EXHIBIT 28.3
________ __, 000_
XXXXXXXX XXXXXX XXXXXXXXX
Xxxxxx Xxxxxx Trust Company of New York
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Dear Sirs:
American Restaurant Group Holdings, Inc., a Delaware corporation (the
"Company), proposes to offer to exchange (the "Exchange Offer") up to
$17,000,000 in aggregate principal amount of a new series of its 14% Senior
Discount Debentures due 2005 (the "Exchange Debentures") for up to $17,000,000
in aggregate principal amount of its outstanding 14% Senior Discount Debentures
due 2005 (the "Debentures").
The Exchange Offer will commence on ________ __, 199_. The Exchange
Offer and withdrawal rights will expire at 5:00 p.m., New York City time, on
________ __, 1997, 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 Debentures
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
________ __, 199_ (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.
Determination of all questions as to the validity, form, eligibility
(including time of receipt) and acceptance for exchange of any tender of
Debentures 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 Debentures in the event
of any rescission or modification of the Exchange Offer. In the event of any
such rescission, you will return all tendered Debentures to the persons
entitled thereto, at the request of the Company.
6. Delivery of Exchange Debentures; Irrevocability of Tenders;
Return of Debentures. 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. Xxxxxxx X. XxXxxxxxx,
Xx., Chief Financial Officer 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 Debentures 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. XxXxxxxxx, 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 Debentures being exchanged for Exchange Debentures pursuant
to the Exchange Offer. The Debentures accepted for exchange are to be
cancelled.
As soon as practicable after the Company notifies you of its election
to exchange Debentures pursuant to the preceding paragraph and upon receipt by
you of certificates for the Exchange Debentures in an aggregate principal
amount equal to the principal amount of Debentures to be exchanged pursuant to
any such election, you shall (i) deliver the tendered Debentures, which have
previously been cancelled, to such person or entity as the 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 Debentures are being exchanged a certificate for the Exchange Debentures
in respect of the aggregate principal amount of Debentures so exchanged.
Tenders pursuant to the Exchange Offer are irrevocable, except that
Debentures 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 Debentures, or Debentures 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 Debentures not exchanged or, to the extent required,
submit to the Company for reissuance to, or upon the order of, the tendering
holder certificates for Debentures not tendered or exchanged, which certificate
shall be returned to you for disposition.
Certificates for unexchanged Debentures 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 Debentures, Letters of Transmittal or documents
deposited with you, or of any Debentures or Exchange Debentures 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;
(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, 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 Holdings, Inc.
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxx X. XxXxxxxxx, Xx.
Chief Financial Officer
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
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 HOLDINGS, INC.
By:___________________________________________
Name: Xxxxxxx X. XxXxxxxxx, Xx.
Title: Vice President and
Chief Financial Officer
Agreed to this ____ day
of _________, 199_
UNITED STATES TRUST
COMPANY OF NEW YORK
By:___________________________________
Name:
Title:
