FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED LOAN AGREEMENT
This FIRST AMENDMENT TO THIRD AMENDED AND RESTATED LOAN AGREEMENT (this
"First Amendment") is entered into as of this 9th day of May, 1997, by and among
(a) Fine Host Corporation, a Delaware corporation (the "Borrower"), (b) Fine
Host Services Corporation, a Delaware corporation, which is a Subsidiary of the
Borrower ("Fine Host Services"), (c) Fine Host of Vermont, Inc., a Vermont
corporation, which is a Subsidiary of the Borrower ("Fine Host of Vermont"), (d)
Fanfare, Inc., a Massachusetts corporation which is a Subsidiary of the Borrower
("Fanfare"), (e) Global Fanfare, Inc., an Indiana corporation, which is a
Subsidiary of the Borrower ("Global Fanfare"), (f) Fine Host International
Corporation, a Delaware corporation, which is a Subsidiary of the Borrower
("Fine Host International"), (g) Creative Food Management, Inc., an Ohio
corporation (f/k/a VGE Acquisition Corp.), which is a Subsidiary of the Borrower
("CFM"), (h) Northwest Food Service, Inc., an Idaho corporation, which is a
Subsidiary of the Borrower ("Northwest"), (i) Tarrant County Concessions,
L.L.C., a Texas limited liability company, which is a Subsidiary of the Borrower
("Tarrant County"), (j) Sun West Services, Inc., a New Mexico corporation, which
is a Subsidiary of the Borrower ("SWSI"), (k) USTrust, a Massachusetts trust
company, for itself (hereinafter referred to as "UST" when acting for itself)
and as Agent for the Banks (as defined below)(hereinafter referred to as "Agent"
when acting as Agent for the Banks), (l) The Sumitomo Bank, Limited, a Japanese
bank ("Sumitomo"), (m) State Street Bank and Trust Company, a Massachusetts
trust company ("SSB"), (n) Bank of Boston Connecticut, a Connecticut bank
("BBC"), (o) Mellon Bank, N.A., a national banking association ("Mellon") and
(p) The Bank of New York, a New York bank ("BNY")(UST for itself, Sumitomo, SSB,
BBC, Mellon and BNY, together with their successors and assigns, are hereinafter
sometimes referred to collectively as the "Banks" and each singly as a "Bank").
As used herein, the term "Loan Agreement" means that certain Third
Amended and Restated Loan Agreement, dated as of June 25, 1996 by and among
Borrower, certain Subsidiaries of the Borrower, the Banks and the Agent,
pursuant to which, among other things, the Banks have made or agreed to make
certain Loans to the Borrower. All capitalized terms not defined herein but
defined in the Loan Agreement shall have the meanings given to such terms in the
Loan Agreement.
Preliminary Statements:
A. Since the Closing Date of the Loan Agreement, the Borrower has
acquired all of the issued and outstanding shares of capital stock of the
following corporations (said corporations, together with any and all other
corporations which are wholly-owned subsidiaries of said corporations, are
hereinafter sometimes referred to collectively as the "New Subsidiaries" and
each singly as a "New Subsidiary"): (i) Ideal Management Services, Inc., a New
York corporation; (ii) HCS Management Corp., a North Carolina corporation (now
known as PCS Holding Corp.); (iii) Republic Management Corp. of
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Massachusetts, a Massachusetts corporation; (iv) Service Dynamics Corp., a
New Jersey corporation; and (v) Versatile Holding Corporation, a Delaware
corporation; and
B. In accordance with the provisions of Section 7.4 of the Loan
Agreement, the Designated Banks pre-approved the Borrower's acquisitions of each
of the New Subsidiaries subject to the condition that, among other things, each
of the New Subsidiaries become a Guarantor; and
C. On February 11, 1997, the Borrower completed a second underwritten
public offering of certain shares of its common stock (the "Second Offering"),
and used proceeds therefrom to pay, among other things, the then entire unpaid
principal balances, together with all accrued but unpaid interest and other sums
outstanding under each of the Guidance Loans; and
D. The Borrower and each of the Subsidiaries now request that the Banks
(i) renew the Guidance Line of Credit Commitment to make Guidance Loans to the
Borrower, in the same pro rata amounts as originally available to the Borrower
as of the Closing Date of the Loan Agreement, and subject to all of the same
terms and conditions contained therein; and (ii) extend the date by which the
New Subsidiaries must become Guarantors to June 30, 1997; and
E. As a condition to (i) renewing the Guidance Line of Credit
Commitment and (ii) extending the date by which the New Subsidiaries must become
Guarantors, all as so requested by the Borrower and its Subsidiaries, the Banks
have requested that all of the parties hereto enter into this First Amendment
which, among other things, further amends the Loan Agreement;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, all of the parties hereto agree as
follows:
1. Definitions. All capitalized terms not defined herein but
defined in the Loan Agreement shall have the meanings given to such terms in
the Loan Agreement.
2. Renewal of Commitments. Subject to the terms and conditions set
forth herein, the Banks hereby renew the Guidance Line of Credit Commitment to
make Guidance Loans to the Borrower, in the same pro rata amounts as originally
available to the Borrower as of the Closing Date of the Loan Agreement, and
subject to all of the same terms and conditions contained therein and in the
other Loan Documents. Without limiting the generality of Section 7.1 hereof, the
Working Capital Commitment and the Letter of Credit Line shall continue to
remain in full force and effect, in accordance with the terms and conditions set
forth in the Loan Agreement, as amended hereby.
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3. Amendments To Loan Agreement.
3.1 Amendment to Subsection 1.1. Section 1.1 of the Loan
Agreement is amended by deleting the definition of "Guidance Line
Conversion Dates" contained therein and inserting in lieu thereof, the
following:
"'Guidance Line Conversion Dates' means and includes
any and all of the following dates: (a) December 31, 1998, (b)
April 30, 1999, and (c) any date after February 11, 1997 on
which the aggregate outstanding principal amount of all
Unconverted Guidance Loans is Twenty Million and 00/100
Dollars ($20,000,000.00) or more."
3.2 Amendment to Subsection 5.28. The first sentence of clause
(e) of Subsection 5.28 of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"The total authorized capital stock of Global Fanfare consists
of One Thousand (1,000) shares of common stock, without par
value, of which Five Hundred (500) shares are validly issued
and outstanding, all of which are owned by the Borrower."
3.3 Amendment to Subsection 6.1.4. Subsection 6.1.4 of
the Loan Agreement is hereby amended and restated in its
entirety as follows:
"6.1.4 Minimum Net Worth. Maintain at all times (to
be tested as of the last day of each fiscal quarter of the
Borrower) during the periods set forth below, for each fiscal
quarter of the Borrower, a minimum Net Worth as set forth
below.
Quarters Ending Net Worth
March 26, 1997 $ 96,700,000
June 25, 1997 $ 97,400,000
September 24, 1997 $ 99,950,000
December 31, 1997 $101,500,000
April 1, 1998 $102,400,000
July 1, 1998 $103,300,000
September 30, 1998 $106,550,000
December 30, 1998 $108,300,000
March 31, 1999 $109,400,000."
