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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:
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(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.
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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
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Print Name: R.J. Pindred
Title: Vice President, Treasurer
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FLEET RETAIL FINANCE INC.
as Administrative Agent and as a Lender
By: /s/ Mark J. Forti
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Name: Mark J. Forti
Title: Director
FLEET NATIONAL BANK,
as an Issuing Bank
By: /s/ Timothy R. Tobin
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Name: Timothy R. Tobin
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Title: Vice President
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FOOTHILL CAPITAL CORPORATION,
as Co-Agent and Lender
By: /s/ Michael P. Baranowski
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Name: Michael P. Baranowski
Title: Vice President
NATIONAL CITY COMMERCIAL FINANCE INC.,
as Co-Agent and Lender
By: /s/ Gregory A. Godec
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Name: Gregory A. Godec
Title: Senior Vice President
JACKSON NATIONAL LIFE INSURANCE COMPANY
as Co-Agent and Lender
By: /s/ Michael Williams
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Name: Michael Williams
Title: VP
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HELLER FINANCIAL INC.,
as Documentation Agent and Lender
By: /s/ Tom Bukowski
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Name: Tom Bukowski
Title: Senior Vice Pres.
CONGRESS FINANCIAL CORPORATION (SOUTHERN)
as Lender
By: /s/ Frederick Ernst
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Name: Frederick Ernst
Title: Vice President
debis FINANCIAL SERVICES, INC.
as Lender
By: /s/ James M. Vandervalk
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Name: James M. Vandervalk
Title: President B&L Divisions
GUARANTY BUSINESS CREDIT CORPORATION
as Lender
By: /s/ Brian Center
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Name: Brian Center
Title: Senior Vice President
FINOVA CAPITAL CORPORATION
as Lender
By: /s/ Bruce Mettle
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Name: Bruce Mettle
Title: Vice President
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ORIX BUSINESS CREDIT, INC.
as Lender
By: /s/ Michael J. Cox
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Name: Michael J. Cox
Title: Senior Vice President
SOVEREIGN BANK
as Lender
By: /s/ Joseph Becker
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Name: Joseph Becker
Title: Senior Vice President
THE PROVIDENT BANK
as Lender
By: /s/ Jose V. Garde
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Name: Jose V. Garde
Title: Vice President
GMAC COMMERCIAL CREDIT, LLC
as Lender
By: /s/ Frank Imperato
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Name: Frank Imperato
Title: Senior VP
FOOTHILL INCOME TRUST, L.P.
as Lender
By: /s/ R. Michael Bohannon
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Name: R. Michael Bohannon
Title: VP
GMAC BUSINESS CREDIT, LLC
as Lender
By: /s/ W. Wakefield Smith
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Name: W. Wakefield Smith
Title: Director
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IBJ WHITEHALL BUSINESS CREDIT CORPORATION
as Lender
By: /s/ John N. Favale
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Name: John N. Favale
Title: Assistant Vice President
LASALLE BUSINESS CREDIT, INC.
as Lender
By: /s/ Corey Sclar
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Name: Corey Sclar
Title: Vice President
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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.
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THE McNALLY SUPPLY COMPANY
TRAVEL MANAGEMENT CONSULTANTS, INC.
PROMOTABLES, INC.
By: /s/ R.J. Pindred
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Name: R.J. Pindred
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Title: Vice President, Treasurer
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