EXHIBIT 4.9
FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE, dated as of June 26, 2000
(the "FIRST SUPPLEMENTAL Indenture"), is made and entered into by and between
American Restaurant Group, Inc., a Delaware corporation (the "COMPANY"), ARG
Terra, Inc., a Delaware corporation, the Guarantee signatory hereto and U.S.
Trust Company, National Association, (formerly known as U.S. Trust Company of
California, N.A.) as trustee (the "TRUSTEE"), under an Indenture, dated as of
February 25, 1998, between the Company and the Trustee, (the "INDENTURE"). All
capitalized terms used in this First Supplemental Indenture that are defined in
the Indenture, either directly or by reference therein, have the respective
meanings assigned to them therein, except to the extent such terms are otherwise
defined in this First Supplemental Indenture or the context clearly requires
otherwise.
RECITALS
WHEREAS, Section 9.1 of the Indenture provides, among other
things, that the Company and the Trustee may amend or supplement the Indenture
without the consent of any Holder to make any change that would provide any
additional rights or benefits to the Holders of the Notes;
WHEREAS, the Company has formed a new Subsidiary called ARG
Terra, Inc. ("ARG TERRA"; collectively with the Company, the "COMPANY PARTIES");
WHEREAS, ARG Terra will be a Restricted Subsidiary under the
Indenture and, as a Restricted Subsidiary, is required to deliver to the Trustee
a supplemental indenture in form reasonably satisfactory to the Trustee pursuant
to which ARG Terra will unconditionally guarantee all of the Company's
Obligations;
WHEREAS, the Boards of Directors of each Company Party have
approved ARG Terra becoming a party to the Indenture and the Security Documents;
and
WHEREAS, the Boards of Directors of the Company has approved
the matters set forth in this First Supplemental Indenture and the Company and
the Trustee are executing and delivering this First Supplemental Indenture in
order to provide therefor.
NOW, THEREFORE, for and in consideration of the premises, and
other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, it is mutually agreed, for the equal and proportionate
benefit of all Holders, as follows:
ARTICLE ONE
AMENDMENT TO INDENTURE
Section 1.1 DEFINITIONS. The following definitions are hereby amended and
restated in their entirety:
"GUARANTORS" means all direct or indirect current and future Restricted
Subsidiaries (including, without limitation, ARG Terra, Inc.), other than Black
Angus Enterprises of Idaho, Inc. ("IDAHO, Inc.") until the Company or any of its
Subsidiaries makes an Investment in Idaho, Inc.
"RESTRICTED SUBSIDIARY" means a Subsidiary (including, without limitation, ARG
Terra, Inc.) other than an Unrestricted Subsidiary.
Section 1.2 SIGNATURE PAGE OF THE INDENTURE. The signature page of the Indenture
is hereby amended by adding ARG Terra, Inc. as a Guarantor.
ARTICLE TWO
GENERAL PROVISIONS
Section 2.1. EFFECTIVENESS OF AMENDMENT. This First Supplemental Indenture is
effective as of the date first written above.
Section 2.2. RATIFICATION OF INDENTURE. The Indenture is in all respects
acknowledged, ratified and confirmed, and shall continue in full force and
effect in accordance with the terms thereof and as supplemented by this First
Supplemental Indenture. All provisions of this First Supplemental Indenture
shall be deemed to be incorporated in, and made a part of the Indenture, and the
Indenture, as supplemented and amended by this First Supplemental Indenture,
shall be read, taken and construed as one and the same instrument.
Section 2.3. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Simultaneously
with and as a condition to the execution of this First Supplemental Indenture,
the Company is delivering to the Trustee:
(a) an Officers' Certificate in form and substance reasonably satisfactory to
the Trustee meeting the requirements set forth in Sections 4.4, 4.10, 4.11, 5.1,
7.1, 7.2, 9.1, 9.6, 10.3, 10.4, 11.4 and 11.5 of the Indenture; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to the
Trustee meeting the requirements set forth in Sections 4.4, 4.10, 4.11, 5.1,
7.1, 7.2, 9.1, 9.6, 10.3, 10.4, 11.4 and 11.5 of the Indenture.
Section 2.4. EFFECT OF HEADINGS. The Article and Section headings in this First
Supplemental Indenture are for convenience only and shall not affect the
construction of this First Supplemental Indenture.
Section 2.5. GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Section 2.6. COUNTERPARTS. This First Supplemental Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute the same
instrument. Delivery of an executed counterpart of a signature page of this
First Supplemental Indenture by facsimile transmission shall be effective as
delivery of a manually executed counterpart of this First Supplemental
Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the day and year first above written.
AMERICAN RESTAURANT GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Attest:
/s/ Xxx Xx Xxxxx
--------------------------------
Name: Xxx Xx Xxxxx
Title: Treasurer & Asst. Secretary
ARG TERRA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
Attest:
/s/ Xxx Xx Xxxxx
---------------------------------
Name: Xxx Xx Xxxxx
Title: Treasurer & Asst. Secretary
American Restaurant Group, Inc.
U.S. TRUST COMPANY, NATIONAL
ASSOCIATION
as Trustee
By: /s/ M. Xxxxxxx Xxxxxxx
------------------------
Name: M. Xxxxxxx Xxxxxxx
Title: Vice President
GUARANTORS
ARG ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ARG PROPERTY MANAGEMENT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXX'X, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SPOONS RESTAURANTS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
LOCAL FAVORITE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SPECTRUM FOODS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
