SECOND
AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT
This
Second Amendment to Second Amended and Restated Loan and Security
Agreement (the “ Second Amendment ”) is made as
of February 11, 2009 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, as amended by that certain First Amendment to Second Amended
and Restated Loan and Security Agreement dated as of
September 18, 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 requested that the Administrative Agent and the
Revolving Credit Lenders agree to permit a last out participation
in the Revolving Credit Loans by the Parent, and in connection
therewith have requested that the Administrative Agent and the
Revolving Credit Lenders
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agree to amend the definition of Availability to account for the
amounts to be funded through the participation of the
Parent.
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C.
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The Administrative Agent and the Revolving Credit Lenders have
agreed to 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
. Section (i)(B) of the definition of “Gross
Availability” set forth in Article 1 of Loan Agreement
is hereby amended to read as follows:
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(B)
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The Tranche A-1 Borrowing Base plus the Permitted OverAdvance (or
if the Tranche A-1 Commitments have been terminated, the Tranche A
Borrowing Base plus the Permitted OverAdvance)
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3.
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Amendment to Loan Agreement
. Article 1 of Loan Agreement is hereby amended by adding the
following definition in alphabetical order therein:
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“Permitted OverAdvance"
: Initially $7,500,000.00, reduced by the amount funded as a
Participation by the Parent and disbursed by the Agent (as defined
in the Participation Agreement) in accordance with the terms of a
certain Last Out Participation Agreement dated as of
February 11, 20
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