4. Acquisitions. The Banks hereby extend the date by which the New
Subsidiaries must become Guarantors to June 30, 1997; provided, however, that by
such date, the Agent must receive all of the following agreements, documents,
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opinions, all in form and substance satisfactory to the Agent and duly executed
and delivered by all of the parties thereto: (a) an Amendment to Loan Agreement
to add each New Subsidiary as a party thereto; (b) an Unlimited Guaranty from
each New Subsidiary, in favor of the Banks, pursuant to which each New
Subsidiary guarantees all of the Liabilities; (c) a Security Agreement between
each New Subsidiary and the Agent, pursuant to which each New Subsidiary grants
to the Agent for the benefit of the Banks a first priority security interest
(subject to Liens permitted under subsection 7.1 of the Loan Agreement) in all
of the assets of such New Subsidiary, together with any and all UCC financing
statements which the Agent deems necessary and appropriate in order to perfect
its security interests in such assets; (c) an Assignment of Receivables and
Proceeds from each New Subsidiary in favor of the Agent, pursuant to which each
New Subsidiary assigns to the Agent for the benefit of the Banks certain
receivables and proceeds of such New Subsidiary as additional security for all
Liabilities; (d) a Pledge Agreement between the Borrower and the Agent, pursuant
to which, among other things, the Borrower grants, pledges and assigns to the
Agent for the benefit of the Banks a first priority security interest in all of
the issued and outstanding shares of capital stock of each New Subsidiary; (e)
Subordination Agreements from such creditors of each New Subsidiary (including
without limitation, the Borrower), as the Agent deems necessary or appropriate;
(f) a certificate of the Secretary of each of the Borrower, its Subsidiaries and
each New Subsidiary with respect to resolutions of the Board of Directors of the
Borrower, its Subsidiaries and each New Subsidiary authorizing the execution and
delivery of the foregoing documents and identifying the officer(s) authorized to
execute, deliver and take all other actions required under such documents, and
providing specimen signatures of such officers; (g) certificates of
incorporation and by-laws for each New Subsidiary and all amendments and
supplements thereto; (h) certificates of legal existence and corporate good
standing for the Borrower, its Subsidiaries and each New Subsidiary; (i)
certificates of foreign qualification for each New Subsidiary; (j) opinions
addressed to the Banks and the Agent from each of Willkie Farr & Gallagher,
counsel to the Borrower, and Ellen Keats, General Counsel for the Borrower; (k)
such other documents, instruments, opinions and certificates and completion of
such other matters, as the Agent may reasonably deem necessary or appropriate.
In addition, the Borrower shall have paid all fees, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses)
incurred or paid by the Agent and the Banks in connection with the preparation,
negotiation and interpretation of the documents referred to in this Section 4.
5. Representations and Warranties. The Borrower and each of the
Subsidiaries that is a party hereto acknowledge and confirm that all of the
representations and warranties of the Borrower and the Subsidiaries in all of
the Loan Documents are and remain true, correct and complete as of the date
hereof as if made as of the date hereof (except as the same may expressly relate
to an earlier date, and except as the same may relate or apply to any of the New
Subsidiaries). The Borrower and each of the Subsidiaries that is a party hereto
represent and warrant to the Banks that if, effective as of the date hereof, the
New Subsidiaries were to be parties to the Loan Agreement and the other Loan
Documents to which all of the other Subsidiaries are parties, there would be no
breach by the New Subsidiaries of any of their representations and warranties
contained therein which would
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have a material and adverse effect on the Borrower and the Subsidiaries
(including the New Subsidiaries), when taken as a whole, and there would be no
events, circumstances or conditions (financial or otherwise) relating to any of
the New Subsidiaries, which would materially and adversely impair the ability of
each of the New Subsidiaries to perform or observe all of their respective
obligations thereunder, in accordance with the terms thereof.
6. No Events of Default. The Borrower and each of the Subsidiaries that
is a party hereto represent and warrant to the Banks that no Event of Default or
default has occurred and is now continuing under any of the Loan Documents, and
there does not now exist any circumstance or set of facts, which with the
passage of time or the giving of notice or both would constitute or result in an
Event of Default or a default under any of the Loan Documents.
7. Conditions Precedent. The obligations of the Banks and the Agent
hereunder are subject to the satisfaction of each of the following conditions
precedent which shall be in form, scope and substance satisfactory to the Agent
and its counsel:
(a) First Amendment. The Agent shall have received this
First Amendment, as executed by duly authorized officers of the
Borrower and each of its Subsidiaries which is a party hereto;
(b) Reaffirmations of Limited Guaranties. The Agent
shall have received Reaffirmations of Limited Guaranties,
executed by duly authorized officers or agents of the Limited
Guarantors in favor of the Banks;
(c) Evidence of Authority of the Borrower and Subsidiaries.
The Agent shall have received certified copies of all corporate action
(in form and substance reasonably satisfactory to the Agent) taken by
the Borrower and the Subsidiaries to authorize the execution, delivery
and performance of this First Amendment;
(d) Opinion Letters. The Agent shall have received
opinion letters from Willkie Farr & Gallagher, counsel to the
Borrower, and Ellen Keats, General Counsel for the Borrower; and
(e) Other. The Borrower and the Subsidiaries shall have
delivered to the Agent such other documents as the Agent or its
counsel may reasonably require.
8. Ratification of Loan Documents.
8.1 Ratification by Borrower. Subject to the amendments expressly set forth
herein, the Borrower hereby ratifies and reaffirms all of the terms and
provisions of the Loan Documents to which it is a party or by which it or its
property is bound, and hereby expressly acknowledges and confirms that the terms
and provisions of each thereof, as amended hereby, shall and do remain in full
force and effect. Without
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limiting the generality of the foregoing, the Borrower hereby
acknowledges and agrees that each of the Guidance Notes has, at all
times, been and continues to remain in full force and effect,
notwithstanding that on or about February 11, 1997, the Borrower paid
the then entire unpaid principal balance, together with all accrued but
unpaid interest and other sums outstanding under each of the Guidance
Loans from the proceeds from the Second Offering.
8.2 Ratification by Subsidiaries; Reaffirmation of Unlimited
Guaranties. Subject to the amendments expressly set forth herein, each
of the Subsidiaries that is a party hereto hereby ratifies and
reaffirms all of the terms and provisions of the Loan Documents to
which it is a party or by which it or its property is bound, and hereby
expressly acknowledges and confirms that the terms and provisions of
each thereof, as amended hereby, shall and do remain in full force and
effect. Without limiting the generality of the foregoing, each such
Subsidiary hereby expressly (a) ratifies and reaffirms all of the terms
and provisions of its Unlimited Guaranties (as defined and identified
in Section 3.1(c) of the Loan Agreement), (b) acknowledges that the
term "Liabilities," as defined in its Unlimited Guaranties, includes
the Banks' Commitments to make Loans to the Borrower, in the same pro
rata amounts as originally available as of the Closing Date of the Loan
Agreement, all as provided in this First Amendment, and (c)
acknowledges and confirms that the terms and provisions of its
Unlimited Guaranties shall and do remain in full force and effect.
9. Miscellaneous
9.1 No Other Amendments; No Waiver. Except for the amendments
expressly set forth hereinabove, nothing contained herein shall be
construed to modify, amend or otherwise alter any of the terms or
provisions of any of the Loan Documents; nothing contained herein shall
constitute a waiver of or bar to any rights or remedies available to
the Agent or any of the Banks, or a waiver of any Event of Default
under the Loan Documents on any occasion, other than as expressly set
forth hereinabove; and nothing contained herein shall constitute an
agreement by any of the Banks or obligate any of the Banks or the Agent
to take or refrain from taking any action.
9.2 Execution; Counterparts. This First Amendment may be
executed in any number of counterparts, each of which shall be deemed
to be an original as against any party whose signature appears hereon,
and all of which shall together constitute one and the same instrument.
This First Amendment shall become binding when one or more counterparts
hereof, individually or taken together, shall bear the signatures of
all of the parties reflected hereon as the signatories.
9.3 Successors and Assigns. This First Amendment shall be
binding upon and inure to the benefit of the parties hereto, and their
respective representatives, successors and assigns.
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9.4 Governing Law. This First Amendment and all questions
relating to its validity, interpretation, performance and enforcement
shall be governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts, notwithstanding any conflict-of-law
provisions to the contrary.
IN WITNESS WHEREOF, this First Amendment has been duly executed as an
instrument under seal by the duly authorized representative of each party
hereto, as of the day and year first above written.
USTRUST AS LENDER AND AGENT THE SUMITOMO BANK, LIMITED
By: /s/ Michael D. O'Neill By: /s/ William N. Paty
Title: Senior Vice President Title: Vice President & Manager
By: /s/ James Drum
Title:Vice President, New York Office
STATE STREET BANK AND TRUST BANK OF BOSTON CONNECTICUT
COMPANY
By: /s/ William Zola By: /s/ W. Lincoln Schoff, Jr.
Title: Vice President Title: Director
MELLON BANK, N.A. THE BANK OF NEW YORK
By: /s/ Frank P. Mohazzi By: /s/ Joseph J. Markey
Title: Vice President Title: Vice President
FINE HOST CORPORATION FINE HOST SERVICES CORPORATION
By: /s/ Nelson A. Barber By: /s/ Nelson A. Barber
Title: Treasurer Title: Senior Vice President
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FINE HOST OF VERMONT, INC. FANFARE, INC.
By: /s/ Nelson A. Barber By: /s/ Nelson A. Barber
Title: Senior Vice President Title: Treasurer
GLOBAL FANFARE, INC. FINE HOST INTERNATIONAL
CORPORATION
By: /s/ Nelson A. Barber By: /s/ Nelson A. Barber
Title: Treasurer Title: Treasurer
CREATIVE FOOD MANAGEMENT, NORTHWEST FOOD SERVICE, INC.
INC.
By: /s/ Nelson A. Barber By: /s/ Nelson A. Barber
Title: Senior Vice President Title: Treasurer
TARRANT COUNTY CONCESSIONS, L.L.C. SUN WEST SERVICES, INC.
By: /s/ Todd M. Avila By: /s/ Nelson A. Barber
Title: Treasurer Title: Treasurer
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REAFFIRMATION AND CONFIRMATION OF LIMITED GUARANTY
OF
FINE HOST/R&N/A CUP ABOVE JOINT VENTURE
The undersigned Limited Guarantor hereby (a) consents to the terms and
provisions of the foregoing First Amendment, (b) ratifies and reaffirms as of
the date hereof all of the terms and provisions of its Limited Guaranty (as
defined in the Loan Agreement), (c) acknowledges that the term "Liabilities" (as
defined in its Limited Guaranty), includes the Banks' Commitments to make Loans
to the Borrower, in the same pro rata amounts as originally available as of the
Closing Date of the Loan Agreement, all as provided in the foregoing First
Amendment, and (d) acknowledges and confirms that the terms and provisions of
its Limited Guaranty shall and do remain in full force and effect.
Date: As of May 9, 1997 FINE HOST/R&N/A CUP ABOVE JOINT
VENTURE
By: Fine Host Corporation, as Joint Venturer
of aforesaid Joint Venture
By: /s/ Nelson A. Barber
Name: Nelson A. Barber
Title: Senior Vice President
Its duly authorized officer
By: Ronald O. Rogers and Tyrone Nabbie
(d/b/a R&N Management Services), as
Joint Venturers of aforesaid Joint Venture
By: /s/ Tyrone W. Nabbie
Tyrone W. Nabbie
By: /s/ Ronald O. Rogers
Ronald O. Rogers
By: Ellen Korbin (d/b/a A Cup Above), as
Joint Venturer of aforesaid Joint Venture
By: /s/ Ellen L. Korbin
Ellen L. Korbin
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REAFFIRMATION AND CONFIRMATION OF LIMITED GUARANTY
OF
FINE HOST/S. BROOKS & ASSOCIATES JOINT VENTURE
The undersigned Limited Guarantor hereby (a) consents to the terms and
provisions of the foregoing First Amendment, (b) ratifies and reaffirms as of
the date hereof all of the terms and provisions of its Limited Guaranty (as
defined in the Loan Agreement), (c) acknowledges that the term "Liabilities" (as
defined in its Limited Guaranty), includes the Banks' Commitments to continue to
make Loans to the Borrower, in the same pro rata amounts as originally available
as of the Closing Date of the Loan Agreement, all as provided in the foregoing
First Amendment, and (d) acknowledges and confirms that the terms and provisions
of its Limited Guaranty shall and do remain in full force and effect.
Date: As of May 9, 1997
FINE HOST/S. BROOKS & ASSOCIATES
JOINT VENTURE
By: Fine Host Corporation, as Joint Venturer of
aforesaid Joint Venture
By: /s/ Nelson A. Barber
Name: Nelson A. Barber
Title: Senior Vice President
Its duly authorized officer
By: S. Brooks & Associates, Inc., as Joint Venturer
of aforesaid Joint Venture
By: /s/ Margaret Brooks
Name: Margaret Brooks
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