EX-4 2 ex4.txt FIRST AMENDMENT TO POST-PETITION CREDIT AGREEMENT 1 EXHIBIT 4 FIRST AMENDMENT TO POST-PETITION CREDIT AGREEMENT This First Amendment to Post-Petition Credit Agreement (the "First Amendment") is made as of the 26th day of June, 2000 by and among Service Merchandise Company, Inc., a Tennessee corporation and a debtor and debtor-in-possession under Chapter 11 of the Bankruptcy Code (the "Borrower"); and The financial institutions and other entities identified on the signature pages hereto as a "Lender" (collectively, the "Lenders" and each individually, a "Lender"); and Fleet Retail Finance Inc. (in such capacity, the "Administrative Agent"), a Delaware corporation with offices at 40 Broad Street, Boston, Massachusetts, as collateral agent and administrative agent for the Lenders; and Foothill Capital Corporation, National City Commercial Finance, Inc., and Jackson National Life Insurance Company, as Co-Agents (collectively, in such capacity, the "Co-Agents"); and Heller Financial, Inc., as Documentation Agent (in such capacity the "Documentation Agent") in consideration of the mutual covenants herein contained and benefits to be derived herefrom. WITNESSETH WHEREAS, the Administrative Agent, the Co-Agents, the Documentation Agent, the Lenders, and the Borrower entered into a Post-Petition Credit Agreement dated as of April 14, 2000 (as amended and in effect, the "Credit Agreement"); and WHEREAS, the Administrative Agent, the Co-Agents, the Documentation Agent, the Lenders, and the Borrower desire to amend certain of the terms and conditions of the Credit Agreement. NOW THEREFORE, it is hereby agreed as follows: 1. Definitions: All capitalized terms used herein and not otherwise defined shall have the same meaning herein as in the Credit Agreement. 2. Amendment to Section 9. The provisions of Section 9 of the Credit Agreement are hereby amended by deleting Section 9.1(b) in its entirety and substituting the following in its stead: 2 (b) Capital Expenditures. Make aggregate Capital Expenditures in excess of (i) in the case of the 2000 and 2001 Fiscal Years, subject to the provisions of the following sentences, $180 million in the aggregate for such two Fiscal Years, and (ii) in the case of the 2002, 2003 and 2004 Fiscal Years, the sum of $50,000,000 per Fiscal Year, plus any unused permitted Capital Expenditures for the immediately preceding Fiscal Year. In Fiscal Year 2000, Capital Expenditures shall not exceed $85,000,000. Capital Expenditures for Fiscal Year 2001 shall not exceed $180,000,000 less the actual amount of Capital Expenditures made or incurred in Fiscal Year 2000. Notwithstanding the foregoing, no Capital Expenditures (except for maintenance) shall be made if, before or after giving effect to the making of such Capital Expenditure, an Event of Default then exists or thereafter would exist. 3. Conditions to Effectiveness. This First Amendment shall not be effective until each of the following conditions precedent have been fulfilled to the satisfaction of the Administrative Agent: a. This First Amendment shall have been duly executed and delivered by the Borrower, the Subsidiary Guarantors, the Administrative Agent and the Majority Lenders. The Administrative Agent shall have received a fully executed copy hereof and of each other document required hereunder. b. The Bankruptcy Court shall have entered an order approving the Borrower's and each Subsidiary Guarantor's entering into this First Amendment, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. All motions and other documents to be filed with and submitted to the Bankruptcy Court in connection with this First Amendment and the approval thereof shall be reasonably satisfactory in form and substance to the Administrative Agent. c. No Default or Event of Default shall have occurred and be continuing. d. The Borrower and each Subsidiary Guarantor shall have provided such additional instruments and documents to the Administrative Agent as the Administrative Agent and its counsel may have reasonably requested. 4. Miscellaneous. a. Except as provided herein, all terms and conditions of the Credit Agreement and the other Loan Documents remain in full force and effect. The Borrower hereby ratifies, confirms, and reaffirms all of the representations, warranties and covenants therein contained. 2 3 b. The Borrower shall pay all reasonable out-of-pocket costs and expenses incurred by the Administrative Agent in connection with this First Amendment, including, without limitation, all reasonable attorneys' fees. c. This First Amendment may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered, each shall be an original, and all of which together shall constitute one instrument. d. This First Amendment expresses the entire understanding of the parties with respect to the matters set forth herein and supersedes all prior discussions or negotiations hereon. IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed and their seals to be hereto affixed as the date first above written. SERVICE MERCHANDISE COMPANY, INC. ("BORROWER") By: /s/ R.J. Pindred ---------------------------------------- Print Name: R.J. Pindred Title: Vice President, Treasurer 3 4 FLEET RETAIL FINANCE INC. as Administrative Agent and as a Lender By: /s/ Mark J. Forti ---------------------------------------- Name: Mark J. Forti Title: Director FLEET NATIONAL BANK, as an Issuing Bank By: /s/ Timothy R. Tobin ----------------------------------------- Name: Timothy R. Tobin -------------------------------------- Title: Vice President ------------------------------------- FOOTHILL CAPITAL CORPORATION, as Co-Agent and Lender By: /s/ Michael P. Baranowski ---------------------------------------- Name: Michael P. Baranowski Title: Vice President NATIONAL CITY COMMERCIAL FINANCE INC., as Co-Agent and Lender By: /s/ Gregory A. Godec ---------------------------------------- Name: Gregory A. Godec Title: Senior Vice President JACKSON NATIONAL LIFE INSURANCE COMPANY as Co-Agent and Lender By: /s/ Michael Williams ---------------------------------------- Name: Michael Williams Title: VP 4 5 HELLER FINANCIAL INC., as Documentation Agent and Lender By: /s/ Tom Bukowski ---------------------------------------- Name: Tom Bukowski Title: Senior Vice Pres. CONGRESS FINANCIAL CORPORATION (SOUTHERN) as Lender By: /s/ Frederick Ernst ---------------------------------------- Name: Frederick Ernst Title: Vice President debis FINANCIAL SERVICES, INC. as Lender By: /s/ James M. Vandervalk ---------------------------------------- Name: James M. Vandervalk Title: President B&L Divisions GUARANTY BUSINESS CREDIT CORPORATION as Lender By: /s/ Brian Center ---------------------------------------- Name: Brian Center Title: Senior Vice President FINOVA CAPITAL CORPORATION as Lender By: /s/ Bruce Mettle ---------------------------------------- Name: Bruce Mettle Title: Vice President 5 6 ORIX BUSINESS CREDIT, INC. as Lender By: /s/ Michael J. Cox ---------------------------------------- Name: Michael J. Cox Title: Senior Vice President SOVEREIGN BANK as Lender By: /s/ Joseph Becker ---------------------------------------- Name: Joseph Becker Title: Senior Vice President THE PROVIDENT BANK as Lender By: /s/ Jose V. Garde ---------------------------------------- Name: Jose V. Garde Title: Vice President GMAC COMMERCIAL CREDIT, LLC as Lender By: /s/ Frank Imperato ---------------------------------------- Name: Frank Imperato Title: Senior VP FOOTHILL INCOME TRUST, L.P. as Lender By: /s/ R. Michael Bohannon ---------------------------------------- Name: R. Michael Bohannon Title: VP GMAC BUSINESS CREDIT, LLC as Lender By: /s/ W. Wakefield Smith ---------------------------------------- Name: W. Wakefield Smith Title: Director 6 7 IBJ WHITEHALL BUSINESS CREDIT CORPORATION as Lender By: /s/ John N. Favale ---------------------------------------- Name: John N. Favale Title: Assistant Vice President LASALLE BUSINESS CREDIT, INC. as Lender By: /s/ Corey Sclar ---------------------------------------- Name: Corey Sclar Title: Vice President 7 8 CONSENT OF SUBSIDIARY GUARANTORS The undersigned, Subsidiary Guarantors, each hereby consent to the First Amendment to Post-Petition Credit Agreement and each acknowledge that their Guarantee of the Credit Agreement Obligations, the Master Security Agreement and all other Loan Documents executed by each of them remains in full force and effect. IN WITNESS WHEREOF, the Subsidiary Guarantors have caused this Consent to First Amendment to be executed and their seals to be hereto affixed as the date first above written. B.A. PARGH, INC. H.J. WILSON CO., INC. H.J. WILSON CO. REALTY, INC. HOMEOWNERS WAREHOUSE, INC. SERVICE MERCHANDISE CO. BROAD, INC. SERVICE MERCHANDISE COMPANY OF IOWA, INC. SERVICE MERCHANDISE COMPANY OF KANSAS, INC. SERVICE MERCHANDISE CO. NO 30, INC. SERVICE MERCHANDISE CO. NO 34, INC. SERVICE MERCHANDISE CO. NO 35, INC. SERVICE MERCHANDISE CO. NO 51, INC. SERVICE MERCHANDISE CO. NO 93, INC. SERVICE MERCHANDISE CO. NO 99, INC. SERVICE MERCHANDISE FINANCIAL CO., INC. SERVICE MERCHANDISE INDIANA PARTNERS (by its Partners, Service Merchandise Co. No. 34, Inc., and Service Merchandise Co. No. 35, Inc.) SERVICE MERCHANDISE OF TENNESSEE LIMITED PARTNERSHIP (by its General Partner, Service Merchandise Company, Inc.) SERVICE MERCHANDISE OF TEXAS LIMITED PARTNERSHIP (by its General Partner, Service Merchandise Company, Inc.) SMC-HC, INC. THE TOY STORE, INC. WHOLESALE SUPPLY COMPANY, INC. A.F.S. MARKETING SERVICES, INC. SERVICE MERCHANDISE CO. OF NEW YORK, INC. SERVICE MERCHANDISE OFFICE SUPPLY, INC. SERVICE MERCHANDISE SHOWROOMS, INC. SERVICE MERCHANDISE RM, INC. 8 9 THE McNALLY SUPPLY COMPANY TRAVEL MANAGEMENT CONSULTANTS, INC. PROMOTABLES, INC. By: /s/ R.J. Pindred ----------------------------------------- Name: R.J. Pindred -------------------------------------- Title: Vice President, Treasurer ------------------------------------- 9