Exhibit 4.4
AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of
January 1, 1998 by and among Fine Host Corporation, a corporation duly organized
and existing under the laws of the State of Delaware and having its principal
office at 3 Greenwich Office Park, Greenwich, CT 06831 (the "Company"), The Bank
of New York, a banking corporation duly organized and existing under the laws of
the State of New York and having its principal corporate trust office at 101
Barclay Street, New York, NY 10286 (the "Resigning Trustee") and Marine Midland
Bank, a banking corporation duly organized and existing under the laws of the
State of New York and having its principal corporate trust office at 140
Broadway, New York, NY 10005-1180 (the "Successor Trustee").
RECITALS:
WHEREAS, there was originally authorized and issued $175,000,000
aggregate principal amount of the Company's 5% Convertible Subordinated Notes
due 2004 under an Indenture dated as of October 27, 1997 by and between the
Company and the Resigning Trustee (said Notes are hereinafter referred to as
"Securities" and said Indenture is hereinafter referred to as the "Indenture");
WHEREAS, Section 7.8 of the Indenture provides that the Trustee may at
any time resign by giving written notice of such resignation to the Company,
effective upon the acceptance by a successor Trustee of its appointment as a
successor Trustee;
WHEREAS, Section 7.8 of the Indenture provides that, if the Trustee
shall resign, the Company shall promptly appoint a successor Trustee;
WHEREAS, Section 7.8 of the Indenture provides that any successor
Trustee appointed in accord ance with the Indenture shall execute, acknowledge
and deliver to the Company and to its predecessor Trustee an instrument
accepting such appointment under the Indenture, and thereupon the resignation of
the predecessor Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all
rights, powers, duties and obligations of the predecessor Trustee;
WHEREAS, the Resigning Trustee was appointed Registrar and Paying Agent
by the Company;
WHEREAS, the Company desires to appoint Successor Trustee as Trustee,
Registrar and Paying Agent to succeed Resigning Trustee under the Indenture; and
WHEREAS, Successor Trustee is willing to accept such appointment as
successor Trustee, Registrar and Paying Agent under the Indenture;
NOW, THEREFORE, the Company, Resigning Trustee and Successor Trustee,
for and in consideration of the premises and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby consent and agree as follows:
ARTICLE ONE
THE RESIGNING TRUSTEE
SECTION I. Pursuant to Section 7.8 of the Indenture, Resigning Trustee
hereby notifies the Company that Resigning Trustee is hereby resigning as
Trustee, Registrar and Paying Agent under the Indenture.
SECTION II. Resigning Trustee hereby represents and warrants to
Successor Trustee that:
(a) No covenant or condition contained in the Indenture has been
waived by Resigning Trustee or, to
the best of the knowledge of the Responsible Officers of
Resigning Trustee's Corporate Trust Group, by the Holders of
the percentage in aggregate principal amount of the Securities
required by the Indenture to effect any such waiver.
(b) There is no action, suit or proceeding pending or, to the best
of the knowledge of the Responsible Officers assigned to
Resigning Trustee's Corporate Trust Group, threatened against
Resigning Trustee before any court or any governmental
authority arising out of any action or omission by Resigning
Trustee as Trustee under the Indenture.
(c) As of the effective date of this Agreement, Resigning Trustee
will hold no property under the Indenture.
(d) Pursuant to Section 2.2 of the Indenture, Resigning Trustee
duly authenticated and delivered, on October 27, 1997,
$175,000,000 aggregate principal amount of Securities, all of
which are outstanding as of the effective date hereof.
(e) Each person who so authenticated the Securities was duly
elected, qualified and acting as an officer of Resigning
Trustee and empowered to authenticate the Securities at the
respective times of such authentication and the signature of
such person or persons appearing on such Securities is each
such person's genuine signature.
(f) This Agreement has been duly authorized, executed and
delivered on behalf of Resigning Trustee and constitutes its
legal, valid and binding obligation.
(g) To the best of the knowledge of the responsible Officers of
the Resigning Trustee's Corporate Trust Group, no event has
occurred and is continuing which is, or after notice or lapse
of time would become, an Event of Default under Section 6.1 of
the Indenture.
SECTION III. Resigning Trustee hereby assigns, transfers, delivers and
confirms to Successor Trustee all right, title and interest of Resigning Trustee
in and to the trust under the Indenture and all the rights, powers and trusts of
the Trustee under the Indenture. Resigning Trustee shall execute and deliver
such further instruments and shall do such other things as Successor Trustee may
reasonably require so as to more fully and certainly vest and confirm in
Successor Trustee all the rights, trusts and powers hereby assigned,
transferred, delivered and confirmed to Successor Trustee as Trustee, Paying
Agent and Registrar.
SECTION IV. Resigning Trustee shall deliver to Successor Trustee, as of
or immediately after the effective date hereof, all of the documents listed on
Exhibit A hereto.
ARTICLE TWO
THE COMPANY
SECTION V. The Company hereby accepts the resignation of Resigning
Trustee as Trustee, Registrar and Paying Agent under the Indenture.
SECTION VI. [Reserved]
SECTION VII. The Company hereby appoints Successor Trustee as Trustee,
Registrar and Paying Agent under the Indenture to succeed to, and hereby vests
Successor Trustee with, all the rights, powers, duties and obligations of
Resigning Trustee under the Indenture with like effect as if originally named as
Trustee in the Indenture.
