC (0786); NMG Texas Salon LLC (0318); NMGP, LLC (1558); The Neiman Marcus Group LLC (9509); The NMG Subsidiary LLC (6074); and Worth Avenue Leasing Company (5996). The Debtors’ service address is: One Marcus Square, 1618 Main Street, Dallas, Texas 75201.
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serve as the investment manager for MRC Luxembourg and does not have discretion over MRC
Luxembourg’s investments. Discretion over MRC Luxembourg’s investments is vested with a
separate Board of Managers.
Based upon various allegations raised in this case, and to assure MR Master Fund’s
investors that decisions regarding the Fund’s economic interests in these proceedings are not
affected by those allegations, Richard S. Schmidt has been appointed to act as Independent
Manager for MR Master Fund and MRC Luxembourg (together, the “MR Funds”).
2In that role,
Mr. Schmidt has authority to make decisions on behalf of the MR Funds in specific matters relating
to these bankruptcy proceedings, including matters relating to the Plan. Mr. Schmidt was
appointed as Independent Manager in an effort to responsibly, fairly, and efficiently oversee the
resolution of the MR Funds’ claims and interests in these bankruptcy proceedings. Mr. Schmidt’s
role as Independent Manager cannot be terminated without his consent.
As Independent Manager, Mr. Schmidt has been authorized to make independent decisions
on behalf of the MR Funds in connection with specific and discrete matters related to these Chapter
11 proceedings, including whether to file an objection to the Plan (and if so, on what grounds) and
whether to vote on the Plan (and if so, whether to accept or reject the Plan). Upon due
consideration of all the relevant facts and circumstances over the last five days since his retention,
Mr. Schmidt has made the decision for the MR Funds not to vote to accept or reject the Plan for
any of the claims of the MR Funds against the Debtors. However, Mr. Schmidt has made the
decision for the MR Funds to opt out of the Third-Party Release set forth in Article III.D. of the
Plan.
32 The MR Funds are the Marble Ridge entities holding claims against or interests in the Debtors.
3 The MR Funds are entitled to opt out of the Third-Party Release by checking the applicable box on the voting ballots,
despite not voting to accept or reject the Plan. However, to the extent that the MF Funds’ “opt out” is not deemed effective, the MR Funds reserve the right to challenge and object to the Third-Party Release at the confirmation
3
For the reasons set forth below, Mr. Schmidt has made the decision for MRC
Luxembourg to object to the Plan based on its treatment of claimants in Class 6 (2013 Term
Loans Claim). MRC Luxembourg holds a participation interest in $9,565,741.03, in principal
amount of claims under the 2013 Term Loans.
4Bank of Montreal is the record holder of MRC
Luxembourg’s claim. The participation agreement between MRC Luxembourg and Bank of
Montreal grants MRC Luxembourg a proxy to “unconditionally act as attorney-in-fact on [Bank
of Montreal]’s behalf with full power of substitution to enforce or to seek to enforce any and all
rights arising under or in connection with the [Term Loan] Credit Agreement” with respect to the
claims acquired by MRC Luxembourg through the participation arrangement. See June 6, 2019
Participation Agreement between Bank of Montreal and MRC Luxembourg at Section H.31.1,
attached hereto as Exhibit A. It is on this basis that MRC Luxembourg interposes this objection
to the treatment of the 2013 Term Loans Claim under the Plan.
The basis of the objection is that the Debtors have failed to provide for treatment of the
2013 Term Loans Deficiency Claim consistent with the treatment of other General Unsecured
Claims (in Classes 10 and 11). If the Debtors agree to resolve this objection by providing such
treatment for the 2013 Term Loans Deficiency Claim, Mr. Schmidt has agreed to authorize the
MR Funds to vote in favor of the Plan.
OBJECTION
The Plan Cannot Be Confirmed Unless It Provides Treatment For The 2013 Term Loans
Deficiency Claim Consistent With The Treatment of Other General Unsecured Claims
Under the Plan, the 2013 Term Loans Claim are classified in Class 6, and on the Effective
Date, will be allowed in the aggregate principal amount of $12,597,197.75, plus amounts due
hearing.
4 Capitalized terms used but not defined herein shall have the meanings set forth in the Plan.
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and owing under the Term Loan Credit Agreement. See Plan Art. III.B.6.b. If Class 6 votes to
accept the Plan, creditors in the class will receive a pro rata share of 0.2% of New Equity, subject
to dilution, and 0.2% of the Exit Rights in alleged satisfaction of the 2013 Term Loan Claims.
See Plan Art. III.B.6.c.i. If Class 6 does not vote to accept the Plan, creditors will receive
unspecified value equal to the allowed amount of their claims, “provided that such value shall
not exceed the value of each Holder’s interest in the estate’s interest in the property securing such
Claim.” Plan Art. III.B.6.c.ii. In other words, if Class 6 does not accept the Plan, creditors in the
class will receive value only on account of the secured portion of their claim, and will receive
nothing on account of their unsecured deficiency claim.
While the Plan defines the deficiency claim of holders of the 2013 Term Loans Claim
(“2013 Term Loans Deficiency Claim,” Plan Art. I.A.3), that deficiency claim is not classified
under the Plan, and is expressly excluded as a General Unsecured Claim. See Plan Art. I.A.120
(“General Unsecured Claim means any Claim that is not . . . a 2013 Term Loans Deficiency
Claim.”). The Debtors estimate that Class 6 claimants will only recover 12.75% of their claims,
and as a consequence, the unsecured or remaining amount of debt owed to MRC Luxembourg is
an unsecured claim under 11 U.S.C. § 506(a). See Disclosure Statement for the Debtors’ First
Amended Joint Plan of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code [Docket
No. 1390] at III.D. To the extent that the Plan attempts to classify, and effectively waive, the
unsecured claims as being satisfied in Class 6, or because it fails to provide for any treatment of
the 2013 Term Loans Deficiency Claim at all, the Plan is unconfirmable.
Pursuant to Bankruptcy Code Section 506(a), a “secured creditor’s claim is to be divided
into secured and unsecured portions, with the secured portion of the claim limited to the value of
the collateral.” Gold Star Constr., Inc. v. Cavu/Rock Props. Project I, LLC (In re Cavu/Rock
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Props. Project I, LLC), 530 B.R. 349, 356 (W.D. Tex. 2015), quoting Assocs. Commercial Corp.
v. Rash, 520 U.S. 953, 961, 117 S. Ct. 1879, 138 L. Ed. 2d 148 (1997). “[A]ny difference between
the amount of the debt and the value of the collateral, that is, the deficiency claim, is deemed an
unsecured claim . . . .” In re 500 Fifth Ave. Assoc., 148 B.R. 1010, 1016 (Bankr. S.D.N.Y. 1993).
By failing to classify or provide treatment for, or by attempting to waive by classification the
2013 Term Loans Deficiency Claim—an unsecured claim separate from the 2013 Term Loans
Secured Claim—the Plan violates Section 1123(a), and is therefore unconfirmable under Section
1129(a)(1).
5See 11 U.S.C. § 1123(a)(3) (plan must “specify the treatment of any class of claims
or interests that is impaired under the plan”).
That the Plan provides no recovery on account of the 2013 Term Loans Deficiency Claim
also renders the Plan unconfirmable under Section 1129(b). MRC Luxembourg has not voted its
Class 6 claims and is unaware of any other Class 6 claimant that has voted to accept the Plan.
Accordingly, the “cram down” provisions of Section 1129(b) should apply. The Plan
“discriminates unfairly” (within the meaning of Section 1129(b)) against the holders of the 2013
Term Loans Deficiency Claim, by providing a distribution to unsecured creditors in Class 10 and
11, while providing no distribution on account of the 2013 Term Loans Deficiency Claim. See
In re Sentry Operating Co. of Texas, Inc., 264 BR 850, 863-864 (Bankr. S.D. Tex 2001) (plan
unfairly discriminates where there is a dissenting class, another class of the same priority, and a
difference in the plan’s treatment of the two classes that results in a materially lower percentage
recovery for the dissenting class).
This result is not avoided by Article III.E of the Plan, which provides that if no holders in
5 11 U.S.C. § 1129(a)(1) (plan can be confirmed only if it “complies with the applicable provisions of [the Bankruptcy
Code]”)). “Courts interpret [Section 1129(a)(1)] to mean that a plan must meet the requirements of Bankruptcy Code Sections 1122 and 1123.” In re Star Ambulance Serv., LLC, 540 B.R. 251, 260 (Bankr. S.D. Tex. 2015).
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a class eligible to vote on the Plan actually vote to accept or reject it, that class will be deemed
to have accepted the Plan. That Plan provision violates Section 1126(c),
6which requires an
affirmative vote for a class of creditors to accept the Plan. See In re Castaneda, 09-50101, 2009
WL 3756569, at *2 (Bankr. S.D. Tex. Nov. 2, 2009) (in order for a creditor class to accept the
plan, “[a]n affirmative vote is required, and the rules require the vote to be in writing and satisfy
other formalities.”); In re Westwood Plaza Apartments, Ltd., 192 B.R. 693, 696 (E.D. Tex. 1996)
(affirming bankruptcy court’s refusal to deem acceptance of plan by single-creditor class which
did not vote, given that 1126(c) “mandates that the requisite majorities necessary for the
acceptance of a plan are computed strictly on the basis of votes actually cast or not . . . on the
claims filed and allowed.”) (citation and quotation omitted). The Plan, as drafted, impermissibly
attempts to re-write the provisions of the Bankruptcy Code by effectuating silence as class
acceptance, and the Court must independently determine the Plan’s compliance with the
requirements of the Bankruptcy Code to confirm it. See In re Williams, 850 F.2d 250, 253 (5th
Cir. 1988).
And even if Class 6 were to vote to accept the Plan, that would still not excuse the failure
to treat the 2013 Term Loans Deficiency Claim the same as other General Unsecured Claims.
Because Section 506(a) requires the bifurcation of a secured creditor’s secured claim and
unsecured deficiency claim, Class 6 acceptance could, at best, only compromise treatment of the
secured portion of the 2013 Term Loans Claim, and not the deficiency claim. Moreover, there
has been no Section 1111(b) election by the holders of the 2013 Term Loans Claim that would
waive the deficiency claim.
76 11 U.S.C. § 1126(c) (class of claims is deemed to have accepted the plan if it has been accepted by creditors holding
“at least two-thirds in amount and more than one-half in number of the allowed claims of such class held by creditors . . . that have accepted or rejected such a plan”).
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For these reasons, the Plan should not be confirmed unless it is amended to provide
treatment on account of the 2013 Term Loans Deficiency Claim consistent with the treatment of
General Unsecured Claims in Classes 10 and 11.
Dated: August 31, 2020
Respectfully submitted,
/s/Laura M. Fontaine
Laura M. Fontaine
Texas State Bar No. 24065239
Joshua L. Hedrick
Texas State Bar No. 24061123
Mark A. Fritsche
Texas State Bar No. 24100095
HEDRICK KRING, PLLC
1700 Pacific Avenue, Suite 4650
Dallas, Texas 75201
Telephone: (214) 880-9600
Fax: (214) 481-1844
Email: [email protected]
Email: [email protected]
Email: [email protected]
/s/ Daniel J. Saval
Michael S. Kim (admitted pro hac vice)
Zachary D. Rosenbaum (admitted pro hac vice)
Daniel J. Saval (admitted pro hac vice)
Leif T. Simonson (admitted pro hac vice)
Alexandra Fellowes (admitted pro hac vice)
Sara Gribbon (pro hac vice forthcoming)
KOBRE & KIM LLP
800 Third Avenue
than half in number of allowed claims of such class.” 11 U.S.C. § 1111(b)(1)(A)(i).
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New York, New York 10022
Telephone: +1 212 488 1200
Facsimile: +1 212 488 1220
Email:
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Attorneys for MRC Luxembourg S.A.R.L. and
Marble Ridge Master Fund LP
CERTIFICATE OF SERVICE
The undersigned certifies that on the 31st day of August, 2020, she caused a true and
correct copy of the foregoing Notice of Appearance to be served electronically on those parties
requesting electronic service through the Court’s ECF system.
/s/ Laura M. Fontaine
Laura M. Fontaine
Texas State Bar No. 24065239
Joshua L. Hedrick
Texas State Bar No. 24061123
Mark A. Fritsche
Texas State Bar No. 24100095
HEDRICK KRING, PLLC
1700 Pacific Avenue, Suite 4650
Dallas, Texas 75201
Telephone: (214) 880-9600
Fax: (214) 481-1844
Email: [email protected]
Email: [email protected]
Email: [email protected]
(;+,%,7
A
Copyright © LSTA 2016. All rights reserved.
PARTICIPATION AGREEMENT FOR PAR/NEAR PAR TRADES ______________
TRANSACTION SPECIFIC TERMS
THIS PARTICIPATION AGREEMENT FOR PAR/NEAR PAR TRADES is dated as of the Agreement Date and entered into by and between Seller and Buyer to govern the purchase and sale of the Participation in the Loans, the Commitments (if any) and the other Transferred Rights, in accordance with the terms, conditions and agreements set forth in the LSTA Standard Terms and Conditions for Participations for Par/Near Par Trades, published as of June 9, 2017 (the “Standard Terms”). The Standard Terms and (if applicable) the Collateral Annex are incorporated herein by reference without any modification whatsoever except as otherwise agreed herein by the Parties and as specifically supplemented and modified by the terms and elections set forth in the Transaction Summary and Sections A through H below. The Standard Terms, the Collateral Annex (if applicable) and the Transaction Specific Terms together constitute a single integrated Participation Agreement for Par/Near Par Trades governing the Transaction. With respect to the Transaction, the Parties agree to be bound by the Standard Terms and the Transaction Specific Terms set forth herein.
TRANSACTION SUMMARY
Trade Date: 03/29/2019
Agreement Date: 06/06/2019
Seller: Bank of Montreal
Seller MEI:
Buyer: MRC LUXEMBOURG S.A.R.L
Buyer MEI:
Credit Agreement: Term Loan Credit Agreement, dated as of October 25, 2013 (as amended,
restated, supplemented or otherwise modified and in effect from time to time), among, MARIPOSA INTERMEDIATE HOLDINGS LLC, a Delaware limited liability company, MARIPOSA MERGER SUB LLC, a Delaware limited liability company, the Lenders party thereto from time to time, and Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent.
Borrower: Neiman Marcus Group Ltd LLC
Purchase Amount(s): USD 9,594,936.64
Tranche(s): Other Term Loan
CUSIP Number(s), if available: 64021SAC3
Delivery of Credit Documents: Yes No
Netting Arrangements: Yes No
Set-Off Applicable: Yes No
Collateral Annex Applicable: Yes No
A. DEFINITIONS
Capitalized terms used in this Agreement shall have the respective meanings ascribed thereto in Section 1 of the Standard Terms, as supplemented by Section A of the Transaction Specific Terms and as otherwise may be provided in other provisions of this Agreement. Terms defined in the Credit Agreement and not otherwise defined in this Agreement shall have the same meanings in this Agreement as in the Credit Agreement. Except as otherwise expressly set forth herein, each reference herein to “the Agreement,” “this Agreement,” “herein,” “hereunder” or “hereof” shall be deemed a reference to this Agreement. If there is any inconsistency between the Transaction Specific Terms and the Standard Terms, the Transaction Specific Terms shall govern and control.
In this Agreement:
“Agent” means Credit Suisse AG, Cayman Islands Branch
“Assignment” means the Assignment and Acceptance that is in the form specified in the Credit Agreement for an assignment of the Loans and Commitments (if any) and any Elevation Required Consents to such assignment.
“Buyer Purchase Price” select one: not applicable.
means the purchase price payable by Buyer to Original Buyer pursuant to the Netting Letter (this applies if there are three (3) parties involved in the netting arrangement).
means the purchase price payable by Buyer to Penultimate Buyer pursuant to the Netting Letter (this applies if there are four (4) or more parties involved in the netting arrangement).
