Exhibit 10.3
EXECUTION COPY
SUBSTITUTION OF AGENT AND JOINDER
AGREEMENT
This SUBSTITUTION OF AGENT AND
JOINDER AGREEMENT (this “ Agreement ”), dated as
of July 15, 2009, is made by and among (a) Deutsche Bank
Trust Company Americas (“ DBTCA ”), as Agent (in
such capacity, the “ Existing Agent ”) under and
as defined in the Existing Revolving Facility Credit Agreement (as
hereinafter defined), (b) Credit Suisse, as Term Loan Agent
(as defined in the Intercreditor Agreement (as hereinafter
defined)) (in such capacity, the “ Term Loan Agent
”), and (c) Bank of America, N.A. (“ BANA
”), as successor to the Agent under the Revolving Facility
Credit Agreement (as defined below).
PRELIMINARY STATEMENTS
:
(1)
The Existing Agent, Neiman Marcus, Inc. (“
Holdings ”), The Neiman Marcus Group, Inc. (the
“ Company ”), certain subsidiaries of the
Company party thereto and the lenders party thereto are parties to
that certain Credit Agreement dated as of October 6, 2005 (as
amended prior to the date hereof, the “ Existing Revolving
Facility Credit Agreement ”);
(2)
As a condition to the occurrence of the Closing Date under the
Existing Revolving Facility Credit Agreement:
(a)
Holdings, the Company, the subsidiaries of the Company party
thereto, the Existing Agent and the Term Loan Agent entered into a
Lien Subordination and Intercreditor Agreement dated as of
October 6, 2005 (as supplemented, modified and amended from
time to time, the “ Intercreditor Agreement
”);
(b)
Holdings, the Company, the subsidiaries of the Company party
thereto and the Existing Agent entered into that certain Pledge and
Security Agreement dated as of October 6, 2005 (as amended
prior to the date hereof, the “ Existing Revolving
Facility Security Agreement ”); and
(c)
Holdings, the Company, the subsidiaries of the Company party
thereto and the Existing Agent entered into certain other Revolving
Facility Security Documents (as defined in the Intercreditor
Agreement) (as amended prior to the date hereof, and together with
the Existing Revolving Facility Security Agreement, the “
Existing Revolving Facility Security Documents
”).
(3)
Effective as of the date hereof, (a) DBTCA desires to resign
as Agent under the Existing Revolving Facility Credit Agreement,
the Existing Revolving Facility Security Documents and the other
Loan Documents under and as defined in the Existing Revolving
Facility Credit Agreement (collectively, the “ Existing
Revolving Facility Documents ”), and to assign to BANA
the Agent’s Rights and Obligations (as hereinafter defined),
(b) the Required Lenders (as defined in the Existing Revolving
Facility Credit Agreement) desire to appoint BANA as successor
Agent under the Revolving Facility Credit Agreement and the other
Revolving Facility Documents (as hereinafter defined) (in such
capacity, the “ New Agent ”), (c) the
Company is willing to consent to the appointment of BANA as
successor Agent, and (d) BANA is willing to accept such
appointment and assignment and, in connection therewith, to succeed
to DBTCA as Revolving Facility Agent under the Intercreditor
Agreement, in each case on the terms and conditions set forth
herein.
(4)
Concurrently with the consummation of the transactions contemplated
by paragraph (3) above, Holdings, the Company, the
subsidiaries of the Company party thereto, the Revolving Facility
Lenders (as defined in the Existing Revolving Facility Credit
Agreement), the agents party thereto
and BANA, as the New Agent, intend to amend and
restate the Existing Revolving Facility Credit Agreement pursuant
to an Amended and Restated Credit Agreement dated as of the date
hereof (as the same may be supplemented, modified and amended from
time to time, the “ Amended and Restated Revolving
Facility Credit Agreement ” and, together with the
Existing Revolving Facility Credit Agreement, the “
Revolving Facility Credit Agreement ”);
(5)
Upon the effectiveness of the Amended and Restated Revolving
Facility Credit Agreement, (a) the Company, the subsidiaries
of the Company party thereto and the New Agent intend to amend and
restate the Existing Revolving Facility Security Agreement pursuant
to an Amended and Restated Pledge and Security Agreement dated as
of the date hereof (as the same may be supplemented, modified and
amended from time to time, the “ Amended Security
Agreement ”), and (b) the Company, the subsidiaries
of the Company party thereto and the New Agent intend to amend
certain of the other Existing Revolving Facility Documents to
reflect the appointment of BANA as the New Agent thereunder and as
otherwise set forth therein (the Amended Security Agreement,
together with the other Existing Revolving Facility Documents and
such amendments, as the same may be further supplemented, modified
and amended from time to time, being referred to herein as the
“ Revolving Facility Documents ”);
and
(6)
The parties desire to enter into this Agreement in order to
evidence and confirm the resignation of the Existing Agent, the
appointment of the New Agent, and the agreement of the New Agent,
on behalf of the Revolving Facility Secured Parties (as defined in
the Intercreditor Agreement), to be bound by the terms of the
Intercreditor Agreement.
