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EXHIBIT 99.3
, 0000
XXXXXXXX XXXXX XXXXXXXXX
Xxxxxx Xxxxxx Trust Company of New York
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Dear Sirs:
American Restaurant Group, Inc., a Delaware corporation (the "Company),
proposes to offer to exchange (the "Exchange Offer") up to (i) $158,600,000 in
aggregate principal amount of its 11 1/2% Series B Senior Secured Notes due 2003
(the "Exchange Notes"), for up to $158,600,000 in aggregate principal amount of
its outstanding 11 1/2% Series A Senior Secured Notes due 2003 (the "Notes"),
and (ii) 35,000 shares of its 12% Series B Senior Pay-in-Kind Exchangeable
Preferred Stock, par value $0.01 per share (the "Exchange Preferred Stock" and,
together with the Exchange Notes, the "Exchange Securities"), for up to 35,000
shares of its issued and outstanding 12% Senior Pay-in-Kind Exchangeable
Preferred Stock, par value $0.01 per share (the "Preferred Stock" and, together
with the Notes, the "Securities").
The Exchange Offer will commence on , 1998. The Exchange Offer and
withdrawal rights will expire at 5:00 p.m., New York City time, on , 1998,
unless the Company extends the offer by written notice to you (the "Expiration
Date").
1. Appointment as Exchange Agent. Subject to your acceptance hereof,
the Company appoints you as the exchange agent (the "Exchange Agent") for the
purposes and upon the terms and conditions set forth herein. In this connection,
the Company has enclosed the Exchange Documents (as defined below) and certified
copies of resolutions of the Company's Board of Directors approving the Exchange
Offer and authorizing the officers of the Company to enter into this Agreement
and to carry out the transactions contemplated by the Exchange Offer.
2. Compensation. The Company has entered into an agreement with you
with respect to compensation for various services and no additional compensation
is payable in connection with your services hereunder.
3. Receipt of Tenders. You shall receive all tenders of Securities and
determine whether each such tender has been made in accordance with the
procedures set forth in the Prospectus relating to the Exchange Offer dated July
27, 1998 (the "Prospectus") or the Letter of Transmittal described therein (the
"Letter of Transmittal"), subject to the right of the Company to determine the
validity of any tender, as described in the Prospectus.
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Determination of all questions as to the validity, form, eligibility
(including time of receipt) and acceptance for exchange of any tender of
Securities shall be made by the Company, whose determination shall be final and
binding.
You shall segregate all tenders which are in accordance with the
procedures set forth in the Prospectus or the Letter of Transmittal from those
which are not ("Defective Deposits"). Upon consultation with the Company or its
representatives, you shall use your best efforts to cause holders who effected
any Defective Deposit to cure such Defective Deposit.
You will hold all items which are deposited for tender with you after
5:00 p.m., New York City time, on the date the Exchange Offer expires pending
further instructions from an officer of the Company.
4. Exchange Documents. At the request of the Company you shall furnish
copies of any or all of the Prospectus, the Letter of Transmittal and the Notice
of Guaranteed Delivery (collectively, the "Exchange Documents") promptly to any
person designated in such request. All mailings under this Section shall be by
first class mail, postage prepaid, unless otherwise specified in such request.
The Company will furnish you with such additional copies of the Exchange
Documents as you may request to fulfill your obligations under this Section.
5. Notification of Changes in the Exchange Offer. At the request of the
Company, you shall notify tendering holders of Securities in the event of any
rescission or modification of the Exchange Offer. In the event of any such
rescission, you will return all tendered Securities to the persons entitled
thereto, at the request of the Company.
6. Delivery of Exchange Securities; Irrevocability of Tenders; Return
of Securities. On the fifth and tenth business days following the commencement
of the Exchange Offer and on each business day thereafter, up to and including
the Expiration Date, you are to advise Xx. Xxx X. Xx Xxxxx, Vice President -
Finance of the Company, or another designated officer or agent of the Company,
orally (to be promptly confirmed in writing) of the aggregate principal amount
of Securities which have been properly tendered pursuant to the Exchange Offer.
In addition, you will also inform the aforementioned person or persons upon oral
request made from time to time prior to the Expiration Date of such other
information as they may reasonably request. Upon the expiration of the Exchange
Offer, Xx. Xx Xxxxx, or another designated officer or agent of the Company will
confirm to you orally (oral notice to be promptly confirmed in writing) or in
writing the aggregate principal amount of Securities being exchanged for
Exchange Securities pursuant to the Exchange Offer. The Securities accepted for
exchange are to be cancelled.
As soon as practicable after the Company notifies you of its election
to exchange Securities pursuant to the preceding paragraph and upon receipt by
you of certificates for the Exchange Securities in an aggregate principal amount
equal to the principal amount of Securities to be exchanged pursuant to any such
election, you shall (i) deliver the tendered Securities, which have previously
been cancelled, to such person or entity as the
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Company shall designate by written notice to you, and (ii) deliver over your
window or send by first-class mail postage prepaid to, or at the direction of,
each holder whose Securities are being exchanged a certificate for the Exchange
Securities in respect of the aggregate principal amount of Securities so
exchanged.
Tenders pursuant to the Exchange Offer are irrevocable, except that
Securities tendered pursuant to the Exchange Offer may be withdrawn at any time
prior to the Expiration Date.
If, pursuant to the terms of the Exchange Offer, the Company does not
accept and exchange all or any part of the Securities, or Securities are
tendered but withdrawn prior to the Expiration Date, or partial tenders are
made, you shall promptly return to, or upon the order of, the tendering holder,
certificates for Securities not exchanged or, to the extent required, submit to
the Company for reissuance to, or upon the order of, the tendering holder
certificates for Securities not tendered or exchanged, which certificate shall
be returned to you for disposition.
Certificates for unexchanged Securities shall be forwarded by first
class mail under an existing insurance policy protecting you and the Company
from loss or liability arising out of the non-receipt or non-delivery of such
certificates or by registered mail insured separately for the replacement value
of such certificates.
7. Limited Liability of Exchange Agent. As Exchange Agent you:
(a) shall have no duties or obligations other than those
specifically set forth herein;
(b) will not be required to and will make no
representations and have no responsibilities as to the validity,
sufficiency, value or genuineness of any Securities, Letters of
Transmittal or documents deposited with you, or of any Securities or
Exchange Securities delivered by you, pursuant to the Exchange Offer or
of any signatures or endorsements, other than your own, or any thereof;
(c) shall not be obligated to take any action hereunder
that might in your judgment involve any expense or liability unless you
have been furnished with reasonable indemnity;
(d) shall not be liable for any action taken or omitted
by you, or any action suffered by you to be taken or omitted, without
negligence, misconduct or bad faith on your part, in connection with
this Agreement or your compliance with the instructions set forth
herein or with any written or oral instructions delivered to you
pursuant hereto, and may rely on, and shall be protected in acting on,
any certificate, instrument, opinion, notice, letter, telegram or other
document, or any security, delivered to you and reasonably believed by
you to be genuine and to have been signed by a proper party or parties;
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(e) may rely on, and shall be protected in acting on, the
written or oral instructions, with respect to any matter relating to
your duties as Exchange Agent, of any officer of the Company; and
(f) may consult counsel satisfactory to you (including
counsel for the Company) and the advice of such counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by you hereunder in good faith and in
accordance with such advice of such counsel.
8. Indemnification of Exchange Agent. The Company agrees
to reimburse you for and to indemnify you against and hold you harmless from all
liability, cost or expense (including reasonable fees and expenses of counsel)
that may be paid, incurred or suffered by you or to which you may become subject
without negligence, misconduct or bad faith on your part, arising out of or in
connection with this Agreement.
The Company shall be notified by you, by letter or by cable or
telex confirmed by letter, of the written assertion of a claim against you or of
any action commenced against you, within ten days after you shall have received
any such written assertion of a claim or shall have been served with the summons
or other first legal process giving information as to the nature and basis of
the claim, but failure to so notify the Company shall not relieve the Company
from any liability which the Company otherwise may have on account of this
Section 8. The Company shall be entitled to participate at its own expense in
the defense of any such claim, and if the Company so elects at any time after
receipt of such notice, the Company shall assume the defense of any suit brought
to enforce any such claim. In the event that the Company assumes the defense of
any such claim, the Company shall not be liable for any fees and expenses of
counsel thereafter incurred by you for the defense of such claim unless there
shall be a conflict of your interests and those of the Company.
9. Notices. Except as otherwise expressly provided
herein, all notice and other communications hereunder shall be in writing, shall
be delivered by hand or first class mail, postage prepaid, shall be deemed given
when received and shall be sent to the addresses listed below or to such other
addresses as the addressee shall designate from time to time by notice:
Company: American Restaurant Group, Inc.
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxx X. Xx Xxxxx
Vice President - Finance
Exchange
Agent: United States Trust Company of New York
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Trust Department
Xx. Xxxxxx Xxxxx
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10. Amendment, Modification. This Agreement may not be modified,
amended or supplemented without an express written agreement executed by the
parties hereto.
11. Governing Law; Benefit of Agreement. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES THEREOF. This Agreement shall
inure solely to the benefit of, and the obligations created hereby shall be
binding upon, the parties hereto and their respective successors and assigns. No
other person shall acquire or have any rights under or by virtue of this
Agreement.
If the foregoing is in accordance with your understanding, would you
please indicate your agreement by signing and returning the enclosed copy of
this letter to the Company.
Very truly yours,
AMERICAN RESTAURANT GROUP, INC.
By:_____________________________________
Name: Xxx X. XxXxxxx
Title: Vice President - Finance
Agreed to this ____ day
of July, 0000
XXXXXX XXXXXX TRUST
COMPANY OF NEW YORK
By:_______________________________
Name:
Title:
