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EXHIBIT 4.13
EXECUTION
AMERICAN RESTAURANT GROUP
LIMITED WAIVER AND SEVENTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS LIMITED WAIVER AND SEVENTH AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT (this "AMENDMENT") is dated as of September 10, 1996, and
entered into by and among AMERICAN RESTAURANT GROUP, INC., a Delaware
corporation ("COMPANY"), the Subsidiaries of Company listed on the signature
pages hereof (the "WORKING CAPITAL BORROWERS"), the financial institutions
listed on the signature pages hereof ("LENDERS") and BANKERS TRUST COMPANY, as
agent for Lenders ("AGENT"), and, for purposes of Section 3 hereof, Local
Favorite, Inc., a California corporation, and is made with reference to that
certain Amended and Restated Credit Agreement, dated as of December 13, 1993,
as amended by that certain Limited Waiver and First Amendment to Amended and
Restated Credit Agreement dated as of March 23, 1994, that certain Second
Amendment to Amended and Restated Credit Agreement dated as of May 10, 1994,
that certain Limited Waiver and Third Amendment to Amended and Restated Credit
Agreement dated as of March 17, 1995, and that certain Limited Waiver and
Fourth Amendment to Amended and Restated Credit Agreement dated as of November
1, 1995, that certain Limited Waiver and Fifth Amendment to Amended and
Restated Credit Agreement dated as of February 27, 1996 and that certain
Limited Waiver and Sixth Amendment to Amended and Restated Credit Agreement
dated as of August 26, 1996 (the "CREDIT AGREEMENT"), by and among Company, the
Working Capital Borrowers, Lenders and Agent. Capitalized terms used herein
without definition shall have the same meanings herein as set forth in the
Credit Agreement.
RECITALS
WHEREAS, Borrowers have requested Lenders to extend the maturity date
of the Facility Letter of Credit Commitments and Lenders have agreed to make
such extensions subject to the terms and conditions set forth herein;
WHEREAS, Borrowers have requested Lenders to waive the Events of
Default resulting from Borrowers failure (a) to pay all outstanding Working
Capital Loans upon their maturity on August 29, 1996 and (b) to consummate the
Asset Sale described in subsection 5.19 of the Credit Agreement on or prior to
August 29, 1996;
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NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1.
AMENDMENTS TO THE CREDIT AGREEMENT
(a) Subsection 2.10A of the Credit Agreement is hereby amended by
deleting all references to "October 15, 1996" contained therein and
substituting "November 15, 1996" therefor.
(b) Subsection 2.10A of the Credit Agreement is hereby further amended
by adding the following paragraph at the end of such subsection:
"If (i) all of the outstanding Working Capital Loans
are paid in full and the Working Capital Commitments
terminated on or before September 13, 1996, and (ii) no Event
of Default or Potential Event of Default shall have occurred
and be continuing as of such date, then the maturity date of
the Facility Letter of Credit Commitments shall be extended
from November 15, 1996 to March 31, 1997, and all references
to November 15, 1996 contained in this subsection 2.10A shall
be deemed references to March 31, 1997."
SECTION 2.
REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, each Loan Party represents
and warrants to each Lender that the following statements are true, correct and
complete:
2.1 CORPORATE POWER AND AUTHORITY.
Each Loan Party has all requisite corporate power and authority to
enter into this Amendment and to carry out the transactions contemplated by,
and perform its obligations under, the Credit Agreement as amended by this
Amendment (the "AMENDED AGREEMENT").
2.2 AUTHORIZATION OF AGREEMENTS.
The execution and delivery of this Amendment and the performance of
the Amended Agreement have been duly authorized by all necessary corporate
action on the part of each Loan Party.
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2.3 NO CONFLICT.
The execution and delivery by each Loan Party of this Amendment and
the performance by each Loan Party of the Amended Agreement do not and will not
(a) violate any provision of any law or any governmental rule or regulation
applicable to any Loan Party, the Certificate or Articles of Incorporation or
Bylaws of any Loan Party or any order, judgment or decree of any court or other
agency of government binding on any Loan Party, (b) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any Contractual Obligation of any Loan Party, except for conflicts,
breaches or defaults which would not singly or in the aggregate have a Material
Adverse Effect, (c) result in or require the creation or imposition of any Lien
upon any of the properties or assets of any Loan Party (other than any Liens in
favor of Collateral Agent for the benefit of Lenders and the Senior Note
Holders), or (d) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of any Loan Party,
except for such approvals or consents which have been obtained on or before the
Seventh Amendment Effective Date (as hereinafter defined in Section 5) or the
absence of which would not singly or in the aggregate have a Material Adverse
Effect.
2.4 GOVERNMENTAL CONSENTS.
The execution, delivery and performance by each Loan Party of this
Amendment and the Amended Agreement do not and will not require any
registration with, consent or approval of, or notice to, or action to, with or
by, any Federal, state or other governmental authority or regulatory body,
other than registrations, consents, approvals, notices and actions that have
been taken or obtained prior to the Seventh Amendment Effective Date or the
absence of which would not have a Material Adverse Effect.