NOW THEREFORE, for and in
consideration of the premises and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
Section 1.
Definitions . Terms used herein and not otherwise
defined herein shall have the meanings assigned thereto in the
Intercreditor Agreement.
Section 2.
Resignation of Existing Agent . Effective as of the
date hereof, and subject to (a) the appointment of BANA as the
New Agent by the Required Lenders (as defined in the Existing
Revolving Facility Credit Agreement) (which shall be deemed for all
purposes to have occurred upon execution of the Amended and
Restated Revolving Facility Credit Agreement by the Required
Lenders), (b) the consent to such appointment by the Company
(which shall be deemed for all purposes to have occurred upon
execution of this Agreement by the Company), and (c) the
acceptance by BANA of its appointment as the New Agent (which shall
be deemed for all purposes to have occurred upon execution of this
Agreement by BANA), (i) DBTCA hereby resigns as Agent under
the Existing Revolving Facility Credit Agreement, and
(ii) DBTCA hereby assigns to BANA, as the New Agent, all of
the Existing Agent’s rights, powers, privileges and duties as
Agent and Revolving Facility Agent under the Existing Revolving
Facility Credit Agreement and the other Existing Revolving Facility
Documents and all other documents delivered to the Existing Agent
pursuant to and in accordance with the Existing Revolving Facility
Documents, including, without limitation, any control agreements
executed in connection with any Deposit Account or Securities
Account, and all other rights and interests in respect of the
Revolving Facility Collateral and all property, investments and
funds now or hereafter held by the Existing Agent under the
Existing Revolving Facility Documents (collectively, the “
Agent’s Rights and Obligations ”);
provided , however , that the Agent’s Rights
and Obligations shall in no event include any liabilities or
obligations arising from any act or omission of DBTCA or the
Existing Agent prior to the time of the effectiveness of the
resignation, appointment and assignment pursuant to this
Section 2 (the “ Effective Time
”).
2
Section 3.
Consent to Succession . Each of the parties hereto
hereby acknowledges and consents to the succession of the New Agent
to the Agent’s Rights and Obligations under the Revolving
Facility Documents.
Section 4.
Acceptance by New Agent . Effective as of the
Effective Time, (a) BANA hereby accepts appointment as the New
Agent under the Revolving Facility Documents, and in such capacity
accepts the assignment of the Agent’s Rights and Obligations
as set forth in Section 3 hereof, and (b) the New Agent
hereby accepts appointment as the Revolving Facility Agent under
the Intercreditor Agreement.
Section 5.
Joinder under Intercreditor Agreement . Effective as
of the Effective Time, the New Agent hereby acknowledges, agrees
and confirms that, by its execution of this Agreement, the New
Agent (for itself and as agent for and on behalf of the Revolving
Facility Secured Parties) will be bound by the terms of the
Intercreditor Agreement as the Revolving Facility Agent thereunder;
provided , however , that the New Agent shall in no
event have any liability or obligation for any act or omission of
DBTCA or the Existing Agent prior to the Effective Time. The
New Agent represents and warrants to the other parties hereto that
it is authorized under the Revolving Facility Credit Agreement to
enter into this Agreement and to be bound by the Intercreditor
Agreement on behalf of the Revolving Facility Secured Parties as
provided herein. To the extent applicable, this Agreement
shall satisfy the requirements of Section 2.10 of the
Intercreditor Agreement.
Section 6.
Further Assurances .
(a)
The Existing Agent hereby agrees to deliver or cause to be
delivered to the New Agent, promptly upon the reasonable request of
the New Agent from time to time, any and all Revolving Facility
Collateral i
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