Waiver to Credit Agreement


 Exhibit 10.1 
  
 WAIVER TO CREDIT AGREEMENT 
  
 This WAIVER, dated as of November 12, 2002 (this “Waiver”), 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 Finance Inc., as collateral agent (in such capacity, the “Collateral Agent”), Congress Financial
Corporation and Wells 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 have entered into a Credit Agreement, dated as of October 18, 2002 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), with capitalized terms being defined therein and not defined but used herein having the meanings assigned to them in the Credit Agreement; 
  

WHEREAS, the Borrowers have informed the Administrative Agent that they are conducting a review of their financial statements in coordination with
their independent auditors, and, based upon such review to date, the Borrowers believe that accounts payable, retained earnings, and net income of the Lead Borrower and its Subsidiaries for prior fiscal periods through September 28, 2002, will be
restated (the “Accounting Restatement Matter”); 
  
 WHEREAS, the Borrowers have further informed the Administrative Agent that the aggregate amount of such restated accounts payable, retained earnings, and net income is expected to be not greater than $35,000,000, will only affect the fiscal
periods identified above and that the adjustment is not expected have a Material Adverse Effect; 
  
 WHEREAS, due to the Accounting Restatement Matter, the Borrowers anticipate they may file their Form 10Q for the fiscal quarter ending September 28, 2002
late with the Securities and Exchange Commission, and the Borrowers have requested an extension of time by which they will be required to deliver to the Administrative Agent and the Lenders their quarterly financial statements and Compliance
Certificate pursuant to Section 6.1(b) and (c) of the Credit Agreement; and 
  
 WHEREAS, the Borrowers have requested that the Administrative Agent and the Lenders waive misrepresentations, if any, set forth in Section 4.4 or 4.11 of the Credit Agreement arising out of the Accounting Restatement
Matter. 
  
 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. Waivers Under Credit Agreement. The Administrative
Agent and each of the Lenders hereby agrees as follows: 






 (a) that the time by which the Borrowers shall be required to deliver their quarterly financial
statements under Section 6.1(b) and their quarterly Compliance Certificate under Section 6.1(c) of the Credit Agreement, both for the fiscal quarter ended September 28, 2002, is hereby extended to the earlier of: (i) the date by which the Lead
Borrower files with the Securities and Exchange Commission its Form 10Q report for the fiscal quarter ended September 28, 2002, or (ii) January 12, 2003; and 
  
 (b) to hereby waive any misrepresentation, if any, solely arising out of the Accounting Restatement Matter, with respect to (i) the condition and
representation set forth in Section 5.1 (h) and the second sentence of Section 4.4 stating that the financial statements heretofore delivered to the Administrative Agent and the Lenders fairly present and fairly represent in all material respects,
the business and financial condition and position, results of operations and cash flows of the Lead Borrower and its Subsidiaries, and (ii) the representation set forth in the second sentence of Section 4.11 stating that none of the financial
statements furnished to the Administrative Agent or any Lender contains any material misstatement of fact or omits to state any material fact. 
  
 2. Conditions to Effectiveness. The waivers contemplated by this Waiver 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; 
  
 (b) all representations and warranties contained in this Waiver shall be true and correct in all material respects; and 
  
 (c) with the exception of the specific items waived under
Section 1 above, no event shall have occurred and be continuing which constitutes an Event of Default or a Default. 
  
 3. Reference to and Effect on the Loan Documents. On and after the effective date of this Waiver, 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 Waiver, 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 Waiver. 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
amount at issue with respect to the Accounting Restatement Matter does not and will not exceed $35,000,000 in the aggregate. In the event such maximum aggregate amount exceeds $35,000,000, 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 does not and will not affect the 







 
Collateral, the Borrowing Base or the Applicable Margin in any manner and none of the financial covenants set forth in Section 7.11 of the Credit Agreement
will be breached with respect to the fiscal quarter ended September 28, 2002 or thereafter as a result of the Accounting Restatement Matter. In the event the Accounting Restatement Matter affects the Collateral, the Borrowing Base or the Applicable
Margin or in the event any of such financial covenants are 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 Waiver and has
taken or caused to be taken all necessary corporate action to authorize the execution, delivery and performance of this Waiver; 
  
 (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 Waiver; 
  
 (iii) this Waiver 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); and 
  
 (iv) the execution, delivery and performance of this Waiver
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. 
  
