Exhibit 10.12(d)
EXECUTION COPY
THIRD AMENDMENT TO
FOURTH AMENDED AND RESTATED LOAN AGREEMENT
This THIRD AMENDMENT TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
(this "Third Amendment") is executed and effective as of March 12, 1998, by and
among (a) FINE HOST CORPORATION, a Delaware corporation, for itself and as agent
for all of the Borrowers (as defined below) (hereinafter referred to as "Fine
Host" when acting for itself and as the "Borrower Agent" when acting as agent
for all of the Borrowers (including Fine Host)), (b) all of the Subsidiaries of
Fine Host (said Subsidiaries, together with Fine Host and any and all other
Subsidiaries which may hereafter become parties to the Loan Agreement (as
defined below) are hereinafter sometimes referred to collectively as the
"Borrowers" and each singly as a "Borrower"), (c) VARIOUS BANKS AND OTHER
FINANCIAL INSTITUTIONS which are parties to the Loan Agreement (hereinafter
referred to collectively as the "Banks" and each singly as a "Bank"), (d)
BANKBOSTON, N.A., a national banking association ("BankBoston"), as
administrative agent for the Banks (in such capacity, the "Administrative
Agent"), and (e) USTRUST, a Massachusetts trust company ("USTrust"), as
documentation agent for the Banks (in such capacity, the "Documentation Agent")
(the Administrative Agent and the Documentation Agent are hereinafter sometimes
referred to collectively as the "Agents").
All capitalized terms not defined herein but defined in that certain
Fourth Amended and Restated Loan Agreement, dated as of July 30, 1997, by and
among Fine Host, all of the Subsidiaries, the Banks, and the Agents, as amended
or otherwise affected by (a) a certain First Amendment to Loan Agreement, dated
as of August 14, 1997, by and among Fine Host, certain of the Subsidiaries, the
Banks and the Agents, (b) a certain Second Amendment to Loan Agreement, executed
and effective on October 21, 1997, by and among Fine Host, certain of the
Subsidiaries, the Banks and the Agents and (c) a certain Joinder and Assumption
Agreement, dated as of November 11, 1997, by and among Fine Host, all of the
Subsidiaries and the Administrative Agent (said Fourth Amended and Restated Loan
Agreement, as so amended and/or affected, is hereinafter referred to as the
"Loan Agreement") shall have the meanings given to such terms in the Loan
Agreement.
PRELIMINARY STATEMENTS
WHEREAS, on December 12, 1997, Fine Host issued a press release
announcing, inter alia, that (i) the Audit Committee of its Board of Directors
had instructed Fine Host's auditors to conduct an inquiry into certain
accounting practices, including the capitalization of certain expenses, (ii) the
auditors had advised the Audit Committee on December 12, 1997, based upon their
preliminary inquiry, that certain expenses incurred during 1997 had been
incorrectly capitalized rather than expensed in the period in which they were
incurred and (iii) Fine Host believed the amounts would be material and that
earnings for each of the first three quarters of 1997 would need to be restated;
and
WHEREAS, on December 15, 1997, Fine Host issued a press release
announcing, inter alia, that (i) preliminary indications were that the
accounting problems were not limited to the incorrect capitalization of expenses
and that periods prior to 1997 would also need to be restated and (ii) the
outside directors of Fine Host's Board of Directors had terminated the
employment of Richard E. Kerley, Chairman of the Board of Directors and Chief
Executive Officer, and Nelson A. Barber, Senior Vice President and Treasurer;
and
WHEREAS, on December 15, 1997, counsel to the Administrative Agent
notified Fine Host, that, inter alia, pursuant to Section 8.2 of the Loan
Agreement the Banks were no longer obligated to make, and would no longer make
Loans under the Loan Agreement; and
WHEREAS, on February 6, 1998, Fine Host issued a press release
announcing, inter alia, that (i) it will restate its financial statements for
fiscal years 1994 through 1996, and for the nine months ended September 24,
1997, (ii) as a result of the restatement, Fine Host will report pre-tax losses
of approximately $1,600,000 for 1994; $4,300,000 for 1995; $6,300,000 for 1996;
and $11,400,000 for the nine months ended September 24, 1997 and (iii) the
restatement will include a cumulative negative adjustment of $2,800,000 for
years prior to 1994; and
WHEREAS, in light of the foregoing, the parties have agreed, subject
only to subsection 1.2 of this Third Amendment to terminate the Banks'
obligations to make Loans and/or provide Extensions of Credit under the Loan
Documents, including the Loan Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Termination of Commitments.
