Exhibit 10.2





Exhibit 10.2




This stipulation and agreement (this “Agreement”) memorializes the parties’ agreement (the
“RVI/DSW Settlement”) with respect to certain terms relating to a comprehensive settlement
including, without limitation, (i) a compromise and settlement of all rights, claims, defenses and
counterclaims involving Retail Ventures, Inc. and its officers, directors and subsidiaries other
than DSW (as hereinafter defined) (collectively, “RVI”) and (ii) a compromise and settlement of all
rights, claims, defenses and counterclaims involving DSW, Inc. and its officers, directors and
subsidiaries (collectively, “DSW”).



Specifically, FB Liquidating Estate, Inc., formerly known as Filene’s Basement, Inc.
(“Filene’s”), FB Services LLC and FB Leasing Services LLC (collectively, the “Debtors”), the
Official Committee of Unsecured Creditors (the “Committee”), RVI and DSW hereby stipulate and agree
as follows (unless otherwise expressly provided, such stipulation and agreement shall become
effective upon the date of entry of a final and non-appealable order of the U.S. Bankruptcy Court
for the District of Delaware approving the RVI/DSW Settlement) (the “Effective Date”):



1. Release and Expungement of RVI Note Claims: On the Effective Date, RVI’s claims
against the Debtors, including any and all principal and accrued interest, in respect of (i) the
$27,599,000 Amended and Restated Promissory Note, dated as of January 17, 2008, made by Filene’s
Basement, Inc. in favor of RVI, and (ii) the $25,000,000 Subordinated Promissory Note, dated as of
January 3, 2008, made by Filene’s Basement, Inc. in favor of RVI, shall be deemed withdrawn,
released and expunged with prejudice from the Debtors’ claims register.



2. Assumption of Pension Plan; Indemnification: On the Effective Date, Filenes’s, as
the sole sponsor of the Filene’s defined benefit pension plan (the “Pension Plan”), hereby agrees
to transfer to RVI all of its rights and obligations with respect to (i) the Pension Plan, (ii) the
Pension Plan’s related trust agreement, (iii) the assets held pursuant to such trust agreement and
(iv) any and all other related agreements, and RVI hereby agrees to accept such transfers and
assume all of Filene’s rights and obligations with respect to (i) the Pension Plan, (ii) the
Pension Plan’s related trust agreement, (iii) the assets held pursuant to such trust agreement and
(iv) any and all other related agreements (the “Pension Rights and Obligations”) and RVI agrees to
assume the Pension Rights and Obligations, which transfer and assumption shall be effective as of
the Effective Date. RVI shall indemnify Filene’s against any third party claim asserted by any
person or entity arising out of, or relating in any way to, the Pension Plan; provided,
however, that RVI shall not indemnify Filene’s for any such claim to the extent
attributable to any act or omission between April 21, 2009 and the Effective Date. As used in this
Agreement, unless otherwise expressly stated, the term “person” means any natural person,
corporation, partnership, joint venture, association, trust, unincorporated organization, limited
liability company or governmental or other entity.


 


 









 






3. [INTENTIONALLY OMITTED]




4. Allowed General Unsecured Claims of RVI:



(a) RVI shall have three allowed general unsecured claims against the Debtors (collectively,
the “RVI Claims”) for amounts owed by the Debtors to RVI or paid by RVI on account of the Debtors’
business, as follows:



(i) a claim in the amount of $6.36 million representing amounts actually paid (whether prior
to, on or after the date of this Agreement) on account of guarantees provided by RVI to factors of
the Debtors and identified on Exhibit A to this Agreement;



(ii) a claim in the amount of $3.0 million representing amounts owed by the Debtors to RVI for
inventory purchased for or provided to the Debtors prior to April 21, 2009; and



(iii) a claim in the amount of $2.3 million representing a negotiated settlement of: (w)
amounts actually paid (whether prior to, on or after the date of this Agreement) on account of
guarantees provided by RVI to landlords of the Debtors; (x) amounts owed by the Debtors to RVI for
shared services rendered to the Debtors prior to April 21, 2009; (y) amounts paid or in the future
required to be paid by RVI (whether prior to, on or after the date of this Agreement) to the
plaintiffs in connection with the trademark action Fendi Adele S.R.L., Fendi S.R.L. and Fendi
North America, Inc. v. Filene’s Basement, Inc. and Retail Ventures, Inc., Case No. 06 CV 0244
(S.D.N.Y.); and (z) any additional amounts that may be owed by the Debtors to RVI for any reason
whatsoever.



(b) The RVI Claims will receive the same treatment under the Plan (as defined below) as claims
held by other general unsecured creditors; provided, however, that the RVI Claims
shall be deemed allowed claims as of the Effective Date and shall not be objected to by any party
to this Agreement for any reason, except that any claims filed by RVI in excess of the RVI Claims
shall be deemed reduced to the amounts provided for herein without any further order of court.
Distributions on account of the RVI Claims shall be made to RVI or its designee.



