FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT
This First
Amendment to Second Amended and Restated Loan and Security
Agreement (the “ First Amendment ”) is made as
of September 12, 2008 by and among
National City
Business Credit, Inc., an Ohio corporation with offices at 2300
Crown Colony Drive, Suite 202, Quincy, Massachusetts 02169, as
administrative agent (in such capacity, herein the “
Administrative Agent ”), for the ratable benefit of
the “ Revolving Credit Lenders ”, who are, at
present, those financial institutions identified on the signature
pages of this Agreement and who in the future are those Persons (if
any) who become “Revolving Credit Lenders” in
accordance with the provisions of the Loan Agreement (as defined
herein);
National City
Business Credit, Inc., as Collateral Agent (in such capacity,
herein the “ Collateral Agent ”), for the
ratable benefit of the Revolving Credit Lenders;
Wells Fargo Retail
Finance LLC and Wachovia Capital Finance Corporation (Central), as
Co-Documentation Agents;
The Revolving
Credit Lenders;
Filene’s
Basement, Inc. (the “ Borrower ”), a Delaware
corporation with its principal executive offices at 3241
Westerville Road, Columbus, Ohio 43224-3751;
in
consideration of the mutual covenants contained herein and benefits
to be derived herefrom,
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A.
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Reference is hereby made to that
certain Second Amended and Restated Loan and Security Agreement
dated as of January 23, 2008 (the “ Loan
Agreement ”) among (i) the Borrower, (ii) the
Revolving Credit Lenders, (iii) the Administrative Agent,
(iv) the Collateral Agent, and (v) the Co-Documentation
Agents.
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B.
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The
Borrower has advised the Administrative Agent and the Majority
Lenders that Retail Ventures, Inc., an Ohio corporation (the
“ Parent ”) intends to purchase certain premium
income exchangeable securities (the “ PIES ”, as
such term is further defined in the Loan Agreement).
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C.
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The
Parent’s purchase of the PIES without the consent of the
Majority Lenders would constitute an Event of Default under the
Loan Agreement.
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D.
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The
Parent and the Borrower have requested that the Revolving Credit
Lenders consent to the Parent’s purchase of the PIES, waive
any Events of Default arising therefrom, and modify and amend
certain provisions of the Loan Agreement.
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E.
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The
Revolving Credit Lenders have agreed to so consent, waive and
modify certain provisions of the Loan Agreement as provided
herein.
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Accordingly,
the parties hereto agree as follows:
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1.
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Definitions . Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to
such terms in the Loan Agreement.
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2.
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Amendment to Loan
Agreement .
Article 1 of Loan Agreement is hereby amended by amending the
definition of the term “Permitted Investment” by
deleting the word “and” at the end of clause (o),
relettering clause (o) as clause (p) and inserting the
following new clause (o):
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“(o)
Investments by the Parent consisting of the repurchase of the PIES;
and”
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3.
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Ratification . Each of the Loan Parties hereby
ratifies, confirms, and reaffirms all representations, warranties,
and covenants set forth in the Loan Agreement and the other Loan
Documents as of the date hereof. Except as e
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