1.1 Subject only to subsection 1.2 of this Third Amendment,
effective as of the date hereof: --------------
(a) All Commitments, including the Swing Line Commitment,
are hereby irrevocably and unconditionally terminated, canceled
and eliminated in all respects; and
(b) The Banks, including the Swing Line Bank and the Issuing
Bank, shall no longer have any obligation to make, and the
Borrowers, including the Borrower Agent, shall no longer have any
right to request, any Loan or Extension of Credit of any kind or
nature whatsoever under the Loan Documents, including, the Loan
Agreement.
1.2 Notwithstanding subsection 1.1 of this Third Amendment to the
contrary, nothing in this Third Amendment or otherwise, shall be
deemed or construed, directly or indirectly, by implication or
otherwise to terminate, cancel, eliminate, limit or otherwise affect
in any way (i) the Issuing Bank's payment obligations under the Letter
of Credit described on Schedule 1 hereto (such Letter of Credit being
referred to herein as the "Outstanding L/C"), (ii) the Issuing Bank's
and the Banks' respective obligations, if any, under the Loan
Agreement with respect to (but only with respect to) the Outstanding
L/C; (iii) the Borrowers' Reimbursement Obligations, together with
interest thereon to the extent provided for in the Loan Agreement,
with respect to the Outstanding L/C, (iv) the Borrowers' obligations
to pay or reimburse any fees, commissions, expenses or other charges
provided for in the Loan Documents (after giving effect to the
termination of the Commitments pursuant to subsection 1.1 hereof),
including, without limitation, the fees, commissions, expenses or
other charges provided for in subsection 2.1.13 of the Loan Agreement
(but not including the fees provided for in subsections 2.1.4 and
2.2.4 of the Loan Agreement, which fees shall not be payable from and
after December 15, 1997), (v) the Banks' obligations under subsection
2.1.15A(a) of the Loan Agreement to make their respective Guidance
Loan Percentages available to the Administrative Agent to the extent
provided for in such subsections with respect to (but only with
respect to) the Outstanding L/C; provided, however, notwithstanding
anything in the Loan Agreement to the contrary, any Guidance Loan made
or otherwise constituted pursuant to subsection 2.1.15A(a) of the Loan
Agreement with respect to the Outstanding L/C shall be immediately due
and payable on the Borrowing Date applicable to any such Loan, without
presentment, demand, protest, or notice of any kind, all of which are
hereby waived by the Borrowers and the Borrower Agent and (vi) the
validity, perfection or priority of any Lien in favor of the Agents
and/or the Banks with respect to the Collateral.
2. Amendments To Loan Agreement.
2.1 Amendments to Subsection 1.1.
(a) The definition of "Guidance Loan Maturity Date" in
subsection 1.1 of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"Guidance Loan Maturity Date" means August 1, 1999.
(b) The definition of "Reimbursement Obligation" in
subsection 1.1 of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"Reimbursement Obligation" means the obligation of the
Borrowers to reimburse the Issuing Bank pursuant to subsections
2.1.15 and/or 2.1.15A for amounts drawn under Letters of Credit.
2.2 Amendments to Section 10.12. The addresses for notices set
forth in Section 10.12 of the Loan Agreement are hereby amended and
restated in their entirety as follows:
(i) If to the Administrative Agent, at:
BankBoston, N.A.
100 Federal Street
Boston, MA 02110
Attention: David F. Eusden, Director
Mail Code: 01-06-01
Telephone No.: 617-434-5176
Telecopier No. 617-434-4775
with copies to:
Peabody & Arnold
50 Rowes Wharf
Boston, MA 02110
Attention: Anil Khosla, Esq.
Telecopier No. 617-951-2125
and
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Chaim J. Fortgang, Esq.
(ii) If to the Documentation Agent, at:
USTrust
40 Court Street
Boston, MA 02108
Attention: Michael O'Neill
Telephone No.: 617-726-7198
Telecopier No. 617-695-5250
with copies to:
Peabody & Arnold
50 Rowes Wharf
Boston, MA 02110
Attention: Anil Khosla, Esq.
Telecopier No. 617-951-2125
and
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Chaim J. Fortgang, Esq.
(iii) If to any Borrower, at:
Fine Host Corporation
3 Greenwich Office Park
Greenwich, CT 06831
Attention: Catherine B. James
Telecopier No. 203-629-5089
with a copy to:
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, NY 10022
Attention: Cornelius T. Finnegan, III, Esq.
Telecopier No.: 212-821-8111
2.3 Amendments to Annex B. The addresses for notices set forth on
Annex B of the Loan Agreement are amended as follows:
For BANKBOSTON, N.A.:
BankBoston, N.A.
