EXHIBIT 10.13(d)
FLEET RETAIL GROUP INC.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
dated as of January 24, 2005
RE: WAIVER REGARDING DELIVERY OF FINANCIAL STATEMENTS
Reference is hereby made to the AMENDED AND RESTATED DEBTOR-IN-POSSESSION
AND EXIT CREDIT AGREEMENT dated as of June 25, 2004 (as amended and in effect
from time to time, the "Credit Agreement"), among FOOTSTAR, INC., a debtor and
debtor-in-possession, a Delaware corporation, having its chief executive office
at 000 XxxXxxxxx Xxxxxxxxx, Xxxxxx, XX 00000, as Lead Borrower for the
Borrowers, being said FOOTSTAR, INC. and FOOTSTAR CORPORATION, a debtor and
debtor-in-possession, a Texas corporation, having its principal place of
business at 000 XxxXxxxxx Xxxxxxxxx, Xxxxxx, XX 00000; FLEET NATIONAL BANK and
the other financial institutions party to the Credit Agreement as hereinafter
defined (collectively, the "Lenders"); FLEET NATIONAL BANK, as Administrative
Agent and Swingline Lender, a national banking association having a place of
business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; FLEET RETAIL GROUP,
INC. (formerly known as Fleet Retail Finance Inc.), as Collateral Agent for the
Lenders, a Delaware corporation having its principal place of business at 00
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; GENERAL ELECTRIC CAPITAL CORPORATION,
as syndication agent; and XXXXX FARGO FOOTHILL, LLC, as documentation agent. All
capitalized terms not otherwise defined herein which are defined in the Credit
Agreement shall have the same meanings herein as specified in the Credit
Agreement.
SECTION 1. DELIVERY OF FINANCIAL STATEMENTS. Pursuant to Section 6.1(a) of
the Credit Agreement, the Borrowers are required to deliver to the Agents, no
later than the earlier to occur of (i) January 31, 2005 and (ii) the Exit
Facility Date with respect to the 2002 and 2003 fiscal years of the Lead
Borrower and within 90 days after the end of each fiscal year thereafter, its
consolidated balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such year. The Borrowers have
informed the Agents that they will be unable to comply with the provisions of
Section 6.1(a) of the Credit Agreement with respect to the 2003 and 2004 fiscal
years of the Lead Borrower. Such noncompliance will constitute an Event of
Default under Section 8.1(1)(d) of the Credit Agreement. In anticipation of such
Event of Default, the Borrowers have requested that the Agents and the Lenders
(i) grant an extension of time in which to satisfy the requirements of Section
6.1(a) of the Credit Agreement and (ii) waive any Default or Event of Default
which may be caused by the application of the provisions of 8.1(1)(d) of the
Credit Agreement in connection therewith.
SECTION 2. SPECIFIC WAIVER. Solely in connection with the Borrowers'
obligations under Section 6.1(a) of the Credit Agreement for the 2003 and 2004
fiscal years of the Lead Borrower, the Lenders hereby waive any Default or Event
of Default which may be caused by the application of the provisions of Section
8.1(1)(d) of the Credit Agreement in respect of the Borrowers' failure to
satisfy the reporting requirements set forth in Section 6.1(a) of the Credit
Agreement, provided that the Agents receive, prior to the Exit Facility Date,
the Borrowers' consolidated balance sheet and related statements of operations,
stockholders' equity and cash
flows for each of the 2003 and 2004 fiscal years of the Lead Borrower, all in
the form prescribed in Section 6.1(a) of the Credit Agreement.
SECTION 3. CONDITIONS TO EFFECTIVENESS. The provisions of this Waiver
shall become effective once this Waiver shall have been duly executed and
delivered by each of the Borrowers, the Agents and the Required Lenders.
SECTION 4. MISCELLANEOUS. The waivers granted herein are limited strictly
to their terms, shall apply only to the specific transactions described herein,
shall not extend to or affect any of the Borrowers' other obligations contained
in the Credit Agreement and the other Loan Documents. The Agents and the Lenders
shall not have any obligation to issue any further waivers with respect to the
subject matter of this Waiver or any other matter. Except as expressly set forth
herein, nothing contained herein shall be deemed to be a waiver of, or shall in
any way impair or prejudice, (a) any obligations of the Borrowers under the
Credit Agreement and the other Loan Documents, or (b) any rights of the Agents
or the Lenders under the Credit Agreement or the other Loan Documents.
This Waiver may be executed in any number of counterparts and by each
party on a separate counterpart, each of which when so executed and delivered
shall be an original, but all of which together shall constitute one instrument.
[Remainder of page intentionally left blank; signature pages to follow]
IN WITNESS WHEREOF, the undersigned have duly executed this Waiver as of
the date first set forth above.
FOOTSTAR, INC.,
as Lead Borrower and as a Borrower
By: /s/ XXXXXXX XXXXX
---------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Treasurer
FOOTSTAR CORPORATION,
as a Borrower
By: /s/ XXXXXXX XXXXX
---------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Treasurer
FLEET NATIONAL BANK,
as Administrative Agent, as Swingline Lender and
as Issuing Bank
By: /s/ XXXXX XXXXXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Director
FLEET RETAIL GROUP, INC.,
as Collateral Agent
By: /s/ XXXXX XXXXXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Director
GENERAL ELECTRIC CAPITAL
CORPORATION,
as Syndication Agent and as a Lender
By: /s/ XXXXXXX XXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Duly Authorized Signatory
XXXXX FARGO FOOTHILL, LLC,
as Documentation Agent and as a Lender
By: /s/ XXXXXX XXX
--------------------------------
Name: Xxxxxx Xxx
Title: VP
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ XXXXXX XXXXXX
--------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
AMSOUTH BANK,
as a Lender
By: /s/ XXXXX X. XXXXXX
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-in-Fact
NATIONAL CITY BUSINESS CREDIT, INC.,
as a Lender
By: /s/ XXXXXX X. XXXX, XX.
--------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Vice President
