A NON-PAYING GUARANTOR SHALL BE
SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT TO THE PAYMENT IN FULL IN CASH OF THE
GUARANTEED OBLIGATIONS.
THIS PROVISION IS FOR THE BENEFIT OF BOTH THE AGENT,
THE ISSUING BANKS, THE LENDERS AND THE LOAN GUARANTORS AND MAY BE ENFORCED BY
ANY ONE, OR MORE, OR ALL OF THEM IN ACCORDANCE WITH THE TERMS HEREOF.
SECTION 10.11. LIABILITY CUMULATIVE.
THE LIABILITY OF EACH LOAN PARTY AS A LOAN
GUARANTOR UNDER THIS ARTICLE X IS IN ADDITION TO AND SHALL BE CUMULATIVE WITH
ALL LIABILITIES OF EACH LOAN PARTY TO THE AGENT, THE ISSUING BANKS AND THE
LENDERS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH SUCH LOAN
PARTY IS A PARTY OR IN RESPECT OF ANY OBLIGATIONS OR LIABILITIES OF THE OTHER
LOAN PARTIES, WITHOUT ANY LIMITATION AS TO AMOUNT, UNLESS THE INSTRUMENT OR
AGREEMENT EVIDENCING OR CREATING SUCH OTHER LIABILITY SPECIFICALLY PROVIDES TO
THE CONTRARY.
SECTION 10.12. RELEASE OF LOAN GUARANTORS.
NOTWITHSTANDING ANYTHING IN
SECTION 9.02(B) TO THE CONTRARY (I) A LOAN GUARANTOR THAT IS A SUBSIDIARY SHALL
AUTOMATICALLY BE RELEASED FROM ITS OBLIGATIONS HEREUNDER AND ITS LOAN GUARANTY
SHALL BE AUTOMATICALLY RELEASED UPON THE CONSUMMATION OF ANY TRANSACTION
PERMITTED HEREUNDER AS A RESULT OF WHICH SUCH LOAN GUARANTOR CEASES TO BE A
SUBSIDIARY OF THE BORROWER AND (II) SO LONG AS NO EVENT OF DEFAULT HAS OCCURRED
AND IS CONTINUING, (A) IF A LOAN GUARANTOR IS OR BECOMES AN IMMATERIAL
SUBSIDIARY, AND SUCH RELEASE WOULD NOT RESULT IN ANY IMMATERIAL SUBSIDIARY BEING
REQUIRED PURSUANT TO SECTION 5.11(E) TO BECOME A LOAN PARTY HEREUNDER (EXCEPT TO
THE EXTENT THAT ON AND AS OF THE DATE OF SUCH RELEASE, ONE OR MORE OTHER
IMMATERIAL SUBSIDIARIES BECOME LOAN GUARANTORS HEREUNDER AND THE PROVISIONS OF
SECTION 5.11(E) ARE SATISFIED UPON GIVING EFFECT TO ALL SUCH ADDITIONS AND
RELEASES) OR (B) A LOAN GUARANTOR THAT IS A SUBSIDIARY IS DESIGNATED AS AN
UNRESTRICTED SUBSIDIARY IN ACCORDANCE WITH SECTION 5.13, THEN, IN THE CASE OF
EACH OF CLAUSES (A) AND (B), SUCH LOAN GUARANTOR SHALL BE AUTOMATICALLY RELEASED
FROM ITS OBLIGATIONS HEREUNDER AND ITS LOAN GUARANTY SHALL BE AUTOMATICALLY
RELEASED UPON NOTIFICATION THEREOF FROM THE BORROWER TO THE AGENT.
IN
CONNECTION WITH ANY SUCH RELEASE, THE AGENT SHALL EXECUTE AND DELIVER TO ANY
LOAN GUARANTOR THAT IS A SUBSIDIARY, AT SUCH LOAN GUARANTOR'S EXPENSE, ALL
DOCUMENTS THAT SUCH LOAN GUARANTOR SHALL REASONABLY REQUEST TO EVIDENCE
TERMINATION OR RELEASE.
ANY EXECUTION AND DELIVERY OF DOCUMENTS PURSUANT TO THE
PRECEDING SENTENCE OF THIS SECTION 10.12 SHALL BE WITHOUT RECOURSE TO OR
WARRANTY BY THE AGENT.
107
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
NEWTON ACQUISITION MERGER SUB, INC.,
by
/s/ Kewsong Lee
Name:
Kewsong Lee
Title:
Senior Vice President
NEWTON ACQUISITION, INC.,
by
/s/ Nelson A. Bangs
Name:
Nelson A. Bangs
Title:
Senior Vice President and
General Counsel
THE NEIMAN MARCUS GROUP, INC.,
by
/s/ Nelson