AMENDMENT NO. 6 TO CREDIT AGREEMENT
This Amendment, dated as of January 30, 2004 (this "AMENDMENT"), is by
and among Footstar, Inc. (the "LEAD BORROWER") and Footstar Corporation
(collectively, with the Lead Borrower, the "BORROWERS"), the financial
institutions named as parties hereto as lenders (the "LENDERS"), Fleet National
Bank, as swingline lender and as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT"), Fleet Retail Group, Inc. (formerly known as Fleet
Retail Finance Inc.), as collateral agent (in such capacity, the "COLLATERAL
AGENT"), Congress Financial Corporation and Xxxxx Fargo Retail Finance, LLC, as
syndication agents (in such capacity, the "SYNDICATION Agents") and JPMorgan
Chase Bank, as documentation agent (in such capacity, the "DOCUMENTATION
AGENT").
WHEREAS, the Borrowers, the Lenders, the Administrative Agent, the
Collateral Agent, the Syndication Agents and the Documentation Agent are parties
to that certain Credit Agreement dated as of October 18, 2002 (as amended,
extended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"). Capitalized terms used herein without definition shall have the
meanings assigned to them in the Credit Agreement.
WHEREAS, the Borrowers have requested a further extension of time by
which they will be required to deliver to the Administrative Agent and the
Lenders their quarterly and annual financial statements and corresponding
Compliance Certificates pursuant to Sections 6.1(a), (b) and (c) of the Credit
Agreement for the fiscal quarters ended September 28, 2002, March 29, 2003, June
28, 2003 and September 27, 2003 and the fiscal year ended December 28, 2002.
NOW, THEREFORE, in consideration of the premises set forth above, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Borrowers, the Lenders and the Administrative Agent
agree as follows:
1. EXTENSION UNDER CREDIT AGREEMENT. The Administrative Agent and each
of the Lenders hereby agree that the time by which the Borrowers shall be
required to deliver (i) their annual financial statements under Section 6.1(a)
for the fiscal year ended December 28, 2002 and the corresponding Compliance
Certificate required by the Credit Agreement, and (ii) their quarterly financial
statements under Section 6.1(b) and the corresponding Compliance Certificates
required by the Credit Agreement, for the fiscal quarters ended September 28,
2002, March 29, 2003, June 28, 2003 and September 27, 2003, respectively, is
hereby extended in each case to the earlier of: (A) the date by which the Lead
Borrower files with the Securities and Exchange Commission its Form 10-Q reports
for the fiscal quarters ended September 28, 2002, March 29, 2003, June 28, 2003,
and September 27, 2003, respectively, and its Form 10-K report for the fiscal
year ended December 28, 2002, or (B) February 11, 2004.
2. CONDITIONS TO EFFECTIVENESS. The extension contemplated by this
Amendment shall become effective upon the satisfaction of the following
conditions:
(a) the Administrative Agent shall have received counterparts
hereof executed by each of the Required Lenders, the Administrative
Agent and the Borrowers, together with an executed Acknowledgement and
Consent of Guarantors in the form attached hereto;
(b) all representations and warranties contained in this
Amendment shall be true and correct in all material respects;
(c) no event shall have occurred and be continuing which
constitutes an Event of Default or a Default;
(d) the Borrowers shall have paid the fees agreed to be paid
by the Borrowers in connection with this Amendment; and
(e) all legal matters incident to the transaction hereby
contemplated shall be reasonably satisfactory to the Administrative
Agent's counsel.
3. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. On and after the
effective date of this Amendment, each reference in the Credit Agreement to
"this Agreement", "hereunder", "hereof" or words of like import referring to the
Credit Agreement shall mean and be a reference to the Credit Agreement, as
modified by this Amendment, and each reference in the other Loan Documents to
"the Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement shall mean and be a reference to the Credit
Agreement, as modified by this Amendment. The Credit Agreement and all other
Loan Documents are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed.
4. SPECIFIC REPRESENTATIONS AS TO THE ACCOUNTING RESTATEMENT MATTER.
Each of the Borrowers represents and warrants that the maximum potential impact
to earnings with respect to the Accounting Restatement Matter does not and will
not exceed $55,000,000 in the aggregate. In the event such maximum aggregate
amount exceeds $55,000,000, such event shall constitute an Event of Default
under Section 8.1(c) of the Credit Agreement. Each of the Borrowers further
represents and warrants that the Accounting Restatement Matter in the aggregate
does not and will not negatively affect the Collateral or the Borrowing Base in
any manner and the financial covenant set forth in Section 7.11(a) of the Credit
Agreement will not be breached with respect to the fiscal quarter ended
September 27, 2003 as a result of the Accounting Restatement Matter. In the
event the Accounting Restatement Matter in the aggregate negatively affects the
Collateral or the Borrowing Base or in the event such financial covenant is
breached as a result of the Accounting Restatement Matter, the same shall
constitute an Event of Default under Section 8.1(c) of the Credit Agreement.
5. MISCELLANEOUS.
(a) REPRESENTATIONS AND WARRANTIES. Each of the Borrowers
represents and warrants that:
(i) it is duly organized, validly existing
corporation in good standing under the laws of the
jurisdiction of its organization and has the corporate power
and authority to execute, deliver and carry out the terms and
provisions of this Amendment and has taken or caused to be
taken all necessary corporate action to authorize the
execution, delivery and performance of this Amendment;
(ii) no consent of any other person, including,
without limitation, shareholders, creditors or Subsidiaries of
either of the Borrowers, and no action of, or filing with, any
governmental or public body or authority, is required to
authorize, or is otherwise required in connection with the
execution, delivery and performance of, this Amendment;
-2-
(iii) this Amendment has been duly executed and
delivered by a duly authorized officer on behalf of each of
the Borrowers, and constitutes its legal, valid and binding
obligations, enforceable in accordance with its terms, except
as enforcement thereof may be subject to the effect of any
applicable (A) bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights
generally and (B) general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at
law);
(iv) the execution, delivery and performance of this
Amendment will not violate any law, statute or regulation
applicable to either of the Borrowers or any order or decree
of any court or governmental instrumentality applicable to it,
or conflict with, or result in the breach of, or constitute a
default under, any of its contractual obligations;
(v) the representations and warranties contained in
the Credit Agreement and the other Loan Documents are true and
correct in all material respects on and as of the date of this
Amendment as though made at and as of such date, except to the
extent the facts upon which such representations and
warranties are based may in the ordinary course be changed by
transactions or events permitted or not prohibited by the
Credit Agreement. Since the Closing Date, no event, condition
or circumstance has occurred or existed which could reasonably
be expected to have a Material Adverse Effect; and
(vi) without limiting the representations and
warranties contained herein, since the Closing Date, none of
the Loan Parties have changed their respective jurisdictions
or organization.
(b) NO WAIVER. Nothing herein contained shall constitute a waiver or be
deemed to be a waiver, of any existing Default or Event of Default, and the
Lenders and the Administrative Agent are entering into this Amendment without
prejudice and hereby reserve all rights and remedies granted to them by the
Credit Agreement, by the other Loan Documents, by law and otherwise.
(c) COUNTERPARTS. This Amendment may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement. Delivery of an executed counterpart of a signature
page to this Amendment by facsimile shall be effective as delivery of a manually
executed counterpart of this Amendment.
(d) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES).
[SIGNATURE PAGES TO FOLLOW]
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective duly authorized officers, as of the date first
above written.