SECTION VIII. Promptly after the effective date of this Agreement, the
Successor Trustee shall cause a notice, substantially in the form of Exhibit B
annexed hereto, to be sent to each Holder of the Securities in accordance with
the provisions of Section 7.8 of the Indenture.
SECTION IX. The Company hereby represents and warrants to Resigning
Trustee and Successor Trustee that:
(a) The Company is a corporation duly and validly organized and
existing pursuant to the laws of the State of Delaware.
(b) This Agreement has been duly authorized, executed and
delivered on behalf of Company and constitutes its legal,
valid and binding obligation.
(c) All conditions precedent relating to the appointment of Marine
Midland Bank as successor Trustee under the Indenture have
been complied with by the Company.
ARTICLE THREE
THE SUCCESSOR TRUSTEE
SECTION X. Successor Trustee hereby represents and warrants to
Resigning Trustee and to the Company that:
(a) Successor Trustee is not disqualified under the provisions of
Section 7.10 and is eligible under the provisions of Section
7.10 of the Indenture to act as Trustee under the Indenture.
(b) This Agreement has been duly authorized,executed and delivered
on behalf of Successor Trustee and constitutes its legal,valid
and binding obligation.
SECTION XI. Successor Trustee hereby accepts its appointment as
successor Trustee, Registrar and Paying Agent under the Indenture and accepts
the rights, powers, duties and obligations of Resigning Trustee as Trustee under
the Indenture, upon the terms and conditions set forth therein, with like effect
as if originally named as Trustee under the Indenture.
SECTION XII. References in the Indenture to "Corporate Trust Office" or
other similar terms shall be deemed to refer to the Corporate Trust Office of
Successor Trustee at 140 Broadway, New York, NY 10005-1180 or any other office
of Successor Trustee at which, at any particular time, its corporate trust
business shall be administered.
ARTICLE FOUR
MISCELLANEOUS
SECTION XIII. Except as otherwise expressly provided herein or unless
the context otherwise requires, all terms used herein which are defined in the
Indenture shall have the meaning assigned to them in the Indenture.
SECTION XIV. This Agreement and the resignation, appointment and
acceptance effected hereby shall be effective as of the opening of business on
January , 1998.
SECTION XV. Resigning Trustee hereby acknowledges payment or provision
for payment in full by the Company of compensation for all services rendered by
Resigning Trustee under Section 7.7 of the Indenture and reimbursement in full
by the Company of the expenses, disbursements and advances incurred or made by
Resigning Trustee in accordance with the provisions of the Indenture. Resigning
Trustee acknowledges that it relinquishes any lien it may have upon all property
or funds held or collected by it to secure any amounts due it pursuant to the
provisions of Section 7.7 of the Indenture. The Company acknowledges its
obligation set forth in Section 7.7 of the Indenture to indemnify Resigning
Trustee for, and to hold Resigning Trustee harmless against, any loss, liability
and expense incurred without negligence or bad faith on the part of the
Resigning Trustee and arising out of or in connection with the acceptance or
administration of the trust evidenced by the Indenture (which obligation shall
survive the execution hereof).
SECTION XVI. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION XVII. This Agreement may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
SECTION XVIII. The Company, Resigning Trustee and Successor Trustee
hereby acknowledge receipt of an executed counterpart of this Agreement and the
effectiveness thereof.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement of
Resignation, Appointment and Acceptance to be duly executed and as of the date
first written above.
Fine Host Corporation
By:________________________
Name:
Title:
The Bank of New York
Resigning Trustee
By:___________________________
Name:
Title:
Marine Midland Bank
Successor Trustee
By:________________________
Name:
Title:
EXHIBIT A
Documents to be delivered to Successor Trustee
1. Executed copy of Indenture dated as of October 27, 1997
2. File of Closing Documents
3. Copies of the most recent of each of the SEC reports delivered by the
Company pursuant to Section 4.7 of the Indenture, if any.
4. A copy of the most recent Compliance Certificate delivered pursuant to
Section 4.6 of the Indenture, if any.
5. Copies of any official notices sent by the Trustee to all the Holders
of the Notes pursuant to the terms of the Indenture during the past twelve
months and a copy of the most recent Trustee's Annual Report to Holders, if any.
EXHIBIT B
[MMB LETTERHEAD]
NOTICE
To the Holders of
Fine Host Corporation
5% Convertible Subordinated Notes due 2004
NOTICE IS HEREBY GIVEN, pursuant to Section 7.8 of the Indenture dated as of
October 27, 1997 by and between Fine Host Corporation (the "Company") and The
Bank of New York, as Trustee, that The Bank of New York has resigned as Trustee
under the Indenture.
Pursuant to Section 7.8 of the Indenture, Marine Midland Bank, a corporation
duly organized and existing under the laws of the State of New York, has
accepted appointment as Trustee under the Indenture. The address of the
Corporate Trust Office of Marine Midland Bank is 140 Broadway, New York, NY
10005-1180.
The Bank of New York resignation as Trustee and Marine Midland Bank appointment
as successor Trustee were effective as of the opening of business on January ,
1998.
Dated: New York, New York
January ___, 1998
Very truly yours,
Marine Midland Bank
By:______________________
Name:
Title: