OMNIBUS AMENDMENT, DIRECTION AND CONSENT NO.4
OMNIBUS AMENDMENT, DIRECTION AND CONSENT NO. 4, dated April 4, 1997, among
SMART & FINAL INC., a Delaware corporation (the "Lessee"), SMART & FINAL STORES
CORPORATION, a California corporation, and PORT STOCKTON FOOD DISTRIBUTORS,
INC., a California corporation (each a "Permitted Sublessee" and together, the
"Permitted Sublessees"), FLEET NATIONAL BANK, a national banking association,
not in its individual capacity but solely as the Owner Trustee under the Trust
Agreement (the "Lessor"), FIRST HAWAIIAN BANK, as holder of Series A Notes and
as holder of Series B Notes ("First Hawaiian"), CREDIT LYONNAIS LOS ANGELES
BRANCH, as holder of Series A Notes and Series B Notes ("CLLA"), BANK LEUMI LE-
ISRAEL B.M., as holder of Series A Notes and Series B Notes ("Bank Leumi")
and, together with First Hawaiian and CLLA, the "Lenders"), CREDIT LYONNAIS
LEASING CORP. as equity participant (the "Equity Participant"), and CREDIT
LYONNAIS NEW YORK BRANCH, a branch duly licensed under the laws of New York of
a banking corporation organized and existing under the laws of the Republic of
France, as agent for the Lenders (the "Agent").
RECITALS
WHEREAS, the Equity Participant and Shawmut Bank Connecticut, National
Association entered into a Trust Agreement, dated as of December 15, 1994;
WHEREAS, the Lessor and the Lessee entered into a Lease Agreement (the
"Lease Agreement"), dated as of December 15, 1994;
WHEREAS, the Lessor and the Lessee entered into an Agency Agreement
(the "Agency Agreement"), dated as of December 15, 1994;
WHEREAS, the Lessor, Credit Lyonnais Cayman Islands Branch and the
Agent entered into a Loan Agreement (the "Loan Agreement"), dated as of December
15, 1994;
WHEREAS, the Lessee, the Permitted Sublessees, the Lessor, the
Lenders, Credit Lyonnais Cayman Islands Branch, the Agent and the Equity
Participant entered into a Participation Agreement (the "Participation
Agreement"), dated as of December 15, 1994;
WHEREAS, the Transaction Documents were amended pursuant to (i) an
Omnibus Amendment, Direction and Consent among the Lessee, the Permitted
Sublessees, the Lessor, the Lenders, Credit Lyonnais Cayman Islands Branch, the
Equity Participant and the Agent, (ii) an Omnibus Amendment, Direction and
Consent No. 2 among the Lessee, the Permitted Sublessees, the Lessor, Credit
Lyonnais Cayman Islands Branch, the Lenders, the Equity Participant and the
Agent, and (iii) an Omnibus Amendment, Direction and Consent No. 3 among the
Lessee, the Permitted Sublessees, the Lessor, Credit Lyonnais Cayman Islands
Branch, the Lenders, the Equity Participant and the Agent;
WHEREAS, the parties hereto desire to further amend the Transaction
Documents as set forth herein;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto agree as follows:
Section 1. Capitalized terms used but not defined herein shall have
the meaning assigned thereto in the Participation Agreement.
Section 2. In accordance with Section 6.02 of the Trust Agreement,
the Equity Participant hereby instructs Fleet National Bank, formerly known as
Shawmut Bank Connecticut, National Association, to execute and delivery this
Omnibus Amendment, Direction and Consent No. 4 as Lessor.
Section 3. In accordance with the terms and conditions of the Loan
Agreement and the Participation Agreement, the Lenders and the Agent hereby
consent to the amendments set forth herein to the Transaction Documents.
Section 4. Section 1.06 of the Participation Agreement is hereby
amended by deleting such Section in its entirety and inserting the following:
SECTION 1.06. Fees Payable by Lessee. The Lessee shall pay to the
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Agent the Administration Fee on the initial Closing Date and each December
1 thereafter occurring during the Lease Term. The Lessee shall pay to the
Lenders and the Equity Participant a commitment fee for the period
beginning on the initial Closing Date and ending on May 31, 1997, equal to
0.20% per annum of the excess from time to time of $30,000,000 over the
Outstanding Property Cost. Such commitment fee shall be paid to the Agent,
quarterly in arrears on each Payment Date, for distribution to the parties
entitled thereto.
Section 5. Section 1.07 of the Participation Agreement is hereby
amended by deleting such Section in its entirety and inserting the following:
SECTION 1.07. Closing. Each closing (a "Closing") of (a) the
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acquisition of one or more Leased Premises by the Lessor, (b) the payment
of an Advance by the Lessor to the Lessee and, (c) in the case of the
initial closing, the execution and delivery of the Transaction Documents
and the payment to the Agent of the Arrangement Fee, shall take place at
the offices of Orrick, Herrington & Sutcliffe, 666 Fifth Avenue, New York,
New York at 12:00 noon, New York City time, on such date (the "Closing
Date") or in the case of the payment of an Advance (the "Advance Date") on
or before May 31, 1997, or, in the case of the initial Closing Date,
December 31, 1994, as the Lessee shall specify by not less than three
Business Days' written notice (the "Closing Notice") delivered to the
Lessor, each Lender, the Equity Participant and the Agent. The Closing
Notice shall set forth the aggregate Purchase Price of the Leased Premises
and the Lessor's Share of Improvement Cost funded with the funds advanced
to the Lessee and shall have attached thereto the fully completed form of
Lease Supplement which the Lessee contemplates will be executed and
delivered on the Closing Date or Advance Date, as the case may be.
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Section 6. The definition of the term "Completion Date" in the Agency
Agreement is hereby amended by deleting such term in its entirety and inserting
the following:
"Completion Date" shall mean, for the Improvements for any Leased
Premises, May 31, 1997, as the same may be extended by the Agent pursuant
to Section 4.10(a) of the Agency Agreement.
Section 7. Section 2(b) of the Lease Agreement is hereby amended by
deleting such clause in its entirety and inserting the following:
(b) The lease of each of the Leased Premises to the Lessee under this
Lease Agreement shall be evidenced by the execution and delivery to the Lessor
and the Lessee of a Lease Supplement. In addition, each Advance made by the
Lessor to the Lessee under the Agency Agreement shall be evidenced by a Lease
Supplement. With respect to each of the Leased Premises in the 1995 Tranche,
there shall be no more than 12 Closing Dates and Advance Dates, and no Closing
Date shall occur after December 31, 1995; provided that with respect to Leased
Premises the Purchase Price of which has been paid by the Lessor prior to
December 31, 1995, Advance Dates may occur after December 31, 1995 but may occur
no later than March 31, 1996; provided, further that with respect to the Leased
Premises located at 5925 E. Carson Street, Lakewood, California, Advance Dates
may occur after March 31, 1996 but may occur no later than May 20, 1996. With
respect to each of the Leased Premises in the 1996 Tranche, Advances Dates may
occur no later than May 31, 1997.
Section 8. This Omnibus Amendment, Direction and Consent No. 4 shall
be governed by and construed in accordance with the laws of the State of New
York without regard to principles of conflicts of law. All agreements herein of
the parties hereto shall bind any successors or assigns, whether so expressed or
not. In case any provision herein shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby. This Omnibus Amendment, Direction
and Consent No. 4 may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the Lessee, the Permitted Sublessees, the Lessor,
the Lenders, the Equity Participant and the Agent have caused this Omnibus
Amendment, Direction and Consent No. 4 to be duly executed as of the day and
year first above written.
SMART & FINAL INC.,
as Lessee
By: /s/ Donald G. Alvarado
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Name: Donald G. Alvarado
Title:SR. V.P. AND SECRETARY
SMART & FINAL STORES CORPORATION,
as Permitted Sublessee
By: /s/ Donald G. Alvarado
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Name: Donald G. Alvarado
Title:SR. V.P. AND SECRETARY
PORT STOCKTON FOOD DISTRIBUTORS, INC.,
as Permitted Sublessee
By: /s/ Donald G. Alvarado
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Name: Donald G. Alvarado
Title:SECRETARY
FLEET NATIONAL BANK OF CONNECTICUT, not in its
individual capacity but solely as the Owner
Trustee under the Trust Agreement, as Lessor
By: /s/ Elizabeth C. Hammer
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Name: Elizabeth C. Hammer
Title: Vice President
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FIRST HAWAIIAN BANK, as Series A Lender
and Series B Lender
By: /s/ Robert M. Wheeler, III
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Name: Robert M. Wheeler, III
Title: Vice President
CREDIT LYONNAIS LOS ANGELES BRANCH,
as Series A Lender and Series B Lender
By: /s/ Dianne Scott
---------------------------------
Name: Dianne Scott
Title: Vice President and Branch Manager
BANK LEUMI LE-ISRAEL B.M., as Series A
Lender and Series B Lender
By: /s/ Jacques Delvoy
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Name: Jacques Delvoy
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as Equity Participant and Agent
By: /s/ David C. Fink
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Name: David C. Fink
Title: Vice President
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