 (b) No Waiver.
Except as expressly set forth above, 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 Waiver 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) Costs and Expenses. The Borrowers agree to pay all reasonable costs and out-of-pocket expenses
(including, without limitation, reasonable attorneys’ fees) incurred by the Administrative Agent in connection with the preparation, execution and enforcement of this Waiver. 
  
 (d) Counterparts. This Waiver 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 Waiver by facsimile shall be effective as delivery of a manually executed counterpart of this Waiver. 
  
 (e) GOVERNING LAW. THIS WAIVER 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] 






 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly
authorized officers, as of the date first above written. 
  

	 FOOTSTAR, INC., as a Borrower

		
	 By:
	 	 /s/ Kathy Guinnessey


	 	 	 Name:
	 	 Kathy Guinnessey

	 	 	 Title:
	 	 Vice President & Treasurer

	
	 FOOTSTAR CORPORATION, as a Borrower

		
	 By:
	 	 /s/ Kathy Guinnessey


	 	 	 Name:
	 	 Kathy Guinnessey

	 	 	 Title:
	 	 Vice President & Treasurer



  
 Signature Page
to Waiver to Credit Agreement 







	 FLEET NATIONAL BANK, as Administrative

	 Agent and as Lender

		
	 By:
	 	 /S/    SUZANNE
CHOMICZEWSKI


	 	 	 Name:
	 	 SUZANNE CHOMICZEWSKI

	 	 	 Title:
	 	 VICE PRESIDENT

	
	 FLEET RETAIL FINANCE INC. as Collateral

	 Agent

		
	 By:
	 	 /S/    BETSY
RATTO


	 	 	 Name:
	 	 Betsy Ratto 

	 	 	 Title:
	 	 Managing Director



  
 Signature Page
to Waiver to Credit Agreement 







	 BACK BAY CAPITAL FUNDING LLC

		
	 By:
	 	 /s/ Kristan M. O’Connor


	 	 	 Name:
	 	 Kristan M. O’Connor

	 	 	 Title:
	 	 Director



  
 Signature Page
to Waiver to Credit Agreement 







	 CONGRESS FINANCIAL CORPORATION

		
	 By:
	 	 /s/ THOMAS GRABOSKY


	 	 	 Name:
	 	 THOMAS GRABOSKY

	 	 	 Title:
	 	 VICE PRESIDENT



  
 Signature Page
to Waiver to Credit Agreement 







	 WELLS FARGO RETAIL FINANCE, LLC

		
	 By:
	 	 /S/    ROBERT J.
CAMBORA


	 	 	 Name:
	 	 Robert J. Cambora

	 	 	 Title:
	 	 SR. Vice President



  
 Signature Page
to Waiver to Credit Agreement 







	 AMSOUTH BANK

		
	 By:
	 	 /s/ KEVIN R. ROGERS


	 	 	 Name:
	 	 KEVIN R. ROGERS

	 	 	 Title:
	 	 Attorney-In-Fact



  
 Signature Page
to Waiver to Credit Agreement 







	 NATIONAL CITY BANK

		
	 By:
	 	 /s/ Thomas J. McDonnell


	 	 	 Name:
	 	 Thomas J. McDonnell

	 	 	 Title:
	 	 Senior Vice President



  
 Signature Page
to Waiver to Credit Agreement 






 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 Waiver, confirms the continuing effect of such Guarantor’s guarantee of the Obligations after giving effect to the foregoing Waiver, and agrees to the provisions of the within and
foregoing Waiver. 
  
 Accepted and agreed to as of November 12,
2002 by the Facility Guarantors: 
  

	 FOOTSTAR CENTER, INC.

	 FOOTACTION CENTER, INC.

	 ATHLETIC CENTER, INC.

	 FA HC, INC.

	 FEET HC, INC.

	 FWS I, INC.

	 FWS II, INC.

	 STELLAR WHOLESALING, INC.

	 FEET CENTER, INC.

	 MELDISCO H.C., INC.

	 APACHE-MINNESOTA THOM MCAN, 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.
and each of the other Facility Guarantors



  

	 By:
	 	 /s/    Authorized Signatory


	 	 	 Duly Authorized Signatory as to all