“Collateral Annex” N.A. “Commitments” select one:
none.
“Elevation Transfer Fee” means none.
“Loans” means Other Term Loans in the outstanding principal amount of $9,594,936.64 “Netting Letter” select one:
not applicable.
means that certain Multilateral Netting Agreement in the form currently published by the LSTA dated on or as of the Agreement Date among Seller, Buyer [and] [,] Original Buyer [, Penultimate Buyer] and [describe any other parties to the Netting Letter]].
“Original Buyer” select one: not applicable.
means [specify original buyer in the netting arrangement]. “Participation Required Consents” means none.
“Participation Transfer Fee” means the transfer fee (if any) set forth in Section E.1 payable to Seller in connection with the assignment by Buyer of all or any portion of the Participation, subject to Section 10.1 of the Standard Terms and Conditions.
“Penultimate Buyer” select one: not applicable.
none (“none” is applicable if there are only three (3) parties involved in the netting arrangement).
means [_________]. “Seller Purchase Price” select one:
not applicable.
means the purchase price payable by Original Buyer to Seller pursuant to the Netting Letter. “Unfunded Commitments” means that part of the Commitments that has not been funded in the form of loans, advances, letter of credit disbursements or otherwise under the Credit Agreement, which is in the principal amount of $0.00
B. SECTION 5 (BUYER’S REPRESENTATIONS AND WARRANTIES)
If “Yes” is specified opposite “Delivery of Credit Documents” in the Transaction Summary, Buyer represents and warrants that it (i) was not a Lender on the Trade Date and (ii) requested copies of the Credit Documents from Seller on or prior to the Trade Date.
C. SECTION 8 (DISTRIBUTIONS; INTEREST AND FEES; PAYMENTS; COMMITMENT
REDUCTIONS)
C.1 Section 8.3 (Wire Instructions). Buyer’s Wire Instructions:
Bank Name: JPMorgan Chase Bank, N.A., Address (City, State): New York NY ABA#: 021000021
Account Name: Account Number:
Seller’s Wire Instructions:
Bank Name: BMO Harris Bank, N.A. Address (City, State): Chicago, Il, 60603 ABA#: 071000288
Account Name: Account Number:
C.2 Section 8.8 (Set-Off).
If “Yes” is specified opposite “Set-Off” in the Transaction Summary, clause (i) of the proviso to the second sentence of Section 8.8 shall apply.
D. SECTION 9 (NOTICES; RECORDS)
Buyer’s Address for Notices and Delivery: Greg Pearson
Chief Financial Officer
Marble Ridge Master Fund LP C/o Marble Ridge Capital LP 1250 Broadway Suite 2601 New York, NY 10001 By Email:
[email protected] By Fax: 212-858-9929
Seller’s Address for Notices and Delivery: Bank of Montreal
115 South LaSalle Street, Floor 4W Chicago, Illinois 60603
Attention: Jason M. Clary Telephone: (312) 461-6204
Electronic Mail Address: [email protected]
E. SECTION 10 (FURTHER TRANSFERS)
E.1 Select one:
There is no Participation Transfer Fee.
There is a Participation Transfer Fee, in the amount of $3,000.00.
E.2 If an Affiliate of Buyer that is a buyer under a participation agreement with Seller entered into as of the same day as this Agreement makes a Pre-Elevation Transfer (whether or not such transfer is so defined under such participation agreement) of loans and commitments (if any) under the Credit Documents subject to such participation agreement on the same day as Buyer, on substantially similar documents and to the same Entity as Buyer:
Buyer and such Affiliate(s) of Buyer shall pay only one Participation Transfer Fee.
Buyer and each such Affiliate of Buyer shall pay a separate Participation Transfer Fee in respect of each such Pre-Elevation Transfer.
Not applicable (there is no Participation Transfer Fee).
E.3 Section 10.1 Right of Buyer to sell subparticipations:
Buyer may sell subparticipations in respect of the Transferred Rights without Seller’s prior consent. Section 10.1(b) of the Standard Terms and Conditions will apply.
