EXHIBIT 10.20
TRUSTEE RESIGNATION AND AGENT APPOINTMENT AGREEMENT
THIS AGREEMENT, dated as of July 2, 2000 is made by and among The
Neiman Marcus Group, Inc., a Delaware corporation ("NMG"), Neiman Marcus
Funding Corporation, a Delaware corporation (the "Seller" and, together with
NMG, each a "Company"), The Chase Manhattan Bank (successor by merger to The
Chase Manhattan Bank, N.A.) ("Chase") and THE BANK OF NEW YORK, a banking
corporation duly organized and existing under the laws of the State of New
York ("Successor Trustee").
BACKGROUND:
A. The Companies and Chase are parties to a Pooling and Servicing
Agreement (the "Base Agreement") dated as of March 1, 1995 and a Series
1995-1 Supplement (the "Existing Supplement" and together with the Base
Agreement, the "Pooling Agreement") to the Base Agreement. The final
payment on the Investor Certificates (the "1995-1 Certificates") issued
pursuant to (and as defined in) the Existing Supplement is due on July 15,
2000 (the "Final Distribution Date"), and Chase, as trustee under the
Pooling Agreement (in such capacity, together with any successor in that
capacity, the "Trustee"), holds the funds (the "Final Distribution Funds")
necessary to make that final payment.
B. Section 11.07 of the Pooling Agreement provides that the Trustee
may at any time resign by giving written notice of such resignation to NMG,
in its capacity as Servicer, effective upon the acceptance by a successor
Trustee of its appointment as a successor Trustee.
C. Section 11.07 of the Pooling Agreement provides that, if the
Trustee shall resign, the Seller shall promptly appoint a successor Trustee.
D. Section 11.08 of the Pooling Agreement provides that any
successor Trustee appointed in accordance with the Pooling Agreement shall
execute, acknowledge and deliver to the Companies and to its predecessor
trustee an instrument accepting such appointment under the Pooling Agreement,
and thereupon the resignation of the predecessor Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and
obligations of the predecessor trustee.
E. Pursuant to Sections 6.04 and 6.07 of the Pooling Agreement,
Chase was appointed Transfer Agent and Registrar (the "Registrar") and Paying
Agent.
F. The Company desires to appoint Successor Trustee as Trustee,
Paying Agent and Registrar to succeed Chase in such capacities under the
Pooling Agreement, except that Chase will continue as Paying Agent and
Registrar for the 1995-1 Certificates pursuant to Section 1.5 below.
G. Successor Trustee is willing to accept such appointment as
successor Trustee, Paying Agent and Registrar under the Pooling Agreement.
NOW, THEREFORE, the Companies, Chase and Successor Trustee, for and
in consideration of the premises and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby consent and agree as follows:
1.THE RESIGNING TRUSTEE
1.1 Pursuant to Section 11.07 of the Pooling Agreement, Chase hereby
notifies NMG, as the Servicer, that Chase is hereby resigning as Trustee
under the Pooling Agreement. In its capacity as the resigning Trustee, Chase
is referred to below as "Resigning Trustee."
1.2 Resigning Trustee hereby represents and warrants to Successor
Trustee that:
No covenant or condition contained in the Pooling Agreement has
been waived by Resigning Trustee or, to the best knowledge of
responsible officers of Resigning Trustee's corporate trust
department, by the Holders of the percentage in aggregate
principal amount of the 1995-1 Certificates required by the
Pooling Agreement to effect any such waiver.
There is no action, suit or proceeding pending or, to the best
knowledge of responsible officers of Resigning Trustee's
corporate trust department, threatened against Resigning
Trustee before any court or any governmental authority arising
out of any act or omission of Resigning Trustee as Trustee
under the Pooling Agreement.
As of the effective date of this Agreement, Resigning Trustee
will hold no moneys or property under the Pooling Agreement,
other than the Final Distribution Funds.
Pursuant to Section 6.02 of the Pooling Agreement, Resigning
Trustee duly authenticated and delivered, on March 15, 1995,
$300,000,000 aggregate principal amount of 1995-1 Certificates,
comprised of (a) $225,000,000 Class A Certificates, which have
been paid in full, (b) $21,000,000 Class B Certificates (the
"Class B Certificates"), which are to be paid in full with the
Final Distribution Funds and (c) $54,000,000 of Class C
Certificates (the "Class C Certificates"), which are registered
in the name of the Seller and will be presented for
cancellation on or about the Final Distribution Date.
This Agreement has been duly authorized, executed and delivered
on behalf of Resigning Trustee and constitutes its legal, valid
and binding obligation, enforceable in accordance with its
terms.
No responsible officer of the Resigning Trustee's corporate
trust department has received notice of any event that has
occurred and is continuing which is, or after notice or lapse
of time would become, an Early Amortization Event under the
Pooling Agreement.
1.3 Resigning Trustee hereby assigns, transfers, delivers and
confirms to Successor Trustee all right, title and interest of Resigning
Trustee in and to the trust under the Pooling Agreement and all the rights,
powers and trusts of the Trustee under the Pooling Agreement, subject to
Section 1.5 below. Resigning Trustee shall execute and deliver such
further instruments and shall do such other things as Successor Trustee may
reasonably require so as to more fully and certainly vest and confirm in
Successor Trustee the rights, powers and trusts hereby assigned,
transferred, delivered and confirmed to Successor Trustee as Trustee,
Paying Agent and Registrar.
1.4 If the Class B Certificates are not paid in full, or the Class C
Certificates are not cancelled, in either case on the Final Distribution
Date, Resigning Trustee shall deliver to Successor Trustee, promptly after
the Final Distribution Date, all of the documents listed on Exhibit A hereto.
1.5 Chase shall continue as Paying Agent and Registrar for the
Class B Certificates and the Class C Certificates. Although the Companies
and the Successor Trustee are amending and restating the Base Agreement as
of the date of this Agreement, such amendment and restatement shall not
affect in any way the rights, duties or obligations of Chase as Paying
Agent and Registrar for the Class B Certificates and Class C Certificates,
which Chase shall carry out under the terms of the Pooling Agreement as in
effect prior to the amendment and restatement, without giving effect to the
amendment and restatement. The Resigning Trustee hereby retains any rights
under the Pooling Agreement which accrued to the benefit of the Resigning
Trustee prior to the effective date of this resignation.
2.THE COMPANIES
2.1 The Companies hereby accept the resignation of Resigning Trustee
as Trustee, Paying Agent and Registrar under the Pooling Agreement.
2.2 The Seller hereby appoints Successor Trustee as Trustee, Paying
Agent and Registrar under the Pooling Agreement to succeed to, and hereby
vests Successor Trustee with, all the rights, powers, duties and obligations
of Resigning Trustee under the Pooling Agreement with like effect as if
originally named as Trustee, Paying Agent and Registrar in the Pooling
Agreement, subject to Section 1.5 above.
2.3 If the 1995-1 Class B Certificates are not paid in full on the
Final Distribution Date, the Companies shall cause a notice, substantially
in the form of Exhibit B annexed hereto, to be sent to each Holder of the
1995-1 Class B Certificates in accordance with the provisions of Section
11.08 of the Pooling Agreement.
2.4 Each Company hereby represents and warrants to Resigning Trustee
and Successor Trustee that:
It is a corporation duly and validly organized and existing
pursuant to the laws of the State of Delaware.
The Pooling Agreement was validly and lawfully executed and
delivered by such Company and the 1995-1 Certificates were
validly issued.
It has performed or fulfilled prior to the date hereof, and
will continue to perform and fulfill after the date hereof,
each covenant, agreement, condition, obligation and
responsibility under the Pooling Agreement.
No event has occurred and is continuing which is, or after
notice or lapse of time would become, an Early Amortization
Event under the Pooling Agreement.
No covenant or condition contained in the Pooling Agreement has
been waived by such Company or, to the best of such Company's
knowledge, by Holders of the percentage in aggregate principal
amount of the 1995-1 Certificates required to effect any such
waiver.
There is no action, suit or proceeding pending or, to the best
of such Company's knowledge, threatened against such Company
before any court or any governmental authority arising out of
any act or omission of such Company under the Pooling
Agreement.
This Agreement has been duly authorized, executed and delivered
on behalf of such Company and constitutes its legal, valid and
binding obligation, enforceable in accordance with its terms.
All conditions precedent relating to the appointment of The
Bank of New York as successor Trustee, Paying Agent and
Registrar under the Pooling Agreement have been complied with
by such Company.
3. THE SUCCESSOR TRUSTEE
3.1 Successor Trustee hereby represents and warrants to Resigning
Trustee and to the Company that:
Successor Trustee is eligible under the provisions of Section
11.06 of the Pooling Agreement to act as Trustee under the
Pooling Agreement.
This Agreement has been duly authorized, executed and delivered
on behalf of Successor Trustee and constitutes its legal, valid
and binding obligation, enforceable in accordance with its
terms.
3.2 Successor Trustee hereby accepts its appointment as successor
Trustee, Paying Agent and Registrar under the Pooling Agreement and assumes
the rights, powers, duties and obligations of Resigning Trustee as Trustee,
Paying Agent and Registrar under the Pooling Agreement, upon the terms and
conditions set forth therein, with like effect as if originally named as
Trustee, Paying Agent and Registrar under the Pooling Agreement, subject to
Section 1.5 above.
4 .MISCELLANEOUS
4.1 Except as otherwise expressly provided herein or unless the
context otherwise requires, all terms used herein which are defined in the
Pooling Agreement shall have the meanings assigned to them in the Pooling
Agreement.
4.2 This Agreement and the resignation, appointment and acceptance
effected hereby shall be effective as of the opening of business on July 2,
2000.
4.3 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
4.4 This Agreement may be executed in any number of counterparts
each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
4.5 The Companies, Resigning Trustee and Successor Trustee hereby
acknowledge receipt of an executed and acknowledged counterpart of this
Agreement and the effectiveness thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Trustee
Resignation and Agent Appointment Agreement to be duly executed and
acknowledged and their respective seals to be affixed hereunto and duly
attested all as of the day and year first above written.
[SEAL]
Attest: THE NEIMAN MARCUS GROUP,
INC., a Delaware corporation
By: By:
Name: Name:
Title: Title:
[SEAL]
Attest: NEIMAN MARCUS FUNDING
CORPORATION, a Delaware
corporation
By: By:
Name: Name:
Title: Title:
[SEAL]
Attest: THE CHASE MANHATTAN
BANK, as Resigning Trustee
By: By:
Name: Name:
Title: Title:
[SEAL]
Attest: THE BANK OF NEW YORK, a
New York banking corporation, as
Successor Trustee
By: By:
Name: Name:
Title: Title:
STATE OF )
: ss:
COUNTY OF )
On the day of , 2000,
before me personally came to me known,
who, being by me duly sworn, did depose and say that he/she resides at
__________________________________; that he/she is ____________________ of
The Neiman Marcus Group, Inc., one of the corporations described in and which
executed the above instrument; that he/she knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by the authority of the Board of Directors of said
corporation; and that he/she signed his/her name thereto by like authority.
Notary Public
STATE OF )
: ss:
COUNTY OF )
On the day of , 2000,
before me personally came to me known,
who, being by me duly sworn, did depose and say that he/she resides at
__________________________________; that he/she is ____________________ of
Neiman Marcus Funding Corporation, one of the corporations described in and
which executed the above instrument; that he/she knows the corporate seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by the authority of the Board of Directors of
said corporation; and that he/she signed his/her name thereto by like
authority.
Notary Public
STATE OF )
: ss:
COUNTY OF )
On the day of , 2000, before me personally came
to me known, who, being by me duly sworn, did
depose and say that he/she resides at __________________________________;
that he/she is ____________________ of The Chase Manhattan Bank, one of the
corporations described in and which executed the above instrument; that
he/she knows the corporate seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by the
authority of the Board of Directors of said corporation; and that he/she
signed his/her name thereto by like authority.
Notary Public
STATE OF )
: ss:
COUNTY OF )
On the day of , 2000, before me personally came
to me known, who, being by me duly sworn, did
depose and say that he/she resides at __________________________________;
that he/she is ____________________ of The Bank of New York, one of the
corporations described in and which executed the above instrument; that
he/she knows the corporate seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by the
authority of the Board of Directors of said corporation; and that he/she
signed his/her name thereto by like authority.
Notary Public
EXHIBIT A
Documents to be delivered to Successor Trustee
1. Executed copy of Pooling Agreement.
2. File of closing documents from initial issuance.
3. Certified list of Holders as of , including
certificate detail and all "stop transfers" and the reason for such
"stop transfers" (or, alternatively, if there are a substantial number
of registered Holders, the computer tape reflecting the identity of
such Holders).
4. Copies of any official notices sent by the Trustee to all the
Holders of the 1995-1 Certificates pursuant to the terms of the Pooling
Agreement during the past twelve months.
EXHIBIT B
[NMG LETTERHEAD]
NOTICE
To the Holders of of .
NOTICE IS HEREBY GIVEN, pursuant to Section 11.08 of the Pooling and
Servicing Agreement (the "Pooling Agreement") dated as of March 1, 1995 among
Neiman Marcus Funding Corporation, (the "Seller"), The Neiman Marcus Group,
Inc. and The Chase Manhattan Bank, as Trustee, that The Chase Manhattan Bank
has resigned as Trustee, Paying Agent and Transfer Agent and Registrar under
the Pooling Agreement.
Pursuant to Sections 6.04, 6.07 and 11.08, respectively, of the Pooling
Agreement, The Bank of New York, a corporation duly organized and existing
under the laws of the State of New York, has accepted appointment as Trustee,
Paying Agent and Transfer Agent and Registrar under the Pooling Agreement.
The address of the corporate trust office of The Bank of New York is 101
Barclay Street, New York, New York 10286.
The Chase Manhattan Bank resignation as Trustee, Paying Agent and Transfer
Agent and Registrar and The Bank of New York's appointment as successor
Trustee, Paying Agent and Transfer Agent and Registrar were effective as of
the opening of business on July 2, 2000.
Dated: Chestnut Hill, Massachusetts
July __, 2000
Very truly yours,
THE NEIMAN MARCUS GROUP, INC.
BY:
Name:
Title: