Filed by Bowne Pure Compliance





Exhibit 10.1




LIMITED WAIVER, CONSENT AND AMENDMENT NO. 3 TO SECOND AMENDED

AND RESTATED CREDIT AGREEMENT




THIS LIMITED WAIVER, CONSENT AND AMENDMENT NO. 3 TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT (this “Agreement”) is entered into as of the 13th day of November 2008, by and
among (a) REAL MEX RESTAURANTS, INC., formerly known as Acapulco Acquisition Corp., a Delaware
corporation (“Real Mex”), ACAPULCO RESTAURANTS, INC., a Delaware corporation
(“ARI”), EL TORITO FRANCHISING COMPANY, a Delaware corporation (“ETFI”), EL TORITO
RESTAURANTS, INC., a Delaware corporation (“ETRI”), TARV, INC., a California corporation
(“TARV”), ACAPULCO RESTAURANT OF VENTURA, INC., a California corporation (“ARV”),
ACAPULCO RESTAURANT OF WESTWOOD, INC., a California corporation (“ARW”), ACAPULCO MARK
CORP., a Delaware corporation (“AMC”), MURRAY PACIFIC, a California corporation
(“MP”), ALA DESIGN, INC., a California corporation (“ALAD”), REAL MEX FOODS, INC.,
formerly known as ALA Foods, Inc., a California corporation (“RMF”), ACAPULCO RESTAURANT OF
DOWNEY, INC., a California corporation (“ARD”), ACAPULCO RESTAURANT OF MORENO VALLEY, INC.,
a California corporation (“AMV”), EL PASO CANTINA, INC., a California corporation
(“EPC”), CKR ACQUISITION CORP., a Delaware corporation (“CKR”), CHEVYS RESTAURANTS,
LLC, a Delaware limited liability company (“Chevys”; and collectively with Real Mex, ARI,
ETFI, ETRI, TARV, ARV, ARW, AMC, MP, ALAD, RMF, ARD, AMV, EPC and CKR, the “Borrowers”),
(b) the lending institutions party hereto as Lenders, and (c) GENERAL ELECTRIC CAPITAL CORPORATION
as agent and administrative agent (the “Agent”) for itself and such lending institutions.



RECITALS




WHEREAS, the Borrowers, Lenders, and Agent entered into a Second Amended and Restated
Revolving Credit Agreement, dated as of January 29, 2007 (as amended prior to the date hereof and
as may be further amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”; unless otherwise defined herein, capitalized terms used herein that are
not otherwise defined herein shall have the respective meanings assigned to such terms in the
Credit Agreement);



WHEREAS, substantially contemporaneously with the execution and delivery of this Agreement,
Parent, Cocina Funding Corp., L.L.C. (“Cocina”), SCSF Cantinas, LLC (“SCSF
Cantinas”), KKR Financial CLO 2007-1, Ltd., KKR Strategic Capital Overseas Fund, Ltd., KKR
Strategic Capital Fund, L.P., KKR Strategic Capital Institutional Fund, Ltd. (collectively,
“KKR”) and Canpartners Investments IV LLC (“Canpartners”) are entering into an
Exchange Agreement (as the same is in effect on the date of this Agreement, the “Exchange
Agreement”), pursuant to which the entire amount of Parent Debt and other obligations incurred
pursuant to or evidenced by the Parent Debt Documents are exchanged on the date of this Agreement
for shares of common stock representing in the aggregate 94.5% of the issued and outstanding
capital stock of Parent (such exchange and other transactions contemplated by the Exchange
Agreement are herein referred to as the “Exchange”);


 


 









 





WHEREAS, substantially contemporaneously with the execution and delivery of this Agreement,
(a) Real Mex, Parent, the lenders party thereto, and Credit Suisse, Cayman Islands Branch, as administrative agent, are entering into a limited waiver, consent and
amendment to amended and restated credit agreement substantially in the form of Annex A
attached hereto (the “Unsecured Credit Agreement Amendment”), (b) the Agent, Credit Suisse,
Cayman Islands Branch, as administrative agent under the Unsecured Term Loan Documents, Cocina, KKR
Financial CLO 2005-2, Ltd., Canpartners, the Parent and the Borrowers are entering into a waiver
and amendment no. 1 to the subordination and intercreditor agreement substantially in the form of
Annex B attached hereto (the “Intercreditor Agreement (Unsecured Term Loan)
Amendment”), and (c) the Agent, Credit Suisse, Cayman Islands Branch, as administrative agent
under the Parent Debt Documents, Cocina, KKR, SCSF Cantinas, Canpartners and the Parent are
entering into a consent, waiver and amendment no. 1 to the subordination and intercreditor
agreement substantially in the form of Annex C attached hereto (the “Intercreditor
Agreement (Parent Debt) Amendment”);



WHEREAS, Borrowers have requested that the Agent and the Lenders amend certain provisions of
the Credit Agreement, consent to the execution and delivery of the Unsecured Credit Agreement
Amendment, the Intercreditor Agreement (Unsecured Term Loan) Amendment, the Intercreditor Agreement
(Parent Debt) Amendment, the Exchange Agreement and the performance of each of the transactions
contemplated thereby, including the Exchange, and waive certain breaches or violations and certain
Defaults and Events of Default under the Credit Agreement, all as set forth in this Agreement; and



WHEREAS, the Agent and Lenders agree to such amendments, consents and waivers upon the terms
and subject to conditions set forth herein.



NOW THEREFORE, in consideration of the premises and the mutual agreements set forth, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:



1. Definitions in Credit Agreement; etc. Unless otherwise defined herein, terms
defined in or by reference to the Credit Agreement (as from time to time amended) are used herein
as therein defined.




2. Limited Waiver. The Agent and the Lenders hereby waive



(a) any breach or violation of the Credit Agreement (and any resulting Default or Event of
Default) to the extent arising solely from the failure of the Borrowers to comply with the
financial covenants set forth in §§11.1, 11.2 and 11.3 of the Credit Agreement for the Measurement
Period ending September 30, 2008 (and to the extent any of the foregoing breaches, violations,
Defaults or Events of Default give rise to a default or event of default under Section 7.2 of the
Unsecured Credit Agreement or under the Parent Debt Documents, any Default or Event of Default
under §14.1(f) of the Credit Agreement arising solely as a result of any such defaults or events of
default); and



(b) any Defaults or Event of Default under §14.1(f) of the Credit Agreement arising solely as
a result of a failure to comply with financial covenants set forth in Section 6.5 of the Unsecured
Credit Agreement for the measurement period ending September 30, 2008;



provided, that the waivers set forth above shall be limited precisely as written and shall
not be deemed or otherwise construed to constitute a waiver of any other Default or other Event of
Default or any other provision of the Credit Agreement or any other Loan Document or to prejudice any right, power or remedy which the Agent or any Lender may now have or may have in the
future under or in connection with the Credit Agreement or any other Loan Document, all of which
rights, power and remedies are hereby expressly reserved by the Agent and the Lenders.


 


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3. Consents. Notwithstanding anything in the Credit Agreement or any other Loan
Document to the contrary,



(a) the Agent and Lenders hereby consent to the execution, delivery and performance of the
Exchange Agreement and the consummation of the Exchange pursuant to the terms thereof;



(b) the Agent and the Lenders hereby consent to the execution, delivery and performance of the
Unsecured Credit Agreement Amendment and the transactions contemplated thereby;



(c) the Lenders hereby consent to the execution, delivery and performance of the Intercreditor
Agreement (Unsecured Term Loan) Amendment and the transactions contemplated thereby and authorize,
direct and instruct the Agent to enter into the Intercreditor Agreement (Unsecured Term Loan)
Amendment; and



(d) the Lenders hereby consent to the execution, delivery and performance of the Intercreditor
Agreement (Parent Debt) Amendment and the transactions contemplated thereby and authorize, direct
and instruct the Agent to enter into the Intercreditor Agreement (Parent Debt) Amendment.




4. Amendments. The Credit Agreement is hereby amended as follows:



(a) §1.1 of the Credit Agreement is amended by amending and restating the following
definitions to read in their entirety as follows:




Applicable Margin. For the period commencing on March 31, 2008 through
the date immediately preceding the Amendment No. 3 Effective Date, the Applicable
Margin with respect to Revolving Credit Loans that are Base Rate Loans shall be
1.25% and the Applicable Margin with respect to Revolving Credit Loans that are
Eurodollar Rate Loans shall be 2.75%. On the Amendment No. 3 Effective Date and at
all time thereafter, the Applicable Margin with respect to Revolving Credit Loans
that are Base Rate Loans shall be 4.17% and the Applicable Margin with respect to
Revolving Credit Loans that are Eurodollar Rate Loans shall be 5.67%.




Base Rate. At any time, a rate per annum equal to the highest of:




(a) the rate last quoted by The Wall Street Journal as the “base rate
on corporate loans posted by at least 75% of the nation’s largest banks” in the
United States or, if The Wall Street Journal ceases to quote such rate, the
highest per annum interest rate published by the Federal Reserve Board in Federal
Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime
loan” rate or, if such rate is no longer quoted therein, any similar rate quoted
therein (as determined by Agent) or any similar release by the Federal Reserve Board (as
determined by Agent),


 


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(b) the sum of 0.5% per annum and the Federal Funds Rate and




(c) the sum of (x) the ratio of (I) the Eurodollar Base Rate for a period of
three months as it appears on Reuters Screen LIBOR01 Page as of 11:00 A.M. (London,
England time) two (2) Business Days prior to such day and (II) the difference
between the number one and any applicable Eurodollar Reserve Requirements, plus (y)
the excess of the Applicable Margin with respect to Eurodollar Rate Loans over the
Applicable Margin with respect to Base Rate Loans, in each instance, as of such day.




Any change in the Base Rate due to a change in any of the foregoing shall be
effective on the effective date of such change in the “bank prime loan” rate, the
Federal Funds Rate or the Eurodollar Base Rate.




Change of Control. At any time, the occurrence of one or more of the
following events: (i) the Parent shall at any time fail to own, directly or
indirectly, 100% of each class of issued and outstanding Voting Stock and economic
interests of Real Mex free and clear of all Liens other than Permitted Liens, (ii)
any “Change of Control” under the Senior Secured Debt Documents, (iii) any “Change
of Control” under (and as defined in) the Unsecured Term Loan Documents, (iv)
Permitted Holders shall at any time fail to own, directly or indirectly, 50.1% of
each class of issued and outstanding Voting Stock and economic interests of the
Parent, or (v) Cocina and its Control Investment Affiliates shall at any time fail
to own, directly or indirectly, a greater percentage of the issued and outstanding
Voting Stock and economic interest of Parent than any other Person and its Control
Investment Affiliates.




Co-Investors. H.I.G. Sun Partners, Inc., SCSF Cantinas and any of
their Control Investment Affiliates, and members of the management of the Parent and
the Borrowers.




Permitted Holders. Collectively, (a) Cocina, KKR and Canpartners, (b)
the Co-Investors, and (c) any Related Parties of (i) Cocina, KKR or Canpartners or
(ii) the Co-Investors.




Restricted Payments. In relation to the Borrowers, any (a)
Distribution, (b) payment in respect of or purchase of the Senior Secured Debt, or
(c) payment in respect of or purchase of the Unsecured Term Loan.




Revolving Credit Loan Maturity Date. The earliest to occur of (a)
January 29, 2010, (b) the payment or defeasance in full of the Senior Secured Debt,
(c) the payment in full in cash of the Unsecured Term Loan or (d) the date upon
which interest on the Permitted Parent Debt is required to be paid in cash pursuant
to the terms thereof.


 


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(b) The definition of the term “Consolidated EBITDA” in §1.1 of the Credit Agreement is
amended by replacing the phrase “minus (k)” appearing therein with the phrase “plus (k) to the
extent deducted in the calculation of Consolidated Pre-Tax Income and without duplication,
documented costs and expenses consisting of (i) restructuring costs and expenses incurred and paid
by the Parent and/or Borrowers, (ii) severance payments paid to employees of the Borrowers and
(iii) fees and expenses incurred and paid by the Parent and/or Borrowers in connection with the
closing of the transactions contemplated by the limited waiver, consent and amendment no. 3 to this
Agreement, the limited waiver, consent and amendment to Unsecured Term Loan Agreement and the New
Equity Documents, each dated as of the Amendment No. 3 Effective Date, in each case incurred and
paid on or before February 15, 2009, in an amount not to exceed $2,100,000 in the aggregate for
all costs, expenses, payments and fees described in the above clauses (i), (ii) and (iii) minus
(l)”



(c) The definition of the term “Eurodollar Base Rate” in §1.1 of the Credit Agreement is
amended by replacing the phrase “page BBAM on the Bloomberg Terminal (successor to the Dow Jones
Markets Telerate Page 3750) (“Page BBAM”)” appearing therein with the phrase “Reuters
Screen LIBOR01 Page” and by replacing the phrase “the Page BBAM (or otherwise on the Bloomberg
Terminal)” appearing therein with the phrase “Reuters Screen LIBOR01 Page”.



(d) §1.1 of the Credit Agreement is further amended by adding thereto in the proper
alphabetical order the following definitions:




Amendment No. 3 Effective Date. November 13, 2008.




Canpartners. Canpartners Investments IV LLC.




Cocina. Cocina Funding Corp., L.L.C., a Delaware limited liability
company.




Exchange Agreement. The Exchange Agreement, dated as of the Amendment
No. 3 Effective Date, by and among Cocina, KKR, Canpartners, SCSF Cantinas and the
Parent.




Exchange Fee Agreement. The letter agreement, dated as of the
Amendment No. 3 Effective Date, by and among Cocina, KKR, Canpartners, SCSF Cantinas
and Real Mex.




Interest Coverage Ratio. As at the end of each fiscal quarter of the
Borrowers, the ratio of (a) Consolidated EBITDA for the four-fiscal quarter period
then ending to (b) Consolidated Total Interest Expense for such four-fiscal quarter
period.




KKR. Collectively, KKR Financial CLO 2007-1, Ltd., KKR Strategic
Capital Overseas Fund, Ltd., KKR Strategic Capital Fund, L.P., and KKR Strategic
Capital Institutional Fund, Ltd.


 


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New Equity Documents. Collectively, (a) the New Stockholders Agreement,
(b) the Exchange Agreement, and (c) the Release and Satisfaction (as such term is
defined in the Exchange Agreement).




New Management Agreement. Collectively, the management service
agreements or consulting services agreement entered into by and among Borrowers or
Parent with the prior written consent of the Agent (not to be unreasonably withheld
or delayed) and each in form and substance reasonably satisfactory to the Agent.




New Stockholders Agreement. The Shareholder Rights Agreement, dated as
of the Amendment No. 3 Effective Date, by and among Cocina, KKR, Canpartners, SCSF
Cantinas and the Parent.




Parent Stockholders. Each owner of the issued capital stock of Parent
as of the Amendment No. 3 Effective Date, as listed on Schedule 8.18(A)
hereto.




Parent Stockholder Affiliates. Any Parent Stockholder and any of its
Control Investment Affiliates.




SCSF Cantinas. SCSF Cantinas, LLC, a Delaware limited liability
company.



(e) §5.6 of the Credit Agreement is amended by replacing the phrase “multiplied by a per annum
rate equal to the Applicable Margin with respect to Loans which are Eurodollar Rate Loans”
appearing therein with the phrase “multiplied by a per annum rate equal to 2.75%”.



(f) §8.5(b) of the Credit Agreement is amended and restated to read in its entirety as
follows:




“(b) Since December 31, 2007, there has occurred no materially adverse
change in the financial condition or business of the Borrowers other than
changes in the ordinary course of business that have not had any materially
adverse effect either individually or in the aggregate on the business or
financial condition of the Borrowers.”



(g) Each of §8.1.2, §8.2, §8.7, §8.25 and §16.4 of the Credit Agreement is amended by
replacing the phrase “the Equity Documents” each time such phrase appears therein with the phrase
“the Equity Documents, the New Equity Documents”.



(h) §8.19 of the Credit Agreement is amended by adding thereto new clause (e), which shall
read in its entirety as follows:




“(e) The New Equity Documents constitute the complete understanding among
the parties thereto in respect of the matters and transactions covered
thereby. As of the Amendment No. 3 Effective Date, the representations and
warranties of the Borrowers and the Parent contained in the New Equity
Documents were true and correct in all material


 


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respects when made or deemed to be made except as would not have a
Materially Adverse Effect and the Agent and the Lenders may rely on such
representations and warranties as if they were incorporated herein on the
Amendment No. 3 Effective Date; provided, that nothing contained
herein shall prejudice in any way any rights of the Borrowers or the Parent
under or in respect of the New Equity Documents, all of which are expressly
hereby reserved.”



(i) §9.4(c) of the Credit Agreement is amended by adding, after the last sentence thereof, the
following sentence:




“The financial statements, projections and other information delivered by
the Borrowers pursuant to this §9.4(c) shall be delivered by the Borrowers
to the Agent by electronic means approved by the Agent in an electronic
format reasonably satisfactory to the Agent, followed by a hard copy if
requested by the Agent.”



(j) §10.4(b) of the Credit Agreement is amended and restated to read in its entirety as
follows:




“(b) (i) payment in respect of or purchase of the Senior Secured Debt funded
solely with the proceeds of the substantially contemporaneous sale or
issuance of common Equity Interest in Parent to Permitted Holders or their
Control Investment Affiliates and (ii) cash payment obligations with respect
to interest and costs and expenses on the Senior Secured Debt to the extent
required by the Senior Secured Debt Documents;”



(k) §10.4(d) of the Credit Agreement is amended and restated to read in its entirety as
follows:




“(d) Distributions made by one more Borrowers to the Parent solely to the
extent all of the proceeds of such Distributions are promptly upon the
Parent’s receipt thereof used by the Parent to make payments of fees and
expenses permitted by clauses (a), (b) or (c) of the proviso to §10.10 (and
to the extent the Parent makes such payments in the form of a Distribution,
such Distributions by the Parent);”



(l) §10.10 of the Credit Agreement is amended by amending and restating the proviso thereto to
read in its entirety as follows:




“provided that for so long as no Default or Event of Default is continuing
the foregoing restriction shall not apply to (a) payments by the Borrowers
and/or the Parent of reasonable expenses (other than fees and expenses of
outside counsel) of Cocina, SCSF Cantinas, KKR and Canpartners or their
Control Investment Affiliates, in each case incurred by such Person in its
capacity as an owner of the Equity Interests in the Parent (including,
without limitation, reasonable travel expenses and outside director fees) in
an aggregate amount not to exceed $150,000 in any fiscal year for all such
Persons, (b) payments by the Borrowers and/or the Parent of management


 


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and consulting fees in accordance with the New Management Agreement, in an
aggregate amount of all such fees not to exceed one percent (1%) of
Consolidated EBITDA in any fiscal year; (c) payments by the Borrowers of
reasonable legal fees and expenses of the Parent (other than legal fees and
expenses and fees and expenses of auditors and accountants incurred in
connection with any litigation relating to or defaults under this Credit
Agreement) in an aggregate amount not to exceed $500,000 after the Amendment
No. 3 Effective Date; (d) payments of fees, costs and expenses made by Real
Mex pursuant to the terms of the Exchange Fee Agreement, as the same is in
effect on the Amendment No. 3 Effective Date, in an aggregate amount not to
exceed $1,200,000; and (e) Investments permitted under §10.3(k)”




(m) §11.1 of the Credit Agreement is amended and restated to read in its entirety as follows:




11.1 Leverage Ratio. The Borrowers will not permit the Leverage Ratio,
determined at the end of and for any period of four consecutive fiscal quarters of
the Borrowers ending during any period, or ending on the last day of the fiscal
quarter which ends nearest to the calendar quarter end date, described in the table
below, to be greater than the ratio set forth opposite such period in such table:



	 	 	 
	Period	 	 
	(inclusive of end dates)	 	Ratio
	 	 	 
	January 1, 2006 — December 31, 2007
	 	3.85 to 1.00
	January 1, 2008 — March 31, 2008
	 	4.00 to 1.00
	April 1, 2008 — June 30, 2008
	 	4.00 to 1.00
	July 1, 2008 — September 30, 2008
	 	4.00 to 1.00
	October 1, 2008 and thereafter
	 	5.25 to 1.00







(n) §11.2 of the Credit Agreement is amended and restated to read in its entirety as follows:




11.2 Adjusted Leverage Ratio. The Borrowers will not permit the
Adjusted Leverage Ratio, determined at the end of and for any period of four
consecutive fiscal quarters of the Borrowers ending during any period, or ending on
the last day of the fiscal quarter which ends nearest to the calendar quarter end
date, described in the table below, to be greater than the ratio set forth opposite
such period in such table:



	 	 	 
	Period	 	 
	(inclusive of end dates)	 	Ratio
	 	 	 
	January 1, 2006 — December 31, 2007
	 	5.95 to 1.00
	January 1, 2008 — March 31, 2008
	 	6.25 to 1.00
	April 1, 2008 — June 30, 2008
	 	6.15 to 1.00
	July 1, 2008 — September 30, 2008
	 	6.15 to 1.00
	October 1, 2008 and thereafter
	 	6.85 to 1.00





 


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(o) §11.3 of the Credit Agreement is amended and restated to read in its entirety as follows:




11.3 Minimum Interest Coverage Ratio. The Borrowers will not permit
the Interest Coverage Ratio, determined for any Measurement Period ending on the
last day of each fiscal quarter, to be less than 1.60 to 1.00.



(p) §16.9 of the Credit Agreement is amended by deleting the following two sentences therefrom
in their entirety:




“Notwithstanding anything to the contrary set forth herein, GE Capital, in
its capacity as Agent hereunder, is permitted at any time without prior
notice to resign as Administrative Agent and to appoint Sun Capital or any
Sun Capital Affiliate as successor Administrative Agent and Collateral Agent
without the prior consent of any Lender or the Borrowers. Upon such
appointment, GE Capital shall be discharged from its duties and obligations
hereunder and under the other Loan Documents as administrative agent or
collateral agent and the provisions of this Credit Agreement and the other
Loan Documents shall continue in effect for its benefit in respect of
actions taken or omitted to be taken by it while it was acting as Agent.”



(q) §11.4(A) of the Credit Agreement is hereby amended and restated to read in its entirety as
follows:




“(A) The Borrowers will not make, and will not permit any of their
Subsidiaries to make, any Capital Expenditures (other than Capital
Expenditures funded solely with the proceeds of a sale or issuance of common
Equity Interests in Parent to Permitted Holders or their Control Investment
Affiliates received by Holdings no earlier than the 60th day prior to the
date that the applicable Capital Expenditure is made and no later than the
date that the applicable Capital Expenditure is made) in excess of (i)
$30,000,000 for the fiscal year ending on or about December 31, 2008 or (ii)
$20,000,000 for any fiscal year ending thereafter; provided,
however, that if Consolidated EBITDA for any fiscal year (each a
“Test Year”) is equal to or greater than $70,000,000, the
Borrowers and their Subsidiaries shall be permitted to make Capital
Expenditures during the fiscal year immediately following such Test Year in
an aggregate amount not to exceed 60% of Consolidated EBITDA for such Test
Year (plus Capital Expenditures funded solely with the proceeds of a sale or
issuance of common Equity Interests in Parent to Permitted Holders or their
Control Investment Affiliates received by Parent no earlier than the 60th day
prior to the date that the applicable Capital Expenditure is made and no
later than the date that the applicable Capital Expenditure is made)”.


 


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(r) §8.18 of the Credit Agreement is amended by adding, after the last sentence thereof, the
following:




“Schedule 8.18(A) lists the owners of all issued capital stock of
Parent as of the Amendment No. 3 Effective Date and the percentage of issued
capital stock of Parent owned by each such Person (after giving effect to
the Exchange and the other transactions contemplated by the New Equity
Documents). As of the Amendment No. 3 Effective Date, except as set forth
on Schedule 8.18(A), there are no securities convertible into or
exchangeable for capital stock of Parent and there are no warrants, options
or other rights to purchase, subscribe for or otherwise acquire any capital
stock of Parent.”



(s) §13 of the Credit Agreement is amended by adding thereto new §13.5, which shall read in
its entirety as follows:




"13.5 Monthly Debt to EBITDA Ratio Compliance. The ratio of (a)
Consolidated Funded Indebtedness as of the close of business on the last day
of the then most recently completed full fiscal month (such day being a
“Compliance Date”) to (b) Consolidated EBITDA for the period of the
most recent four (4) consecutive fiscal quarters ending on or prior to the
relevant Compliance Date for which financial statements have been delivered
pursuant to §9.4(b), does not exceed 5.25 to 1.00.”



(t) §20.1 of the Credit Agreement is amended by deleting the following two sentences therefrom
in their entirety:




“Notwithstanding anything to the contrary set forth herein, GE Capital, in
its capacity as a Lender hereunder is permitted at any time to assign all of
its rights, obligations and liabilities hereunder to Sun Capital or any Sun
Capital Affiliate upon its execution and delivery to Sun Capital or any Sun
Capital Affiliate of an Assignment and Acceptance Agreement, and any such
assignment shall not in any case be subject to the existence or absence of
any Default or Event of Default, the delivery of promissory notes, any
minimum amount of the loans and commitments assigned, the payment of any
assignment fee or any other costs and expenses or the prior consent of any
Lender, the Borrowers, Sun Capital or the Administrative Agent. Upon the
delivery of such Assignment and Acceptance to Sun Capital or any Sun Capital
Affiliate, GE Capital shall be discharged from its duties and obligations
hereunder and under the other Loan Documents.”



(u) §21 of the Credit Agreement is amended by replacing the phrase “postal service” with the
phrase “postal service or, if approved in writing by Agent, by electronic means”.


 


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(v) Schedule 8.18(A) attached hereto is added to the Credit Agreement as Schedule
8.18(A) thereto.



(w) Exhibit B to the Credit Agreement is amended and restated to read as Exhibit
B hereto.



5. Conditions. This Agreement shall be effective on the first day (the “Amendment
No. 3 Effective Date”) upon which each of the following conditions precedent have been
satisfied:



(a) The Agent shall have received a counterpart signature of the Borrowers and the Lenders to
this Agreement;



(b) The Borrowers shall have paid, in immediately available funds, to the Agent for the
account of the Lenders a fully earned and non-refundable amendment fee in the amount of $400,000;



(c) The Borrowers shall deliver all other documents listed on, take all actions set forth on
and satisfy all other conditions precedent listed in the Closing Checklist attached hereto as
Annex D, all in form and substance, or in a manner, reasonably satisfactory to the Agent;



(d) The Unsecured Credit Agreement Amendment shall have been executed and delivered by all
parties thereto;



(e) The Exchange shall have been consummated in accordance with the terms of the Exchange
Agreement and the Agent shall have received evidence reasonably satisfactory to the Agent that the
Parent Debt Documents have been terminated; and



(f) The Borrowers shall have paid to the Lenders or the Agent, all fees that are due and
payable on or before the date hereof and shall have reimbursed the Agent for, or paid directly, all
fees, costs and expenses incurred by the Agent’s counsel in connection with the closing of the
transactions contemplated hereby.



6. Representations and Warranties. The Borrowers represent and warrant to the Lenders
and the Agent as follows:



(a) The execution, delivery and performance of this Agreement (i) is within the corporate
authority of such Person, (ii) has been duly authorized by all necessary corporate proceedings,
(iii) does not conflict with or result in any breach or contravention of any provision of law,
statute, rule or regulation to which any of the Borrowers or any of their Subsidiaries is subject
or any judgment, order, writ, injunction, license or permit applicable to any of the Borrowers or
any of their Subsidiaries and (iv) does not conflict with any provision of the corporate charter or
bylaws of, or any agreement or other instrument binding upon, any of the Borrowers or any of their
Subsidiaries.



(b) The execution and delivery of this Agreement will result in valid and legally binding
obligations of such Person enforceable against it in accordance with the respective terms and
provisions hereof and thereof, except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally the enforcement of
creditors’ rights and except to the extent that availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court
before which any proceeding therefor may be brought.


 


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(c) The execution, delivery and performance by each of the Borrowers and their Subsidiaries of
this Agreement, does not require the approval or consent of, or filing with, any governmental
agency or authority other than those already obtained.



(d) Immediately prior to the execution of this Agreement, none of the Parent or any of its
Subsidiaries are in breach of or default under any of the following agreements, except as set forth
in Schedule 6(d) hereto (or which breach or default has been, or is contemporaneously
herewith being, cured or waived):




(i) any Unsecured Term Loan Document;




(ii) any Senior Secured Debt Document; and




(iii) any other agreement unless, in each case, the breach or default thereunder could
not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.



(e) Each of the representations and warranties of any of the Borrowers and their Subsidiaries
contained in the Credit Agreement, the other Loan Documents or in any document or instrument
delivered pursuant to or in connection with the Credit Agreement shall be true as of the date as of
which they were made and shall also be true at and as of the time and after giving effect to this
Agreement, the Unsecured Credit Agreement Amendment, the Intercreditor Agreement (Unsecured Term
Loan) Amendment, the Intercreditor Agreement (Parent Debt) Amendment, the Exchange Agreement and
the performance of each of the transactions contemplated thereby, including the Exchange, with the
same effect as if made at and as of that time (except to the extent of changes resulting from
transactions contemplated or permitted by the Credit Agreement and the other Loan Documents and
changes occurring in the ordinary course of business that singly or in the aggregate are not
materially adverse, and to the extent that such representations and warranties relate expressly to
an earlier date) and, after giving effect to this Agreement, no Default or Event of Default shall
have occurred and be continuing.


 


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7. Execution in Counterparts. This Agreement 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 to be an original and all of which when taken together shall
constitute but one and the same instrument.



8. Continuing Effect of the Credit Agreement. Except as expressly set forth herein,
this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of, or
otherwise affect the rights and remedies of the Lenders, the Agents or the Borrowers under the
Credit Agreement and shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit Agreement, all of which
are ratified and affirmed in all respects and shall continue in full force and effect. Nothing
herein shall be deemed to entitle the Borrowers to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement in similar or different circumstances. This Agreement shall
apply and be effective only with respect to the provisions of the Credit Agreement specifically
referred to herein. After the effectiveness of this Agreement, any reference to the Credit
Agreement shall mean the Credit Agreement as amended and modified hereby.



9. Applicable Law. THIS AGREEMENT IS A CONTRACT UNDER THE LAWS OF THE STATE OF
ILLINOIS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
SAID STATE OF ILLINOIS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).



10. Headings. Headings herein are included herein for convenience of reference only
and shall not constitute a part hereof for any other purpose or be given any substantive effect.




11. Loan Document. This Agreement shall constitute a Loan Document.



12. Reaffirmation. Each of the Borrowers hereby confirms its respective guarantees,
pledges, grants of security interests and mortgages and other obligations, as applicable, under and
subject to the terms of each of the other Loan Documents to which it is party, and agrees that,
notwithstanding the effectiveness of this Agreement, such guarantees, pledges, grants of security
interests and mortgages and other obligations, and the terms of each of the other Loan Documents to
which it is a party, are not impaired or affected in any manner whatsoever and shall continue to be
in full force and effect after giving effect to this Agreement.



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IN WITNESS WHEREOF, the parties hereto have caused this Limited Waiver, Consent and Amendment No. 3
to Credit Agreement to be executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.



	 	 	 
	 

	 	REAL MEX RESTAURANTS, INC.
	 

	 	ACAPULCO RESTAURANTS, INC.
	 

	 	EL TORITO FRANCHISING COMPANY
	 

	 	EL TORITO RESTAURANTS, INC.
	 

	 	TARV, INC.
	 

	 	ACAPULCO RESTAURANT OF VENTURA, INC.
	 

	 	ACAPULCO RESTAURANT OF WESTWOOD, INC.
	 

	 	ACAPULCO MARK CORP.
	 

	 	MURRAY PACIFIC
	 

	 	ALA DESIGN, INC.
	 

	 	REAL MEX FOODS, INC.
	 

	 	ACAPULCO RESTAURANT OF DOWNEY, INC.
	 

	 	ACAPULCO RESTAURANT OF MORENO VALLEY, INC.
	 

	 	EL PASO CANTINA, INC.
	 

	 	CKR ACQUISITION CORP.
	 

	 	CHEVYS RESTAURANTS, LLC






	 	 	 	 	 
	 	 	 
	 	By:  	                 /s/ Steven L. Tanner
 	 
	 	 	Name:  	Steven L. Tanner 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



Signature Page to

Limited Waiver, Consent and Amendment No. 3 to Credit Agreement




 


 









 





IN WITNESS WHEREOF, the parties hereto have caused this Limited Waiver, Consent and Amendment No. 3
to Credit Agreement to be executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.



	 	 	 	 	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION, 

as Agent and sole Lender

 	 
	 	By:  	/s/ Thomas Moro
 	 
	 	 	Name:  	Thomas Moro 	 
	 	 	Title:  	Authorized Signatory 	 
	 



Signature Page to

Limited Waiver, Consent and Amendment No. 3 to Credit Agreement




 


 









 





ACKNOWLEDGMENT, CONSENT AND REAFFIRMATION




Parent hereby acknowledges the receipt of the above Limited Waiver, Consent and Amendment No. 3 to
Credit Agreement and consents to the terms and provision thereof, and hereby (i) confirms and
reaffirms all of its guarantees, pledges, grants of security interests and other obligations and
undertakings under the Parent Guaranty, the applicable Stock Pledge Agreement and each of the other
Loan Documents to which it is a party and (ii) acknowledges and agrees that subsequent to, and
after taking account of the provisions of the above Limited Waiver, Consent and Amendment No. 3 to
Credit Agreement, such guarantees, pledges, grants of security interests and other obligations and
undertakings and the terms of each such Loan Documents are not impaired or affected in any manner
whatsoever and shall continue to be in full force in accordance with the terms thereof.



Parent hereby represents and warrants that (a) it has full capacity and right to make and perform
this Acknowledgment, Consent and Reaffirmation, and all necessary authority has been obtained; (b)
this Acknowledgment, Consent and Reaffirmation constitutes its legal, valid and binding obligation
enforceable in accordance with its terms, except as enforcement may be limited by equitable
principles and by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
creditors’ rights generally; (c) the making and performance of this Acknowledgment, Consent and
Reaffirmation does not and will not violate the provisions of any applicable law, regulation or
order, and does not and will not result in the breach of, or constitute a default or require any
consent under, any material agreement, instrument, or document to which it is a party or by which
it or any of its property may be bound or affected; and (d) all consents, approvals, licenses and
authorizations of, and filings and registrations with, any governmental authority required under
applicable law and regulations for the making and performance of this Acknowledgment, Consent and
Reaffirmation have been obtained or made and are in full force and effect.



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Executed this 13 day of November , 2008.




	 	 	 	 	 
	 	RM RESTAURANT HOLDING CORP.

 	 
	 	By:  	/s/ Steven L. Tanner
 	 
	 	 	Name:  	Steven L. Tanner 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



Signature Page to

Acknowledgment, Consent and Reaffirmation