Buyer may not sell subparticipations in respect of the Transferred Rights without Seller’s prior consent. Section 10.1(b) of the Standard Terms and Conditions will not apply.
F. SECTION 11 (VOTING)
F.1 “Voting” select one:
Buyer shall have voting rights with respect to the Transferred Rights, subject to Section 11.1(a) of the Standard Terms and Conditions.
Buyer shall have no voting rights in respect of the Transferred Rights, subject to Section 11.1(b) of the Standard Terms and Conditions, except with respect to the following matters: ________________________________________________________________________________.
F.2 For purposes of determining the Majority Holders or Majority Claims Holders pursuant to Section 11.1(a) of the Standard Terms and Conditions:
the interests or claims held by Seller for its own account shall be counted; the interests or claims held by Seller for its own account shall not be counted; Not applicable;
AND
the interests or claims held by Affiliates of Seller shall be counted. the interests or claims held by Affiliates of Seller shall not be counted.
Not applicable.
G. SECTION 15 (ELEVATION)
G.1 Select one:
There is no Elevation Transfer Fee.
The Elevation Transfer Fee shall be paid as follows:
The Elevation Transfer Fee shall be paid by Seller to the Agent and Buyer shall reimburse Seller in an amount equal to
one-half thereof.
[other relevant fraction or percentage] _____ thereof.
The Elevation Transfer Fee shall be paid by Buyer to the Agent and Seller shall reimburse Buyer in an amount equal to
one-half thereof.
[other relevant fraction or percentage] _____ thereof.
G.2 If “No” is specified opposite “Elevation” in the Transaction Summary, then select one:
No Elevation shall be permitted unless requested by Seller and otherwise subject to Section 15.
Subject to Section 15, Seller may at any time request an Elevation and Buyer may request an Elevation only in the following circumstances: ________________________________________ _____________________________________________________________________________.
H. SECTION 31 (ADDITIONAL PROVISIONS)
1. Seller and Buyer agree that Section 5 of the Standard Terms is amended to add the following new subsection 5.1(k):
“(k) Buyer is not a Loan Party or an Affiliate of a Loan Party (as such terms are defined in the Credit Agreement).”
31. Seller and Buyer agree that the following provisions are included as Section 31 of the Standard Terms”:
31.1 Full and Irrevocable Proxy and Power of Attorney. Seller irrevocably grants the Buyer proxy to unconditionally act as attorney-in-fact on Seller's behalf with full power of substitution to enforce or to seek to enforce any and all rights arising under or in connection with the Credit Agreement with respect to this Transaction; provided that any such actions taken are not contrary to the Credit Agreement, or to applicable law. For the avoidance of doubt, and notwithstanding anything to the contrary in the Standard Terms, the foregoing proxy and power of attorney (a) are for the sole benefit of the Buyer and shall not inure to the benefit of, or be enforceable by, any transferee, assignee or subparticipant of the Buyer, and (b) shall terminate in the event of an Elevation or a Pre-Elevation Transfer.
31.2 Indemnification. Notwithstanding anything to the contrary, Buyer shall indemnify Seller for any and all claims, losses, and all other obligations related to the Transaction Support Agreement dated as of March 25, 2019 by and among Neiman Marcus Group, Inc. and certain of its subsidiaries, and the other Parties (as defined therein) (as amended or supplemented, the “TSA”), or any other lockup agreement (“Other Agreement”), the Credit Agreement, and any related transactions and documents related thereto.
31.3 Other Representations & Covenants. Seller represents and warrants to Buyer as of the Trade Date that it has not otherwise consented to the TSA or Other Agreement and will act solely upon the direction of Buyer with respect to the TSA and Other Agreement and the related transactions thereto with the Transaction being settled as a participation.
Annex-1
ANNEX TO PARTICIPATION AGREEMENT FOR PAR/NEAR PAR TRADES
The amount of any PIK Interest that accreted to the principal amount of the Loans on or after the Trade Date but on or prior to the Settlement Date is $0.00.