2.5 BINDING OBLIGATION.
This Amendment and the Amended Agreement have been duly executed and
delivered by each Loan Party which is a party thereto and are the legally valid
and binding obligations of each such Loan Party, enforceable against each such
Loan Party in accordance with their respective terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles relating
to enforceability.
2.6 INCORPORATION OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties contained in Section 4 of the
Credit Agreement and each Collateral Document are and will be true, correct and
complete in all material respects on and as of the Seventh Amendment Effective
Date to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
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2.7 ABSENCE OF DEFAULT.
As of the Seventh Amendment Effective Date, after giving effect to
this Amendment, no event has occurred and is continuing or will result from the
consummation of the transactions contemplated by this Amendment that would
constitute an Event of Default or a Potential Event of Default.
SECTION 3.
ACKNOWLEDGEMENT AND CONSENT
Company is a party to the Company Guaranty pursuant to which Company
has guarantied certain Obligations under the Credit Agreement. Each Subsidiary
of Company is a party to the Subsidiary Guaranty Agreement pursuant to which
each such Subsidiary has guarantied certain Obligations under the Credit
Agreement. Each of the Loan Parties is a party to certain Collateral Documents
pursuant to which the Loan Parties have granted Liens on certain Collateral to
the Collateral Agent, for the benefit of Lenders and the Senior Note Holders.
The Company Guaranty, the Subsidiary Guaranty Agreement and the Collateral
Documents are collectively referred to herein as the "CREDIT SUPPORT
DOCUMENTS".
Each Loan Party hereby acknowledges that it has reviewed the terms and
provisions of the Credit Agreement and this Amendment and consents to the
amendment of the Credit Agreement effected pursuant to this Amendment. Each
Loan Party hereby confirms that each Credit Support Document to which it is a
party or otherwise bound and all Collateral encumbered thereby will continue to
guaranty or secure, as the case may be, to the fullest extent possible the
payment and performance of all "GUARANTIED OBLIGATIONS" and "SECURED
OBLIGATIONS", as the case may be (in each case as such terms are defined in the
applicable Credit Support Document), including without limitation the payment
and performance of all such "GUARANTIED OBLIGATIONS" or "SECURED OBLIGATIONS",
as the case may be, in respect of the Obligations now or hereafter existing
under or in respect of the Amended Agreement.
Each Loan Party acknowledges and agrees that any of the Credit Support
Documents to which it is a party or otherwise bound shall continue in full
force and effect and that all of its obligations thereunder shall be valid and
enforceable and shall not be impaired or limited by the execution or
effectiveness of this Amendment. Each Loan Party represents and warrants that
all representations and warranties contained in the Amended Agreement and the
Credit Support Documents to which it is a party or otherwise bound are true,
correct and complete in all material respects on and as of the Seventh
Amendment Effective Date to the same extent as though made on and as of that
date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true, correct and complete
in all material respects on and as of such earlier date.
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Each Loan Party (other than Borrowers) acknowledges and agrees that
(a) notwithstanding the conditions to effectiveness set forth in this
Amendment, such Loan Party is not required by the terms of the Credit
Agreement or any other Loan Document to consent to the amendments to the Credit
Agreement effected pursuant to this Amendment and (b) nothing in the Credit
Agreement, this Amendment or any other Loan Document shall be deemed to require
the consent of such Loan Party to any future amendments to the Credit Agreement.
SECTION 4.
LIMITED WAIVER
4.1 WAIVER. Subject to the terms and conditions set forth herein
and in reliance on the representations and warranties of each Loan Party herein
contained, Lenders hereby waive (a) the Event of Default which has occurred and
is continuing under subsection 7.1 as a result of Borrowers failure to pay all
outstanding Working Capital Loans at their stated maturity on August 29, 1996,
(b) the Event of Default which has occurred and is continuing under 7.3 as a
result of the Company's failure to consummate the Asset Sale described in
subsection 5.19 on or before August 29, 1996 and (c) the payment of default
rate interest pursuant to subsection 2.3E of the Credit Agreement from and
including August 29, 1996 through and including September 13, 1996. The
waivers set forth in this Section 4.1 shall be effective until and only until
September 13, 1996.
4.2 LIMITATION OF WAIVER. Without limiting the generality of the
provisions of subsection 9.7 of the Credit Agreement, the waivers set forth
above shall be limited precisely as written and relate solely to the
noncompliance by Company and its Subsidiaries with the provisions of
subsections 2.3E, 7.1 and 7.3 of the Credit Agreement in the manner and to the
extent described above, and nothing in this Section 4 shall be deemed to:
(a) constitute a waiver of compliance by Company or any
of its Subsidiaries with respect to (i) subsections 2.3E, 7.1 or 7.3
of the Credit Agreement in any other instance or (ii) any other term,
provision or condition of the Credit Agreement or any other instrument
or agreement referred to therein; or
(b) prejudice any right or remedy that Agent or any Lender may
now have or may have in the future under or in connection with the
Credit Agreement or any other instrument or agreement referred to
therein.