FOOTSTAR, INC., as a Borrower
By: XXXXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: EVP & CAO
FOOTSTAR CORPORATION, as a Borrower
By: XXXXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: EVP & CAO
SIGNATURE PAGE TO AMENDMENT NO. 6 TO CREDIT AGREEMENT
-4-
FLEET NATIONAL BANK, as Administrative
Agent and as Lender
By: XXXXX XXXXXXXXXXX
-----------------------------------------
Name: Xxxxx Vereauteren
Title: Vice President
FLEET RETAIL GROUP, INC., as Collateral Agent
By: XXXXX XXXXXXXXXXX
-----------------------------------------
Name: Xxxxx Vereauteren
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 6 TO CREDIT AGREEMENT
-5-
BACK BAY CAPITAL FUNDING LLC
By: XXXXXXX X. X'XXXXXX
-----------------------------------------
Name: Xxxxxxx X. X'Xxxxxx
Title: Director
SIGNATURE PAGE TO AMENDMENT NO. 6 TO CREDIT AGREEMENT
-6-
CONGRESS FINANCIAL CORPORATION
By: XXXXX XXXX
-----------------------------------------
Name: Xxxxx Xxxx
Title: Asst. VP
SIGNATURE PAGE TO AMENDMENT NO. 6 TO CREDIT AGREEMENT
-7-
XXXXX FARGO FOOTHILL
(fkaWELLS FARGO RETAIL FINANCE, LLC)
By: XXXXXX XXX
-----------------------------------------
Name: Xxxxxx Xxx
Title: AVP
SIGNATURE PAGE TO AMENDMENT XX. 0 XX XXXXXX XXXXXXXXX
-0-
XXXXXXXX CHASE BANK
By: XXXX X. XXXXXXX
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 6 TO CREDIT AGREEMENT
-9-
THE CIT GROUP/BUSINESS CREDIT, INC.
By: XXXXXX XXXXXX
-----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 6 TO CREDIT AGREEMENT
-10-
UPS CAPITAL CORPORATION
By: XXXX X. XXXXXXXX
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Portfolio Manager
SIGNATURE PAGE TO AMENDMENT NO. 6 TO CREDIT AGREEMENT
-11-
AMSOUTH BANK
By:
-----------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 6 TO CREDIT AGREEMENT
-12-
NATIONAL CITY BANK
By: XXXXXX X. XXXXXXXXX
-----------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO AMENDMENT NO. 6 TO CREDIT AGREEMENT
-13-
ORIX FINANCIAL SERVICES, INC.
By: XXXXXX XXXXXXXX
-----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 6 TO CREDIT AGREEMENT
-14-
SIEMENS FINANCIAL SERVICES, INC.
By: XXXX XXXXXX
--------------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President, Asset
Based Lending
SIGNATURE PAGE TO AMENDMENT NO. 6 TO CREDIT AGREEMENT
-15-
ACKNOWLEDGEMENT AND CONSENT BY GUARANTORS
Each of the undersigned Guarantors does hereby acknowledge and consent
to the execution, delivery and performance of the within foregoing Amendment,
confirms the continuing effect of such Guarantor's guarantee of the Obligations
after giving effect to the foregoing Amendment, and agrees to the provisions of
the within and foregoing Amendment.
Accepted and agreed to as of January 30, 2004 by the Facility
Guarantors:
FOOTSTAR CENTER, INC.
FOOTACTION CENTER, INC.
ATHLETIC CENTER, INC.
FA HQ, INC.
FEET HQ, INC.
FWS I, INC.
FWS II, INC.
STELLAR WHOLESALING, INC.
FEET CENTER, INC.
MELDISCO H.C., INC.
APACHE-MINNESOTA XXXX XXXX, INC.
MILES SHOES MELDISCO LAKEWOOD, COLORADO, INC.
MALL OF AMERICA FAN CLUB, INC.
NEVADA FEET, INC.
FEET OF COLORADO, INC.
LFD I, INC.
LFD II, INC.
LFD OPERATING, INC.
FOOTSTAR HQ, LLC
SHOE ZONE CENTER, INC.
LFD TODAY, INC.
ATHLETIC ATTIC OF TEXAS, INC.
FLORIDA MALL FEET, INC.
KNOXVILLE FEET, INC.
XXXXX FEET, INC.
and each of their Subsidiaries, including all
other Facility Guarantors
By: XXXXXX XXXXX
-------------
Duly Authorized Signatory as to all
-16-