100 Federal Street
Boston, MA 02110
Attn: David F. Eusden, Director
Mail Code: 01-06-01
Telephone: 617-434-5176
Telecopier: 617-434-4775
For USTRUST:
USTrust
40 Court Street
Boston, MA 02108
Attention: Michael O'Neill
Telephone No.: 617-726-7198
Telecopier No. 617-695-5250
For THE SUMITOMO BANK, LIMITED:
The Sumitomo Bank, Limited
450 Lexington Avenue, Suite 1700
New York, NY 10017
Attn: Ronald W. Gale, Vice President
Telephone: 212-808-2337
Telecopier: 212-818-8065
For STATE STREET BANK AND TRUST COMPANY:
State Street Bank and Trust Company
191 Post Road West
Westport, CT 06880
Attn: Arlene M. Doherty, Vice President
Telephone: 203- 221-2778
Telecopier: 203-222-0527
For MELLON BANK, N.A.:
Mellon Bank, N.A.
1735 Market Street
AIM# 1930705
Philadelphia, PA 19103
Attn: Susan Saxer, SVP
Telephone: 215-553-4364
Telecopier: 215-553-4560
For THE BANK OF NEW YORK:
The Bank of New York
One Wall Street, 16th Floor
New York, NY 10286
Attn: Richard P. Hebner, VP
Telephone: 212-635-7214
Telecopier: 212-635-7290
with a copy to:
The Bank of New York
One Wall Street, 16th Floor
New York, NY 10286
Attn: Albert R. Taylor
Telephone: 212-635-7284
Telecopier: 212-635-7290
For KEYBANK, N.A.:
KeyBank, N.A.
One Canal Plaza
ME-01-CP-06-05
Portland, ME 04101
Attn: Alex Strazzela
Telephone: 207-874-7266
Telecopier: 207-874-7002
For FIRST UNION NATIONAL BANK:
First Union National Bank
Special Assets Division
5 Research Drive
Shelton, CT 06484
Attn: Thomas J. Donnelly, SVP
Telephone: 203-944-4132
Telecopier: 203-944-4678
For BANK OF SCOTLAND:
Bank of Scotland
One Post Office Square, Suite 3750
Boston, MA 02109
Attn: William Boland, Director
Telephone: 617-426-1059
Telecopier: 617-426-1353
with a copy to:
Bank of Scotland
565 Fifth Avenue
New York, New York 10017
Attn: Annie Chin Tat, Vice President
Telephone: 212-450-0871
Telecopier: 212-557-9460
For THE BANK OF NOVA SCOTIA:
The Bank of Nova Scotia
One Liberty Plaza, 26th Floor
New York, New York 10006
Attn: Kevin McCarthy
Telephone: 212-225-5074
Telecopier: 212-225-5090
For NATIONAL WESTMINSTER BANK plc:
National Westminster Bank plc
175 Water Street, 26th Floor
New York, New York 10028
Attn: Andrew S. Weinberg
Telephone: 212-602-4438
Telecopier: 212-602-4506
with a copy to:
Gleacher NatWest
660 Madison Avenue, 17th Floor
New York, New York 10012
Attn: Field Smith, VP
Telephone: 212-418-4525
Telecopier: 212-418-4598
For BANK LEUMI USA:
Bank Leumi USA
562 Fifth Avenue
New York, New York 10036
Attn: Paul Tine
Telephone: 212-626-1386
Telecopier: 212-626-1311
3. Ratification of Loan Documents. Subject to the amendments expressly
set forth in this Third Amendment, each of the Borrowers 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.
4. Miscellaneous.
4.1 No Other Amendments; No Waiver. Except for the amendments
expressly set forth in this Third Amendment, 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 any of the Agents or the Banks, or a waiver of any Event
of Default on any occasion, other than as expressly set forth herein;
and nothing contained herein shall constitute an agreement by any of
the Agents or the Banks or obligate any of the Agents or the Banks to
take or refrain from taking any action.
4.2 Execution; Counterparts. This Third 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
Third Amendment shall become binding when one or more counterparts
hereof, individually or taken together, shall bear the signatures of
the Borrowers and the Required Banks.
4.3 Successors and Assigns. This Third Amendment shall be binding
upon and inure to the benefit of the parties hereto, and their
respective representatives, successors and assigns.
4.4 Joint and Several Liability. All of the obligations and
liabilities of the Borrowers under this Third Amendment and under all
of the other Loan Documents are joint and several.
4.5 Governing Law. This Third 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 Third 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.