Except as expressly set forth herein, the terms, provisions and
conditions of the Credit Agreement and the other Loan Documents shall remain in
full force and effect and in all other respects are hereby ratified and
confirmed.
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SECTION 5.
CONDITIONS TO EFFECTIVENESS
This Amendment (including the limited waivers set forth in Section 4
hereof) shall become effective only upon the satisfaction of all of the
following conditions precedent (the date of satisfaction of such conditions
being referred to herein as the "SEVENTH AMENDMENT EFFECTIVE DATE"); provided
that notwithstanding anything herein to the contrary, the extension of the
maturity date of the Facility Letters of Credit set forth in clause (a) of
Section 1 of this Amendment shall become effective upon the execution of
counterparts hereof by each of the Borrowers and Lenders and receipt by Agent
of written or telephonic notification of such execution.
5.1 DOCUMENTS.
On or before the Seventh Amendment Effective Date, Loan Parties shall
deliver to Agent for Lenders (with sufficient originally executed copies, where
appropriate, for each Lender) the following, each, unless otherwise noted,
dated the Seventh Amendment Effective Date:
(a) Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of this Amendment,
certified as of the Seventh Amendment Effective Date by its corporate
secretary or an assistant secretary as being in full force and effect
without modification or amendment; and
(b) Originally executed copies of this Amendment, duly
executed and delivered by each of the parties hereto.
5.2 OPINIONS.
Lenders shall have received originally executed copies of one or more
favorable written opinions of (a) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for Loan
Parties, and (b) the general counsel of Company, each in form and substance
satisfactory to Agent and its counsel, dated as of the Seventh Amendment
Effective Date.
5.3 FEES AND EXPENSES.
Lenders shall have received all accrued and unpaid fees payable under
subsections 2.5D and 2.5E as of the Seventh Amendment Effective Date and all
fees and expenses incurred and payable pursuant to subsection 9.3 of the Credit
Agreement as of the Seventh Amendment Effective Date (including fees and
expenses of counsel to Agent).
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SECTION 6.
MISCELLANEOUS
6.1 REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(a) On and after the Seventh Amendment Effective Date,
each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import referring to
the Credit Agreement, and each reference in the other Loan Documents
to the "Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement shall mean and be a reference
to the Amended Agreement.
(b) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a
waiver of existing Event of Default or Potential Event of Default or
any provision of, or operate as a waiver of any right, power or remedy
of Agent, the Collateral Agent or any Lender under, the Credit
Agreement or any of the other Loan Documents.
6.2 FEES AND EXPENSES.
Company acknowledges that all reasonable costs, fees and expenses as
described in subsection 9.3 of the Credit Agreement incurred by Agent and its
counsel with respect to this Amendment and the documents and transactions
contemplated hereby shall be for the account of Company.
6.3 HEADINGS.
Section and subsection headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive effect.
6.4 APPLICABLE LAW.
THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING WITHOUT LIMITATION SECTION 5.1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
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6.5 COUNTERPARTS.
This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
AMERICAN RESTAURANT GROUP, INC.,
a Delaware corporation
ARG ENTERPRISES, INC.,
a California corporation
SPECTRUM FOODS, INC.,
a California corporation
SPOONS RESTAURANTS, INC.,
a Texas corporation
ARG PROPERTY MANAGEMENT
CORPORATION,
a California corporation
XXXXXX'X, INC.,
a California corporation
By: /s/ XXXXXXX X. XxXXXXXXX, XX.
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Xxxxxxx X. XxXxxxxxx, Xx.
Vice President and
Chief Financial Officer
of each of the foregoing
FOR PURPOSES OF SECTION 3 ONLY:
LOCAL FAVORITE, INC.,
a California corporation
By: /s/ XXXXXXX X. XxXXXXXXX, XX.
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Xxxxxxx X. XxXxxxxxx, Xx.
Vice President and
Chief Financial Officer
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BANKERS TRUST COMPANY,
individually, as Agent and a Lender
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
BANQUE NATIONALE DE PARIS,
as a Lender
By: /s/ X. XXXXXXX
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Name: X. Xxxxxxx
Title: Sr. V.P. & Manager
By: /s/ XXXXXXX XXXXXXXXXX
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Name: Xxxxxxx Xxxxxxxxxx
Title: Assistant Vice President
BANQUE PARIBAS,
as a Lender
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: S.V.P.
By: /s/ XXXXXX X. XXXXX, XX.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
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XXXXX BANK CORPORATION
CAYMAN ISLANDS BRANCH,
as a Lender
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Attorney-In-Fact
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Attorney-In-Fact
DRESDNER BANK AG,
as a Lender
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
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