5. Allowed General Unsecured Claims of DSW: DSW shall have an allowed general
unsecured claim (the “DSW Claim”) against the Debtors in the amount of $446,667. The DSW Claim
will receive the same treatment under the Plan as claims held by other general unsecured creditors;
provided, however, that the DSW Claim shall be deemed an allowed claim as of the
Effective Date and shall not be objected to by any party to this Agreement for any reason, except
that any claim filed by DSW in excess of the DSW Claim shall be deemed reduced to the amount
provided for herein without any further order of court. Distributions on account of the DSW Claim
shall be made to DSW or its designee.


 


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6. Transition Services: The Debtors shall (i) promptly execute an Assumption and
Modification Agreement substantially in the form attached hereto as Exhibit B to assume and
modify the Transition Services Agreement, dated as of April 21, 2009 (the “Transition Services
Agreement”), by and between DSW and Filene’s Basement, Inc., and (ii) promptly pay all cure costs
(which are agreed by the parties to equal $53,333 in the aggregate as of the date of this
Agreement) relating to the Transition Services Agreement.



7. Visa Check/MasterMoney Litigation Proceeds: Attached hereto as Exhibit C
is a form of letter from RVI directing that any future proceeds or distributions due and owing to
Filene’s in respect of the Visa Check/MasterMoney Antitrust Litigation be remitted to Filene’s.
RVI agrees that it will promptly remit to Filene’s any sums due to Filene’s in respect of such
litigation that may be inadvertently paid to RVI, and Filene’s agrees that it will promptly remit
to RVI any sums due to RVI in respect of such litigation that may be inadvertently paid to
Filene’s.



8. Workers’ Compensation Matters: The Debtors and the Committee agree that if they
seek to estimate any claim of any person with respect to workers’ compensation liability, if such
person was or is the beneficiary of a letter of credit or otherwise holds any collateral at the
time such claim is estimated and such person’s claim is estimated at an amount that is less than
the amount of such letter of credit or collateral, then the Debtors and the Committee may seek to
recover from such person an amount equal to but no greater than the difference between such amounts
so that such person will at all times remain fully secured. The Debtors and the Committee agree
that in estimating any claim pursuant to this paragraph 8, such estimate shall be determined in
good faith so as to reasonably estimate the ultimate total liability associated with all pending
claims and claims incurred but not reported, based on information prepared in accordance with
generally accepted actuarial methods and assumptions.



9. Mutual Releases: In consideration of the covenants contained in this Agreement,
including, without limitation, RVI’s agreements with respect to the Pension Plan pursuant to
paragraph 2 of this Agreement, and other good and valuable consideration (receipt and sufficiency
of which is hereby acknowledged) on the Effective Date:



(i) the Debtors, their estates, the Committee, and any party that may acquire standing to
prosecute estate claims on their behalf (the “Debtor Releasors”) shall be deemed to forever release
RVI and DSW and their officers, directors, agents, attorneys and employees and the Buxbaum
Releasees (as hereinafter defined) (collectively, the “RVI/DSW Releasees”) from any and all claims
and causes of action of any nature whatsoever, including, without limitation, any and all claims
pursuant to Chapter 5 of the Bankruptcy Code, that the Debtor Releasors may have against the
RVI/DSW Releasees;



(ii) the RVI/DSW Releasees shall be deemed to forever release the Debtor Releasors from any
and all claims and causes of action that the RVI/DSW Releasees may have against the Debtor
Releasors, except with respect to those claims allowed herein; and


 


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(iii) to the extent approved by the Bankruptcy Court in the context of a Chapter 11 plan of
liquidation or reorganization to be proposed in the Debtors’ Chapter 11 cases, to the extent a
creditor votes in favor of any plan of liquidation or reorganization proposed by the Debtors and/or
the Committee (the “Plan”), or to the fullest extent permitted by law, such creditor shall be
deemed to forever release the RVI/DSW Releasees from any and all claims and causes of action that
such creditor may have against the RVI/DSW Releasees related to the prepetition and postpetition
conduct of the Debtors’ business and the Debtors’ Chapter 11 cases;



provided, however, that the foregoing releases shall not limit the rights of any
party to enforce the terms of this Agreement. Approval of the release provided in paragraph 9(iii)
of this Agreement shall not serve as a condition precedent to the effectiveness of the RVI/DSW
Settlement, provided that the Debtors and the Committee shall cooperate in good faith and use their
best efforts to obtain such approval.



The releases provided under this paragraph 9 shall apply to all rights arising from or
pursuant to Chapter 5 of the Bankruptcy Code; for the avoidance of doubt, claims against RVI and/or
DSW, including under Chapter 5 of the Bankruptcy Code, shall not be used to offset RVI Claims
and/or DSW Claims. As used in this Agreement, the term “Buxbaum Releasees” refers to FB II
Acquisition Corp., its subsidiaries and other affiliates (excluding the Debtors and any of their
subsidiaries which may from time to time exist) and their respective stockholders, directors,
managers, officers, employees, agents, attorneys and representatives (excluding such persons of the
Debtors and any of their subsidiaries which may from time to time exist).



10. RVI/DSW Exculpation: To the extent approved by the Bankruptcy Court in the
context of a Plan, the RVI/DSW Releasees and their respective attorneys shall be afforded the
benefit of any and all exculpation and limitation of liability provisions afforded under the Plan
to the Debtors and the Committee. Approval of the exculpation and limitation of liability provided
in this paragraph 10 shall not serve as a condition precedent to the effectiveness of the RVI/DSW
Settlement, provided that the Debtors and the Committee shall cooperate in good faith and use their
best efforts to obtain such approval.



11. Plan Support by RVI / DSW: Subject to paragraph 12, and except as otherwise
agreed with the Debtors: each of RVI and DSW agrees to support the Plan; not to file any objection
to confirmation of the Plan; and not to support any other party in connection with any efforts to
defeat the Plan.



12. Settlement Incorporation into Plan: The parties agree that neither the Debtors
nor the Committee shall propose or support a plan of reorganization or liquidation that contains
any terms inconsistent with the terms of the RVI/DSW Settlement or materially adverse to RVI or DSW
or that otherwise fails to incorporate and/or ratify the terms of the RVI/DSW Settlement.


 


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13. Entire Agreement: This Agreement constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the parties with respect to
the subject matter hereof. This Agreement is not intended to confer, and shall not confer, upon
any person other than the parties hereto any remedies, claims of liability or reimbursement, causes
of action or any other rights whatsoever, except for the provisions of paragraph 9, which are
intended to be for the benefit of, and shall be enforceable by, each RVI/DSW Releasee. This
Agreement shall be binding upon and enforceable against any successors or assigns of any of the
parties, including, without limitation, any trustee for any of the Debtors under Chapter 7 or
Chapter 11 of the Bankruptcy Code.



14. Bankruptcy Court Approval; Comprehensive and Integrated Settlement: This
Agreement remains subject to approval of the Bankruptcy Court of the District of Delaware presiding
over the Chapter 11 cases of the Debtors. This Agreement shall terminate and be of no further
force or effect in the event that the RVI/DSW Settlement is not approved in all respects by the
United States Bankruptcy Court for the District of Delaware. The RVI/DSW Settlement is intended to
be a comprehensive and integrated settlement.



15. Governing Law; Submission to Jurisdiction: This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware without giving effect to the
principles of conflicts of law thereof. Each of the parties hereto (a) consents to submit itself
to the personal jurisdiction of the Bankruptcy Court of the District of Delaware in connection with
any dispute arising out of this Agreement, (b) agrees that it shall not attempt to deny or defeat
such personal jurisdiction by motion or other request for leave from any such court and (c) agrees
that it shall not bring any such action relating to this Agreement in any court other than the
Bankruptcy Court of the District of Delaware.



16. Descriptive Headings: The paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement.



[Signature Page to Follow]




 


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	RVI
	 	 	 	 
	 
	 	 	 	 	 	 
	Retail Ventures, Inc.	 	 
	(on behalf of itself and its subsidiaries	 	 
	other than DSW Inc. and its subsidiaries)	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ James A. McGrady	 	 
	 	 	 	 	 
	 

	 	Name:
	 	James A. McGrady	 	 
	 	 	Title:	 	Chief Executive Officer, Chief Financial Officer, President and Treasurer
	 
	 	 	 	 	 	 
	September 25, 2009	 	 
	 
	 	 	 	 	 	 
	DSW	 	 	 	 
	 
	 	 	 	 	 	 
	DSW Inc.	 	 
	(on behalf of itself and its subsidiaries)	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Douglas J. Probst	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Douglas J. Probst	 	 
	 	 	Title:	 	Executive Vice President and Chief Financial Officer
	 
	 	 	 	 	 	 
	September 25, 2009	 	 






 


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	DEBTORS:	 	OFFICIAL COMMITTEE OF UNSECURED CREDITORS:
	 
	 	 	 	 	 	 	 	 	 	 
	FB Liquidating Estate, Inc.	 	 	 	 	 	 
	(formerly Filene’s Basement, Inc.)	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Alan Cohen	 	By:	 	/s/ Lawrence Gottlieb
	 	 	 	 	 	 	 
	 

	 	Name:
	 	Alan Cohen
	 	 	 	Name:
	 	Lawrence Gottlieb
	 

	 	Title:
	 	Chief Restructuring Officer
	 	 	 	Title:
	 	Duly Authorized Signatory
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	September 25, 2009
	 
	 	 	 	 	 	 	 	 	 	 
	FB Services LLC	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Alan Cohen	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	Alan Cohen	 	 	 	 	 	 
	 

	 	Title:
	 	Chief Restructuring Officer	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	FB Leasing Services LLC	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Alan Cohen	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	Alan Cohen	 	 	 	 	 	 
	 

	 	Title:
	 	Chief Restructuring Officer	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	September 25, 2009	 	 	 	 	 	 







 


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