BANKBOSTON, N.A., USTRUST, AS
AS ADMINISTRATIVE AGENT DOCUMENTATION AGENT
By:_______________________ By:_______________________
Title:____________________ Title:____________________
BANKBOSTON, N.A. AS LENDER USTRUST, AS LENDER
By:_______________________ By:_______________________
Title:____________________ Title:____________________
STATE STREET BANK AND THE SUMITOMO BANK, LIMITED
TRUST COMPANY
By:_______________________
Title:____________________
By:_______________________ By:_______________________
Title:____________________ Title:____________________
MELLON BANK, N.A. THE BANK OF NEW YORK
By:_______________________ By:_______________________
Title:____________________ Title:____________________
KEYBANK, N.A. FRIST UNION BANK OF CONNECTICUT
By:_______________________ By:_______________________
Title:____________________ Title:____________________
THE BANK OF SCOTLAND THE BANK OF NOVA SCOTIA
By:_______________________ By:_______________________
Title:____________________ Title:____________________
NATIONAL WESTMINSTER BANK plc BANK LEUMI USA
By:_______________________ By:_______________________
Title:____________________ Title:____________________
FINE HOST CORPORATION FINE HOST SERVICES CORPORATION
By:_______________________ By:_______________________
Title:____________________ Title:____________________
FINE HOST OF VERMONT, INC. FANFARE, INC.
By:_______________________ By:_______________________
Title:____________________ Title:____________________
GLOBAL FANFARE, INC. CORPORATION FINE HOST INTERNATIONAL
By:_______________________ By:_______________________
Title:____________________ Title:____________________
CREATIVE FOOD MANAGEMENT INC. NORTHWEST FOOD SERVICE, INC.
By:_______________________ By:_______________________
Title:____________________ Title:____________________
TARRANT COUNTY SUN WEST SERVICES, INC.
CONCESSIONS, L.L.C.
By:_______________________ By:_______________________
Title:____________________ Title:____________________
REPUBLIC MANAGEMENT CORP.OF VERSATILE HOLDINGS CORPORATION
MASSACHUSETTS
By:_______________________ By:_______________________
Title:____________________ Title:____________________
SERV-RITE CORPORATION IDEAL MANAGEMENT SERVICES, INC.
By:_______________________ By:_______________________
Title:____________________ Title:____________________
SERVICE DYNAMICS CORP. PCS HOLDING CORP. (f/k/a HCS
Management Corp.)
By:_______________________ By:_______________________
Title:____________________ Title:____________________
PCS MANAGEMENT CORP. HEARTSTRINGS GIFT SHOPS, INC.
(f/k/a N.C. PCSM, Inc.) (f/k/a Hospital Coffee Shoppes, Inc.)
By:_______________________ By:_______________________
Title:____________________ Title:____________________
THE ENVIRONMENTAL GROUP, INC. CREATIVE DATA SYSTEMS, INC.
By:_______________________ By:_______________________
Title:____________________ Title:____________________
STATEWIDE CATERING, INC. BEST, INC.
By:_______________________ By:_______________________
Title:____________________ Title:____________________
TOTAL FOOD SERVICE DIRECTION, INC. GLOBAL FOOD SERVICE, INC.
By:_______________________ By:_______________________
Title:____________________ Title:____________________
FINE HOST/R&N/A CUP ABOVE JOINT VENTURE, a joint venture
By: Fine Host Corporation, in its capacity as a
joint venturer of aforesaid joint venture
By:_______________________
Title:____________________
By: R&N Management Services, Inc., in its
capacity as a joint venturer of aforesaid
joint venture
By:_______________________
By: Minority Empowerment Opportunity Co.,
Inc. (doing business as A Cup Above),
in its capacity as a joint venturer
of aforesaid joint venture
By:_______________________
FINE HOST/S. BROOKS & ASSOCIATES
JOINT VENTURE, a joint venture
By: Fine Host Corporation, in its capacity as a
joint venturer of aforesaid joint venture
By:_______________________
Title:____________________
By: S. Brooks & Associates, Inc., in its capacity
as a joint venturer of aforesaid joint venture
By:_______________________
Title:____________________
WISCONSIN CENTER JOINT VENTURE, a joint venture
By: Fine Host Corporation, in its capacity as a
joint venturer of aforesaid joint venture
By:_______________________
Title:____________________
By: Five-Star Marketing, Inc., in its capacity as
a joint venturer of aforesaid joint venture
By:_______________________
Title:____________________
SCHEDULE 1
LETTER OF CREDIT
Account Party Beneficiary Issuer Number
Fine Host Corporation Maryland Stadium BankBoston, N.A. I-053-NEMM-50081746
Authority