exv10w17





Exhibit 10.17


RM Restaurant Holding Corp.
Credit Agreement




 





CREDIT AGREEMENT




DATED AS OF JULY 7, 2009




By and Among




RM RESTAURANT HOLDING CORP.,

as Holdings




THE LENDERS PARTY HERETO FROM TIME TO TIME,

as Lenders,




AND




WILMINGTON TRUST FSB,

as Administrative Agent




 





$25,000,000 HOLDINGS TERM LOAN FACILITY




 






ii









 





RM Restaurant Holding Corp.
Credit Agreement





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	SECTION 1. DEFINITIONS	 	 	2	 
	1.1
	 	Certain Defined Terms	 	 	2	 
	1.2
	 	Defined Terms; Accounting Terms;
Utilization of GAAP for Purposes of Calculations Under Agreement	 	 	21	 
	SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND TERM LOANS	 	 	22	 
	2.1
	 	Term Loans	 	 	22	 
	2.2
	 	Interest on the Term Loans	 	 	22	 
	2.3
	 	Fees	 	 	23	 
	2.4
	 	Repayments and Prepayments; General Provisions Regarding Payments	 	 	23	 
	2.5
	 	[Intentionally Omitted]	 	 	27	 
	2.6
	 	[Intentionally Omitted]	 	 	27	 
	2.7
	 	Increased Costs; Taxes	 	 	27	 
	2.8
	 	Mitigation Obligations; Replacement of Lenders	 	 	30	 
	SECTION 3. CONDITIONS TO EFFECTIVENESS	 	 	30	 
	3.1
	 	Conditions to Effectiveness	 	 	30	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES	 	 	33	 
	4.1
	 	Organization, Powers, Qualification, Good Standing, Business and Subsidiaries	 	 	33	 
	4.2
	 	Authorization, etc.	 	 	34	 
	4.3
	 	Financial Condition	 	 	35	 
	4.4
	 	No Material Adverse Change	 	 	35	 
	4.5
	 	Title to Properties; Liens; Real Property; Intellectual Property	 	 	36	 
	4.6
	 	Litigation; Compliance with Law	 	 	36	 
	4.7
	 	Payment of Taxes	 	 	37	 
	4.8
	 	Performance of Agreements; Materially Adverse Agreements	 	 	37	 
	4.9
	 	Governmental Regulation	 	 	37	 
	4.10
	 	Securities Activities	 	 	37	 
	4.11
	 	ERISA	 	 	37	 
	4.12
	 	Certain Fees	 	 	38	 
	4.13
	 	Environmental Matters	 	 	38	 
	4.14
	 	Employee Matters	 	 	38	 
	4.15
	 	Solvency	 	 	39	 
	4.16
	 	[Intentionally Omitted]	 	 	39	 
	4.17
	 	Disclosure	 	 	39	 
	SECTION 5. AFFIRMATIVE COVENANTS	 	 	39	 
	5.1
	 	Financial Statements and Other Reports and Notices	 	 	39	 
	5.2
	 	Corporate Existence; Maintenance of Properties	 	 	41	 
	5.3
	 	Taxes	 	 	41	 
	5.4
	 	Insurance	 	 	42	 
	5.5
	 	Inspection	 	 	42	 
	5.6
	 	Compliance with Laws, Contracts, Licenses, and Permits	 	 	43	 
	5.7
	 	Environmental Laws	 	 	43	 
	5.8
	 	Employee Benefit Plans	 	 	45	 
	5.9
	 	Reporting	 	 	45	 
	5.10
	 	[Intentionally Omitted]	 	 	45	 
	5.11
	 	Further Assurances	 	 	45	 
	5.12
	 	Conduct of Business; Stores	 	 	46	 






i









 





RM Restaurant Holding Corp.
Credit Agreement



	 	 	 	 	 	 	 
	 	 	 	 		 
	5.13
	 	Existing Senior Secured Note Redemption	 	 	46	 
	SECTION 6. NEGATIVE COVENANTS	 	 	46	 
	6.1
	 	Indebtedness	 	 	46	 
	6.2
	 	Liens and Related Matters	 	 	48	 
	6.3
	 	Investments	 	 	50	 
	6.4
	 	Restricted Payments	 	 	51	 
	6.5
	 	Financial Covenants	 	 	52	 
	6.6
	 	Restriction on Fundamental Changes; Asset Sales	 	 	53	 
	6.7
	 	Sales and Lease-Backs	 	 	53	 
	6.8
	 	Employee Benefit Plans	 	 	54	 
	6.9
	 	Change in Fiscal Year	 	 	54	 
	6.10
	 	Transactions with Affiliates	 	 	54	 
	6.11
	 	Amendments or Waivers of Certain Agreements and Documents	 	 	55	 
	6.12
	 	Business of Holdings	 	 	55	 
	SECTION 7. EVENTS OF DEFAULT	 	 	56	 
	7.1
	 	Failure to Make Payments When Due	 	 	56	 
	7.2
	 	Default in Other Agreements	 	 	56	 
	7.3
	 	Breach of Certain Covenants	 	 	56	 
	7.4
	 	Breach of Representation or Warranty	 	 	56	 
	7.5
	 	Other Defaults Under Loan Documents	 	 	57	 
	7.6
	 	Involuntary Bankruptcy; Appointment
of Receiver, etc.	 	 	57	 
	7.7
	 	Voluntary Bankruptcy: Appointment
of Receiver, etc.	 	 	57	 
	7.8
	 	Judgments and Attachments	 	 	57	 
	7.9
	 	Dissolution	 	 	57	 
	7.10
	 	Employee Benefit Plans	 	 	58	 
	7.11
	 	Change of Control	 	 	58	 
	SECTION 8. ADMINISTRATIVE AGENT	 	 	58	 
	8.1
	 	Appointment	 	 	58	 
	8.2
	 	Rights as a Lender	 	 	59	 
	8.3
	 	Exculpatory Provisions	 	 	59	 
	8.4
	 	Reliance by the Administrative Agent	 	 	60	 
	8.5
	 	Delegation of Duties	 	 	60	 
	8.6
	 	Resignation of Administrative Agent	 	 	60	 
	8.7
	 	Non-Reliance on Agent and Other Lenders	 	 	61	 
	8.8
	 	Withholding	 	 	61	 
	SECTION 9. MISCELLANEOUS	 	 	61	 
	9.1
	 	Assignments and Participations in Term Loans	 	 	61	 
	9.2
	 	Expenses; Indemnity; Damage Waiver	 	 	64	 
	9.3
	 	Right of Set-Off	 	 	65	 
	9.4
	 	Sharing of Payments by Lenders	 	 	66	 
	9.5
	 	Amendments and Waivers	 	 	66	 
	9.6
	 	Independence of Covenants	 	 	67	 
	9.7
	 	Notices	 	 	68	 
	9.8
	 	Survival of Representations, Warranties and Agreements	 	 	68	 
	9.9
	 	Failure or Indulgence Not Waiver; Remedies Cumulative	 	 	69	 
	9.10
	 	Marshalling; Payments Set Aside	 	 	69	 
	9.11
	 	Severability	 	 	69	 
	9.12
	 	Obligations Several; Independent Nature of the Lenders’ Rights	 	 	69	 
	9.13
	 	Maximum Amount	 	 	69	 
	9.14
	 	Headings	 	 	70	 
	9.15
	 	Governing Law	 	 	70	 






ii









 





RM Restaurant Holding Corp.
Credit Agreement



	 	 	 	 	 	 	 
	 	 	 	 		 
	9.16
	 	Consent to Jurisdiction and Service of Process	 	 	70	 
	9.17
	 	Waiver of Jury Trial	 	 	71	 
	9.18
	 	Confidentiality	 	 	71	 
	9.19
	 	Counterparts; Integration; Effectiveness; Electronic Execution	 	 	72	 






iii









 






RM Restaurant Holding Corp.
Credit Agreement



EXHIBITS




	 	 	 
	I


	 	FORM OF ASSIGNMENT AGREEMENT

	II


	 	FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT

	III


	 	FORM OF TERM NOTE

	IV


	 	FORM OF FINANCIAL CONDITION CERTIFICATE

	V


	 	FORM OF OPINION OF COUNSEL TO HOLDINGS

	VI


	 	FORM OF COMPLIANCE CERTIFICATE







SCHEDULES




	 	 	 
	2.1A


	 	ASSUMED AMOUNTS

	3.1M


	 	CORPORATE STRUCTURE; CAPITAL STRUCTURE; OWNERSHIP

	3.1L


	 	LITIGATION

	4.1D


	 	CERTAIN REGISTRATION RIGHTS

	4.6


	 	COMPLIANCE WITH LAW

	4.11


	 	ERISA

	6.1


	 	CERTAIN EXISTING INDEBTEDNESS

	6.2


	 	CERTAIN EXISTING LIENS

	6.3


	 	CERTAIN EXISTING INVESTMENTS








iv













 







RM Restaurant Holding Corp.
Credit Agreement





CREDIT AGREEMENT




           This CREDIT AGREEMENT is dated as of July 7, 2009 and entered into by and among RM RESTAURANT
HOLDING CORP., a Delaware corporation (“Holdings”), THE BANKS, FINANCIAL INSTITUTIONS AND
OTHER ENTITIES PARTY HERETO FROM TIME TO TIME AS LENDERS and WILMINGTON TRUST FSB
(“WTFSB”), as administrative agent for the Lenders (and in such capacity and together with
its successors, the “Administrative Agent”).



           WHEREAS, Holdings and Opco entered into that certain Agreement and Plan of Merger (the
“Merger Agreement”) dated as of August 21, 2006 (the “Merger Date”), by and among
Holdings, Opco, RM Integrated, Inc., a wholly-owned subsidiary of Holdings (“Newco”), and
Bruckmann, Rosser, Sherrill & Co., Inc., as representative for the benefit of the Former Securities
Holders (as defined therein) (collectively, the “Sellers”) pursuant to which Newco merged
with and into Opco on the terms and subject to the conditions set forth in the Merger Agreement,
with Opco being the surviving corporation of the transactions contemplated therein and becoming a
wholly-owned subsidiary of Holdings (the “Merger”);



           WHEREAS, in connection with the Merger, (a) Holdings incurred the Bank of Montreal
Indebtedness to pay the Sellers in cash the consideration for the Merger pursuant to the terms of
the Merger Agreement (the “Merger Consideration”) and transaction fees and expenses and
(b) Opco entered into an amended and restated credit agreement (the “Amended and Restated
Credit Agreement”), dated as of October 5, 2006, among Opco, the lenders party thereto from
time to time and Credit Suisse, as administrative agent;



           WHEREAS, fees and expenses incurred in connection with the foregoing (the “Transaction
Costs”) were paid on or about the Merger Date (the transactions described in this paragraph,
together with the Merger and the execution, delivery and performance by Holdings of the Loan
Documents, are collectively referred to herein as the “Transactions”);



           WHEREAS, the lenders under the Amended and Restated Credit Agreement have agreed, severally
and not jointly, to amend and restate the Amended and Restated Credit Agreement and provide a
senior unsecured term loan facility to Opco in an aggregate amount not to exceed $25,000,000 as set
forth in the Second Amended and Restated Credit Agreement, dated as of the date hereof, among Opco,
the lenders party thereto from time to time and Credit Suisse, Cayman Islands Branch, as
administrative agent (the “Opco Credit Agreement”);



           WHEREAS, substantially concurrently with the execution and delivery hereof, Holdings, the
Lenders, Opco and the Administrative Agent will enter into an Assignment and Assumption Agreement,
pursuant to which, among other things, (i) the Lenders under the Amended and Restated Credit
Agreement will assign to the Lenders hereunder $25,000,000 in principal amount of term loans of
Opco outstanding under the Amended and Restated Credit Agreement (the “Assumed Term
Loans”), and (ii) Holdings will assume the obligations of Opco in respect of such Assumed Term
Loans;



           WHEREAS, pursuant to the Canpartners Exchange Agreement, Canpartners shall exchange an
aggregate principal amount of $15,000,000 of Term Loans under and as defined in the Amended and
Restated Credit Agreement for $4,583,000 in face amount of the Senior Secured Notes; and



           WHEREAS, the Lenders hereunder are willing to consent to the assumption by Holdings of the
obligations of Opco in respect of the Assumed Term Loans and release Opco from its obligations and
liabilities with respect to the Assumed Term Loans only upon execution and delivery by Holdings of
this



1









 





RM Restaurant Holding Corp.
Credit Agreement




Agreement, pursuant to which, among other things, the Assumed Term Loans shall become Term
Loans outstanding under, and subject to the terms and conditions of, this Agreement.



           NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:



SECTION 1.

DEFINITIONS





1.1     Certain Defined Terms.



           The following terms used in this Agreement shall have the following meanings:




           “2009 Indenture Effective Time” has the meaning assigned to such term in the Revolving
Credit Agreement.



           “2009 Transaction” means the termination of the Existing Senior Secured Note Documents
on or about the 2009 Indenture Effective Time and transactions consummated pursuant to
(i) Amendment No. 4 to the Revolving Credit Agreement, (ii) this Agreement and (iii) the Opco
Credit Documents and (iv) Senior Secured Note Documents.



           “Adjusted Debt” means, at any time, the sum of (a) all Consolidated Funded
Indebtedness plus (b) an amount equal to eight times Consolidated Rental Expense for the most
recently completed four consecutive fiscal quarters.



           “Adjusted Leverage Ratio” means the ratio as of the last day of any fiscal quarter of
Holdings of (a) Adjusted Debt at such date to (b) Consolidated EBITDAR for the period of four
consecutive fiscal quarters ending on such date.



           “Administrative Agent” has the meaning assigned to that term in the Preamble to this
Agreement.



           “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent, or such form as may be provided by the Lenders and acceptable
to the Administrative Agent, and delivered by Lenders.



           “Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, controls or is controlled by or is under common
control with the Person specified. For purposes of this definition, a Person shall be deemed to
“control” or be “controlled by” a Person if such Person possesses, directly or indirectly, power
either (a) to vote 10% or more of the securities having ordinary voting power for the election of
directors of such Person or (b) to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise.



           “Agreement” means this Credit Agreement dated as of July 7, 2009, as it may be
amended, restated, supplemented or otherwise modified from time to time.



           “Amended and Restated Credit Agreement” has the meaning assigned to that term in the
Recitals to this Agreement.



           “Applicable Laws” means, collectively, all statutes, laws, rules, regulations,
ordinances, decisions, writs, judgments, decrees, and injunctions of any Governmental Authority
affecting Holdings



2









 





RM Restaurant Holding Corp.
Credit Agreement




or any of the Subsidiaries or any of their respective assets, whether now or hereafter enacted
and in force, and all Governmental Authorizations relating thereto.



           “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



           “Asset Sale” means the sale, lease, sale and leaseback, assignment, conveyance,
transfer or other disposition by Holdings or any of the Subsidiaries to any Person (other than
Holdings or any of the Subsidiaries (other than an Excluded Foreign Subsidiary)) of any right or
interest in or to property of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible, including Capital Stock (including Capital Stock of Opco or any of Opco’s
subsidiaries), but excluding (a) sales or other dispositions of assets (other than Capital Stock of
Opco or any of Opco’s subsidiaries) in the ordinary course of business, (b) sales or dispositions
of assets by one Subsidiary to another Subsidiary and (c) sales or other dispositions of assets
(other than Capital Stock of any of Opco’s subsidiaries) having a value not in excess of $500,000
in a single transaction or series of related transactions.



           “Assignment Agreement” means an assignment and assumption agreement in substantially
the form of Exhibit I or in such other form as may be approved by the Administrative Agent.



           “Assignment and Assumption Agreement” means the assignment and assumption agreement,
in substantially the form of Exhibit II, pursuant to which Holdings shall assume an
aggregate principal amount of $25,000,000 of Opco’s Term Loans under and as defined in the Amended
and Restated Credit Agreement.



           “Assumed Term Loans” has the meaning assigned to that term in the Recitals to this
Agreement.



           “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as
now and hereafter in effect, or any successor statute.



           “Business Day” means a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to close.



           “Canpartners” means Canpartners Investments IV, LLC.



           “Capital Assets” means fixed assets, both tangible (such as land, buildings, fixtures,
machinery and equipment) and intangible (such as patents, copyrights, trademarks, franchises and
goodwill); provided that Capital Assets shall not include any item customarily
charged directly to expense or depreciated over a useful life of twelve (12) months or less in
accordance with GAAP.



           “Capital Expenditures” means, for any period, amounts paid or Indebtedness incurred by
Holdings or any Subsidiary in connection with (i) the purchase of lease by Holdings or any
Subsidiary of Capital Assets that would be required to be capitalized and shown on the balance
sheet of such Person in accordance with GAAP, (ii) Consolidated Restaurant Pre-Opening Costs, or
(iii) the lease of any assets by Holdings or any Subsidiary as lessee under any Synthetic Lease to
the extent such asset would have been Capital Assets had the Synthetic Lease been treated for
accounting purposes as a Capitalized Lease.



           “Capitalized Lease” means any lease under which Holdings or any of the Subsidiaries is
the lessee or obligor, the discounted future rental payment obligations under which are required to
be capitalized on the balance sheet of the lessee or obligor in accordance with GAAP.



3









 





RM Restaurant Holding Corp.
Credit Agreement


           “Capital Stock” means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation), including partnership interests and
membership interests, and any and all warrants, rights or options to purchase or other arrangements
or rights to acquire any of the foregoing.



           “Casa Gallardo Restaurants” means the restaurants doing business as Casa Gallardo
located in Fairview Heights, Missouri, St. Louis, Missouri, Bridgeton, Missouri and Westport,
Missouri.



           “Cash” means money, currency or a credit balance in a Deposit Account.



           “Cash Equivalents” means, as at any date of determination, (a) marketable securities
(i) issued or directly and unconditionally guaranteed as to interest and principal by the United
States Government or (ii) issued by any agency of the United States the obligations of which are
backed by the full faith and credit of the United States, in each case maturing within one year
after such date; (b) marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public instrumentality thereof, in
each case maturing within one year after such date and having, at the time of the acquisition
thereof, a rating of at least A 1 from S&P or at least P 1 from Moody’s; (c) commercial paper
maturing no more than one year from the date of creation thereof and having, at the time of the
acquisition thereof, a rating of at least A 1 from S&P or at least P 1 from Moody’s;
(d) certificates of deposit or bankers’ acceptances maturing within one year after such date and
issued or accepted by any Lender or by any commercial bank organized under the laws of the United
States of America or any state thereof or the District of Columbia that (i) is at least “adequately
capitalized” (as defined in the regulations of its primary Federal banking regulator) and (ii) has
Tier 1 capital (as defined in such regulations) of not less than $100,000,000; and (e) shares of
any money market mutual fund that (i) has substantially all of its assets invested continuously in
the types of investments referred to in clauses (a) and (b) above, (ii) has net assets of not less
than $500,000,000, and (iii) has the highest rating obtainable from either S&P or Moody’s.



           “Cash Proceeds” means, with respect to any Asset Sale, Cash payments (including any
Cash received by way of deferred payment pursuant to, or monetization of, a note receivable or
otherwise, but only as and when so received) received from such Asset Sale.



           “Change in Law” means the occurrence, after the Closing Date, of any of the following:
(a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any
law, rule, regulation or treaty or in the administration, interpretation or application thereof by
any Governmental Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.



           “Change of Control” means at any time, the occurrence of one or more of the following
events: (i) Holdings shall at any time fail to own, directly or indirectly, 100% of each class of
issued and outstanding Capital Stock of Opco that carries voting rights and/or economic interests
free and clear of all Liens other than Permitted Liens, (ii) the Permitted Holders shall at any
time fail to own, directly or indirectly, 50.1% of each class of issued and outstanding Capital
Stock of Holdings that carries voting rights and/or economic interests, (iii) the occurrence of any
“Change of Control” under (and as defined in) the Revolving Credit Documents, or (iv) the
occurrence of any “Change of Control” under (and as defined in) the Senior Secured Note Documents.



           “Closing Date” means July 7, 2009.



           “Cocina” means Cocina Funding Corp., LLC.



4









 





RM Restaurant Holding Corp.
Credit Agreement


           “Code” means the Internal Revenue Code of 1986, as amended from time to time, any
successor statute and the regulations promulgated and rulings issued thereunder.



           “Co-Investors” means H.I.G. Sun Partners, Inc., SCSF Cantinas and any of their Control
Investment Affiliates, and members of the management of Holdings, Opco and the Subsidiaries.



           “Compliance Certificate” has the meaning assigned to that term in subsection 5.1A(v).



           “Condemnation Proceeds” has the meaning assigned to that term in subsection
2.4B(iii)(d).



           “Confirmation Order” has the meaning assigned to that term in subsection 3.1C(ii).



           “Consolidated Cash Flow” has the meaning assigned to that term in the 2009 Indenture,
as in effect as of the 2009 Indenture Effective Time.



           “Consolidated EBITDA” means, for any period, the sum of (a) the Consolidated Pre-Tax
Income of Holdings and the Subsidiaries for such period, plus (b) to the extent not otherwise
included in the calculation of Consolidated Pre-Tax Income of Holdings and the Subsidiaries, income
of a Person in which Holdings holds a minority equity interest to the extent such income is
properly attributable to such minority interest held by Holdings and such income has been
distributed to Holdings in Cash in such period, plus (c) Consolidated Total Interest Expense for
such period, plus (d) to the extent deducted in the calculation of Consolidated Pre-Tax Income,
Consolidated Restaurant Pre-Opening Costs and depreciation and amortization expenses of Holdings
and the Subsidiaries for such period, plus (e) to the extent deducted in the calculation of
Consolidated Pre-Tax Income and actually paid in cash and without duplication, option payments
pursuant to the Merger Agreement in an aggregate amount not to exceed $6,000,000, plus (f) to the
extent deducted in the calculation of Consolidated Pre-Tax Income and without duplication, other
non-cash charges (including non-cash extraordinary losses) of Holdings and the Subsidiaries for
such period, plus (g) to the extent deducted in the calculation of Consolidated Pre-Tax Income and
without duplication, Transaction Costs in an aggregate amount not to exceed $8,000,000, plus (h)
payments to restricted stockholders of Holdings relating to the Merger in an aggregate amount not
to exceed $2,400,000, plus (i) any fees and expenses paid pursuant to the Management Services
Agreement, plus (j) non-recurring expenses incurred in connection with (x) certain class action
lawsuits set forth on Schedule 3.1L-1 hereto, (y) any litigation claims consolidated with
any of the litigation matters set forth on Schedule 3.1L-1 hereto and (z) any claims
alleged against Holdings and/or the Subsidiaries that are asserted which arise in whole or in part
from the conduct or alleged conduct of business or any other action allegedly taken or omitted to
be taken by Holdings or any of the Subsidiaries prior to the Merger Date and that assert
substantially the same or substantially similar legal theories as those relating to the litigation
described above (collectively, the “Existing Litigation”); provided that the amount of such
expenses which are added back pursuant to this clause (j) shall not exceed $8,500,000 in the
aggregate 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 Holdings and the Subsidiaries, (ii) severance payments paid to
employees of Holdings and the Subsidiaries, and (iii) fees and expenses incurred and paid by
Holdings and/or the Subsidiaries in connection with the closing of the transactions contemplated by
the limited waiver, consent and amendment to the Amended and Restated Credit Agreement, the limited
waiver, consent and amendment no. 3 to the Revolving Credit Agreement and the New Equity Documents,
each dated as of November 13, 2008, in each case incurred and paid on or before February 15, 2009,
in an amount not to exceed $2,600,000 in the aggregate for all costs, expenses, payments and fees
described in the above clauses (i), (ii) and (iii), plus (l) without duplication, a lump sum,
non-recurring cash payment in respect



5









 





RM Restaurant Holding Corp.
Credit Agreement




of Taxes for Fiscal Year 2008 on income arising from the cancellation of indebtedness arising
from the Exchange Agreement and the other transactions on November 13, 2008, plus (m) to the extent
deducted in the calculation of Consolidated Pre-Tax Income, and without duplication, fees and
expenses occurred and paid by Holdings and/or Opco in connection with the closing of the
transactions contemplated by Amendment No. 4 to the Revolving Credit Agreement, this Agreement, the
Opco Credit Documents and the Senior Secured Note Documents, in each case dated as of the Closing
Date and incurred and paid by Holdings and/or Opco on or before August 31, 2009, in an amount not
to exceed $8,500,000 minus (n) to the extent included in the calculation of Consolidated Pre-Tax
Income, extraordinary non-recurring gains, including without limitation, gains from asset
dispositions.



           “Consolidated EBITDAR” means, for any period, the sum of (a) the Consolidated EBITDA
of Holdings and the Subsidiaries for such period, plus (b) Consolidated Rental Expense for
such period.



           “Consolidated Funded Indebtedness” means, for any period, the sum of (a) the aggregate
amount of Indebtedness (including interest paid in kind) of Holdings and the Subsidiaries, on a
consolidated basis, relating to the borrowing of money or the obtaining of credit (but not
including the Maximum Drawing Amount (as defined in the Revolving Credit Agreement as of the
Closing Date) still available under letters of credit or trade credit obtained in the ordinary
course of business) or in respect of Capitalized Leases, other than any interest in respect thereof
(but not including Indebtedness consisting of deferred tax liability) minus (b) the amount of cash
maintained in the Excess Cash Flow Account plus (b) without duplication, all Indebtedness of the
type described in clause (a) above guaranteed by Holdings or any of the Subsidiaries.



           “Consolidated Net Income” means, for any period, the consolidated net income (or
deficit) of Holdings and the Subsidiaries, after deduction of all expenses, taxes, and other proper
charges, determined in accordance with GAAP.



           “Consolidated Pre-Tax Income” means, for any period, Consolidated Net Income for such
period, plus, to the extent deducted from the calculation of Consolidated Net Income, income tax
expenditures for such period, determined in accordance with GAAP.



           “Consolidated Total Interest Expense” means, for any period, the aggregate amount of
interest required to be paid or accrued by Holdings and the Subsidiaries during such period on all
Indebtedness of Holdings and the Subsidiaries outstanding during all or any part of such period,
whether such interest was or is required to be reflected as an item of expense or capitalized,
including payments consisting of interest in respect of Capitalized Leases or any Synthetic Lease
and including commitment fees, agency fees, facility fees, balance deficiency fees and similar fees
or expenses in connection with the borrowing of money.



           “Consolidated Rental Expense” means, for any period, all rental expense of Holdings
and the Subsidiaries during such period, determined on a consolidated basis in accordance with
generally accepted accounting principles, incurred under any rental agreements or leases of real or
personal property, including space leases and ground leases, other than obligations in respect of
any Capitalized Leases or any Synthetic Leases.



           “Consolidated Restaurant Pre-Opening Costs” means “Start-up costs” (such term used
herein as defined in SOP 98-5 published by the American Institute of Certified Public Accountants)
related to the opening and organizing or conversion of new Stores, such costs including, without
limitation, the cost of feasibility studies, staff-training, and recruiting and travel costs for
employees engaged in such start-up activities.



6









 





RM Restaurant Holding Corp.
Credit Agreement


           “Contingent Obligation” means, as applied to any Person, any direct or indirect
liability, contingent or otherwise, of that Person (a) with respect to any Indebtedness, lease,
dividend or other obligation of another Person if the primary purpose or intent thereof by the
Person incurring the Contingent Obligation is to provide assurance to the obligee of such
obligation of another Person that such obligation of another Person will be paid or discharged, or
that any agreements relating thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect thereof, (b) with respect to any
letter of credit issued for the account of that Person or as to which that Person is otherwise
liable for reimbursement of drawings, or (c) under Rate Protection Agreements or other Hedge
Agreements. Contingent Obligations shall include (a) the direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the obligation of another,
(b) the obligation to make take-or-pay or similar payments if required regardless of
non-performance by any other party or parties to an agreement, and (c) any liability of such Person
for the obligation of another Person through any agreement (contingent or otherwise) (i) to
purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide
funds for the payment or discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise) or (ii) to maintain the solvency or any
balance sheet item, level of income or financial condition of another Person if, in the case of any
agreement described under subclauses (i) or (ii) of this sentence, the primary purpose or intent
thereof is as described in the preceding sentence. The amount of any Contingent Obligation shall
be equal to the amount of the obligation so guaranteed or otherwise supported or, if less, the
amount to which such Contingent Obligation is specifically limited.



           “Control Investment Affiliate” means, as to any Person, any other Person that
(a) directly or indirectly, is in control of, is controlled by, or is under common control with,
such Person and (b) is organized by such Person or any Person controlling such Person primarily for
the purpose of making equity or debt investments in one or more companies. For purposes of this
definition “control” of a Person means the power to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise.



           “Default” means a condition or event that, after notice or after any applicable grace
period has lapsed, or both, would constitute an Event of Default.



           “Deposit Account” means a demand, time, savings, passbook or like account with a bank,
savings and loan association, credit union or like organization, other than an account evidenced by
a negotiable certificate of deposit.



           “Distribution” means (a) the declaration or payment of any dividend or other
distribution on or in respect of any Capital Stock of a Person, other than dividends or
distributions payable solely in Capital Stock of such Person of the same class; (b) the purchase,
redemption or other retirement of any Capital Stock of a Person, directly or through a Subsidiary
of such Person or otherwise; (c) the return of capital by a Person to the holders of its Capital
Stock as such; or (d) any other distribution on or in respect of any Capital Stock of a Person.



           “Dollars” and the sign “$” mean the lawful money of the United States of
America.



           “Domestic Subsidiary” means any Subsidiary incorporated, formed or organized under the
laws of any jurisdiction within the United States of America or any territory thereof.



           “Eligible Assignee” means (a) Lender, (b) an Affiliate of a Lender, (c) an Approved
Fund, and (d) any other Person (other than a natural person) approved by the Administrative Agent
(such approval not to be unreasonably withheld or delayed).



7









 





RM Restaurant Holding Corp.
Credit Agreement


           “Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3)
of ERISA which is or was sponsored, maintained or contributed to by, or required to be contributed
by, Holdings, any of the Subsidiaries or any of their respective ERISA Affiliates.



           “Engagement Letter” means that certain engagement letter, dated as of February 27,
2009, between Holdings and Capstone Consulting LLC, as the same may be amended, restated,
supplemented or otherwise modified from time to time.



           “Environmental Claim” means any investigation, notice, notice of violation, claim,
action, suit, proceeding, demand, abatement order or other order or directive (conditional or
otherwise), by any Governmental Authority or any other Person, arising (a) pursuant to or in
connection with any actual or alleged violation of any Environmental Law; (b) in connection with
any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (c) in connection
with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or
the environment.



           “Environmental Laws” means any and all applicable current or future foreign or
domestic, federal or state (or any subdivision of either of them), statutes, ordinances, orders,
rules, regulations, judgments, Governmental Authorizations, or any other requirements of
Governmental Authorities relating to (a) environmental matters, including those relating to any
Hazardous Materials Activity and the preservation and protection of the environment; (b) the
generation, use, storage, transportation or disposal of, or exposure to, Hazardous Materials; or
(c) occupational safety and health, industrial hygiene, land use or the protection of human, plant
or animal health or welfare, in any manner applicable to Holdings or any of the Subsidiaries or any
of the Facilities.



           “Equity Proceeds” means the cash proceeds (net of underwriting discounts and
commissions and other reasonable costs associated therewith) from the issuance of any Capital Stock
or other equity securities of, or the making of any capital contribution to, Holdings or Opco after
the Closing Date. For the avoidance of doubt, the issuance of any Capital Stock or other equity
securities of Holdings to Capstone Consulting LLC pursuant to the Engagement Letter, or any
subsequent capital contribution of the proceeds of such issuance from Holdings to Opco shall does
not give rise to any Equity Proceeds.



           “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and any successor statute.



           “ERISA Affiliate” means, as applied to any Person, (a) any corporation which is a
member of a controlled group of corporations within the meaning of Section 414(b) of the Code of
which that Person is a member; (b) any trade or business (whether or not incorporated) which is a
member of a group of trades or businesses under common control within the meaning of Section 414(c)
of the Code of which that Person is a member; and (c) any member of an affiliated service group
within the meaning of Section 414(m) or (o) of the Code of which that Person, any corporation
described in clause (a) above or any trade or business described in clause (b) above is a member.
Any former ERISA Affiliate of Holdings or any of the Subsidiaries shall continue to be considered
an ERISA Affiliate of Holdings or any such Subsidiary within the meaning of this definition with
respect to the period such entity was an ERISA Affiliate of Holdings or such Subsidiary and with
respect to liabilities arising after such period for which Holdings or such Subsidiary could be
liable under the Code or ERISA.



           “ERISA Event” means (a) a “reportable event” within the meaning of Section 4043 of
ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for
which the provision for 30-day notice to the PBGC has been waived by regulation); (b) the failure
to meet the minimum funding standard of Section 412 of the Code with respect to any Pension Plan
(whether or not waived in accordance with Section 412(d) of the Code) or the failure to make by its
due date a required



8









 





RM Restaurant Holding Corp.
Credit Agreement




installment under Section 412(m) of the Code with respect to any Pension Plan or the failure
to make any required contribution to a Multiemployer Plan; (c) the provision by the administrator
of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such
plan in a distress termination described in Section 4041(c) of ERISA; (d) the withdrawal by
Holdings, any of the Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan
with two or more contributing sponsors or the termination of any such Pension Plan resulting in
liability to Holdings, any of the Subsidiaries or any of their respective Affiliates pursuant to
Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition which might constitute grounds under
ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan;
(f) the imposition of liability on Holdings, any of the Subsidiaries or any of their respective
ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; (g) the withdrawal of Holdings, any of the Subsidiaries or any of their
respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections
4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefore,
or the receipt by Holdings, any of the Subsidiaries or any of their respective ERISA Affiliates of
notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section
4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041 A or
4042 of ERISA; (h) the occurrence of an act or omission which could reasonably be expected to give
rise to the imposition on Holdings, any of the Subsidiaries or any of their respective ERISA
Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Code or under
Section 409, Section 502(c), (i) or (1), or Section 4071 of ERISA in respect of any Employee
Benefit Plan; (i) the assertion of a material claim (other than routine claims for benefits)
against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against
Holdings, any of the Subsidiaries or any of their respective ERISA Affiliates in connection with
any Employee Benefit Plan; (j) receipt from the Internal Revenue Service of notice of the failure
of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section
401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust
forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the
Code; or (k) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Code or
pursuant to ERISA with respect to any Pension Plan.



           “Escrow Agreement” means that certain Escrow Agreement, dated as of August 21, 2006,
by and among J.P. Morgan Trust Company, National Association, as Escrow Agent thereunder, Opco,
Holdings and Sellers.



           “Event of Default” means each of the events set forth in Section 7 identified as such.



           “Excess Cash Flow” has the meaning assigned to such term in the Senior Secured Note
Indenture.



           “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time, and any successor statute.



           “Exchange Agreement” means the Exchange Agreement, dated as of November 13, 2008, by
and among Cocina, KKR, Canpartners, SCSF Cantinas and Opco.



           “Exchange Fee Agreement” means the letter agreement, dated as of November 13, 2008, by
and among Cocina, KKR, Canpartners, SCSF Cantinas and Opco.



           “Excluded Foreign Subsidiary” means, at any time, a Foreign Subsidiary that is (or is
treated as) for United States federal income tax purposes either (a) a corporation or (b) a
pass-through entity owned directly or indirectly by another Foreign Subsidiary that is (or is
treated as) a corporation.



9









 





RM Restaurant Holding Corp.
Credit Agreement


           “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, or any
other recipient of any payment to be made by or on account of any obligation of Holdings hereunder,
(a) taxes imposed on or measured by its overall net income (however denominated), and franchise
taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable Lender Office is located,
(b) any branch profits taxes imposed by the United States of America or any similar tax imposed by
any other jurisdiction in which Holdings is located and (c) in the case of a Foreign Lender (other
than an assignee pursuant to a request by Holdings under subsection 2.8B), any U.S. withholding tax
that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party hereto (or designates a new Lender Office) or is attributable to such Foreign Lender’s
failure or inability (other than as a result of a Change in Law) to comply with subsection 2.7E(v),
except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time
of designation of a new Lender Office (or assignment), to receive additional amounts from Holdings
with respect to such withholding tax pursuant to subsection 2.7E(i).



           “Existing Note Opco Intercreditor Agreement” means the Intercreditor Agreement dated
as of the Closing Date, by and among Wells Fargo Bank, National Association, as Trustee under the
Existing Senior Secured Note Indenture, Holdings, Opco, the lenders party thereto and Credit
Suisse, Cayman Islands Branch, as subordinated agent, as amended, restated or otherwise modified
from time to time.



           “Existing Senior Secured Note Documents” means (a) the Existing Senior Secured Note
Indenture, (b) the Existing Senior Secured Note Intercreditor Agreement and (c) the Existing Note
Opco Intercreditor Agreement.



           “Existing Senior Secured Note Indenture” means the indenture, dated as of March 31,
2004, among Opco, the guarantors party thereto and Wells Fargo Bank, N.A., pursuant to which up to
$105,000,000 original principal amount of Existing Senior Secured Notes were issued by Opco, as
amended or supplemented in accordance with the terms hereof and in effect from time to time, and
each of the notes, security documents and other documents delivered pursuant thereto.



           “Existing Senior Secured Note Intercreditor Agreement” means the Intercreditor
Agreement dated as of March 31, 2004 by and among Wells Fargo Bank, N.A., as Collateral Agent and
Trustee and General Electric Capital Corporation, as successor to Fleet National Bank, as amended,
restated or otherwise modified from time to time.



           “Existing Senior Secured Notes” means Indebtedness of Opco in an aggregate principal
amount not to exceed $105,000,000 evidenced by senior secured notes due 2010 issued pursuant to the
Senior Secured Note Documents and that is expressly subject to the provisions of the Existing
Intercreditor Agreement.



           “Facilities” means any and all real property (including all buildings, fixtures or
other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by
Holdings or any of the Subsidiaries (but only as to portions thereof actually owned, leased,
operated or used) or any of their respective predecessors or any of their respective Affiliates
that are directly or indirectly controlled by Holdings.



           “Fee Letter” means that certain fee letter, dated as of July 7, 2009, among Holdings
and WTFSB.



           “Fiscal Quarter” means each period ending on the last Sunday of March, June, September
and December.



10









 





RM Restaurant Holding Corp.
Credit Agreement


           “Fiscal Year” means the fiscal year of Holdings and the Subsidiaries ending on the
last Sunday in December of each calendar year.



           “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which Holdings is resident for tax purposes. For purposes of this definition,
the United States of America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.



           “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.



           “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.



           “Funding and Payment Office” means the office of the Administrative Agent located at
1100 North Market Street, Rodney Square North, Wilmington, DE 19890 3 (or such office of the
Administrative Agent or any successor Administrative Agent specified by the Administrative Agent or
such successor Administrative Agent in a notice to Holdings and the Lenders).



           “GAAP” means, subject to the limitations on the application thereof set forth in
subsection 1.2, generally accepted accounting principles, as in effect in the United States on the
date of determination, consistently applied.



           “Governmental Authority” means the government of the United States of America or any
other nation, or of any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the European Union or the
European Central Bank).



           “Governmental Authorization” means any permit, license, authorization, plan,
directive, consent order or consent decree of or from any Governmental Authority.



           “Granting Lender” has the meaning assigned to that term in subsection 9.1G.



           “Guaranteed Pension Plan” means any employee pension benefit plan within the meaning
of Section 3(2) of ERISA maintained or contributed to by Holdings, any Subsidiary or any ERISA
Affiliate the benefits of which are guaranteed on termination in full or in part by the PBGC
pursuant to Title IV of ERISA, other than a Multiemployer Plan.



           “Hazardous Materials” means any chemical, material or substance, the generation, use,
storage, transportation or disposal of which, or the exposure to which, is prohibited, limited or
regulated by any Governmental Authority or which may or could pose a hazard to the health and
safety of the owners, occupants or any Persons in the vicinity of any Facility or to the indoor or
outdoor environment.



           “Hazardous Materials Activity” means any past, current, proposed or threatened
activity, event or occurrence involving any Hazardous Materials, including the use, manufacture,
possession, storage, holding, presence, existence, location, Release, threatened Release,
discharge, placement, generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any
corrective action or response action with respect to any of the foregoing.



11









 





RM Restaurant Holding Corp.
Credit Agreement


           “Hedge Agreements” means all Rate Protection Agreements and all other swaps, caps or
collar agreements or similar arrangements entered into by Holdings or any of the Subsidiaries
providing for protection against fluctuations in currency exchange rates either generally or under
specific contingencies.



           “Holdings” has the meaning assigned to that term in the Preamble to this Agreement.



           “Indebtedness” means, as applied to any Person, without duplication, (a) all
obligations of such Person for borrowed money, (b) that portion of obligations of such Person with
respect to Capital Leases that is properly classified as a liability on a balance sheet in
conformity with GAAP, (c) notes payable and drafts accepted representing extensions of credit to
such Person whether or not representing obligations for borrowed money (other than current accounts
payable incurred in the ordinary course of business and accrued expenses incurred in the ordinary
course of business), (d) any obligation owed by such Person for all or any part of the deferred
purchase price of property or services (excluding any such obligations incurred under ERISA and
current trade payables incurred in the ordinary course of business), (e) all obligations of such
Person evidenced by notes, bonds (other than performance bonds), debentures or other similar
instruments, (f) all indebtedness of such Person created or arising under any conditional sale or
other title retention agreement with respect to any property or assets acquired by such Person
(even though the rights and remedies of the seller or the lender under such agreement in the event
of default are limited to repossession or sale of such property or assets), (g) all reimbursement
obligations of such Person, contingent or otherwise, as an account party under any letter of credit
or under acceptance, letter of credit or similar facilities to the extent not reflected as trade
liabilities on the balance sheet of such Person in accordance with GAAP, (h) all obligations of
such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value
any Capital Stock prior to the Term Loan Maturity Date, (i) all obligations of such Person under
Rate Protection Agreements and other Hedge Agreements, including, as of any date of determination,
the net amounts, if any, that would be required to be paid by such Person if such Hedge Agreements
were terminated on such date, (j) all Contingent Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through (i) above or in respect of the payment
of dividends on the Capital Stock of any other Person, and (k) all indebtedness secured by any Lien
on any property or asset owned or held by such Person regardless of whether the indebtedness
secured thereby shall have been assumed by such Person or is nonrecourse to the credit of such
Person; provided, however, that the obligation of such Person to pay current year insurance
premiums in an amount not to exceed $3,500,000 shall be excluded from Indebtedness.



           “Indemnified Taxes” means Taxes other than Excluded Taxes.



           “Indemnitee” has the meaning assigned to that term in subsection 9.2B.



           “Insurance Proceeds” has the meaning assigned to that term in subsection 2.4B(iii)(d).



           “Intellectual Property” has the meaning assigned to that term in subsection 4.5C.



           “Intercreditor Agreement” means that certain subordination and intercreditor
agreement, dated as of the date hereof, among General Electric Capital Corporation, as
administrative agent under the Revolving Credit Documents, the Administrative Agent, Cocina, KKR
Financial CLO 2005-2, Ltd., Canpartners and Holdings.



           “Interest Coverage Ratio” means the ratio as of the last day of any fiscal quarter of
Holdings of (a) Consolidated EBITDA for the period of four consecutive fiscal quarters ending on
such date to (b) Consolidated Total Interest Expense for the period of four consecutive fiscal
quarters ending on such date.



12









 





RM Restaurant Holding Corp.
Credit Agreement


           “Interest Payment Date” means the last Business Day of each of March, June, September
and December of each year.



           “Investment” means (a) any direct or indirect purchase or other acquisition by
Holdings or any of the Subsidiaries of, or of a beneficial interest in, Capital Stock or other
Securities of any other Person, or (b) any direct or indirect loan, advance (other than advances to
employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures
in the ordinary course of business) or capital contribution by Holdings or any of the Subsidiaries
to any other Person, including any Indebtedness and accounts receivable acquired from that other
Person that are not current assets or did not arise from sales to that other Person in the ordinary
course of business; provided, however, that the term “Investment” shall not include
(i) current trade and customer accounts receivable for goods furnished or services rendered in the
ordinary course of business and payable in accordance with customary trade terms, (ii) advances and
prepayments to suppliers for goods and services in the ordinary course of business, (iii) Capital
Stock or other Securities acquired in connection with the satisfaction or enforcement of
Indebtedness or claims due or owing to Holdings or any of the Subsidiaries or as security for any
such Indebtedness or claims, (iv) Cash held in Deposit Accounts with banks, savings and loans,
trust companies and the Lenders and (v) shares in a mutual fund that invests solely in Cash
Equivalents. The amount of any Investment shall be the original cost of such Investment plus the
cost of all additions thereto minus all cash dividends or distributions received in respect
thereof, without any adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment. Without limitation of the foregoing, “Investments”
shall include the incurring by any Person of Contingent Obligations in respect of the obligations
of any other Person.



           “KKR” means, collectively, KKR Financial CLO 2007-1, Ltd., KKR Strategic Capital
Overseas Fund, Ltd., KKR Strategic Capital Fund, L.P., KKR Strategic Capital Institutional Fund,
Ltd., and KKR Strategic Capital Holdings I, L.P.



           “Leasehold Property” means any leasehold interest of Holdings or any Subsidiary as
lessee under any lease of real property.



           “Lender” and “Lenders” means the Persons identified as “Lenders” and listed on
the signature pages of this Agreement, together with their successors and permitted assigns
pursuant to subsection 9.1.



           “Lender Office” means, as to any Lender, the office or offices of such Lender
specified in the Administrative Questionnaire completed by such Lender and delivered to the
Administrative Agent, or such other office or offices as such Lender may from time to time notify
Holdings and the Administrative Agent.



           “Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of
(a) Consolidated Funded Indebtedness on the last day of such Fiscal Quarter to (b) Consolidated
EBITDA for the four Fiscal Quarter period then ending.



           “Lien” means any lien, mortgage, pledge, assignment, security interest, fixed or
floating charge or encumbrance of any kind (including any conditional sale or other title retention
agreement, any lease in the nature thereof, and any agreement to give any security interest) and
any option, trust or deposit or other preferential arrangement having the practical effect of any
of the foregoing.



           “Litigation Escrow” means the $6,000,000 escrow fund established in connection with
the Existing Litigation pursuant to the Escrow Agreement.



13









 





RM Restaurant Holding Corp.
Credit Agreement


           “Loan Documents” means this Agreement, any Term Notes and any other documents
evidencing Obligations.



           “Management Services Agreements” means, collectively, the management service
agreements or consulting services agreements entered into by and among Holdings, Opco or the
Subsidiaries with the prior written consent of the Requisite Lenders (not to be unreasonably
withheld or delayed) and each in form and substance reasonably satisfactory to the Requisite
Lenders.



           “Margin Stock” has the meaning assigned to that term in Regulation U of the Board of
Governors of the Federal Reserve System as in effect from time to time.



           “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations, properties, condition (financial or otherwise) or prospects of Holdings and the
Subsidiaries, taken as a whole, (b) the ability of Holdings to perform any of the Obligations,
(c) the legality, validity, binding effect or enforceability of any Loan Document or (d) the
rights, remedies and benefits available to, or conferred upon, the Lenders or the Administrative
Agent under any Loan Document.



           “Maximum Amount” has the meaning assigned to that term in subsection 9.13.



           “Merger” has the meaning assigned to that term in the Recitals to this Agreement.



           “Merger Agreement” has the meaning assigned to that term in the Recitals to this
Agreement.



           “Merger Consideration” has the meaning assigned to that term in the Recitals to this
Agreement.



           “Merger Documents” means, collectively, the Merger Agreement and all schedules,
exhibits, annexes and amendments thereto and all side letters and agreements affecting the terms
thereof.



           “Moody’s” means Moody’s Investor Services, Inc. or any successor thereto.



           “Multiemplover Plan” means a Plan which is a “multiemployer plan” as defined in
Section 3(37) of ERISA.



           “Net Cash Proceeds” means, with respect to any Asset Sale, Cash Proceeds of such Asset
Sale net of bona fide direct costs of sale, including (a) income taxes reasonably estimated to be
actually payable as a result of such Asset Sale (after taking into account any available tax
credits or deductions and any tax sharing arrangements reasonably estimated to be applicable in the
relevant tax year), (b) transfer, sales, use and other taxes payable in connection with such Asset
Sale, (c) payment of the outstanding principal amount of, premium or penalty, if any, and interest
on any Indebtedness (other than the Term Loans, any such Indebtedness assumed by the purchaser of
the relevant assets and any Indebtedness under the Senior Secured Note Documents, the Revolving
Credit Documents or the Opco Credit Documents) that is secured by a Lien on the stock or assets in
question and that is required to be repaid under the terms thereof as a result of such Asset Sale,
(d) brokers’ and financial advisors’ commissions and reasonable fees and expenses of counsel and
other advisors in connection with such Asset Sale and (e) reasonable reserves against indemnities
or other obligations (so long as such indemnity or other obligations are outstanding) in respect of
post-closing and purchase price adjustments (including adjustments related to the performance or
results of any divested or acquired business) in connection with such Asset Sale; provided that, to
the extent and at the time any such amounts are released from such reserves, such amounts shall
constitute Net Cash Proceeds.



14









 





RM Restaurant Holding Corp.
Credit Agreement


           “New Equity Documents” means, collectively, (a) the Stockholder Rights Agreement, (b)
the Exchange Agreement, and (c) the Release and Satisfaction.



           “Non-Consenting Lender” has the meaning assigned to that term in subsection 9.5B.



           “Obligations” means all obligations of every nature of Holdings from time to time owed
to the Administrative Agent, the Lenders or any of them or their respective Affiliates under the
Loan Documents or Hedge Agreements (with any Lender or an Affiliate of a Lender), whether for
principal, interest, reimbursement or payments for early termination of Rate Protection Agreements
(with any Lender or an Affiliate of a Lender), fees, expenses, indemnification or otherwise.



           “Officer’s Certificate” means, with respect to any Person, a certificate executed on
behalf of such Person (a) if such Person is a partnership or limited liability company, by its
chairman of the board (if an officer), chief executive officer or chief financial officer or by the
chief executive officer or chief financial officer of its general partner or managing member or
other Person authorized to do so by its Organizational Documents, (b) if such Person is a
corporation, on behalf of such corporation by its chairman of the board (if an officer), chief
executive officer, chief financial officer or vice president, and (c) if such person is Holdings or
any of the Subsidiaries, a Responsible Officer.



           “Opco” means Real Mex Restaurants, Inc., a Delaware corporation.



           “Opco Credit Agreement” means the Second Amended and Restated Credit Agreement dated
as of July 7, 2009 among Holdings, Opco, Credit Suisse, Cayman Islands Branch, as administrative
agent, the lenders signatory thereto from time to time, as amended, amended and restated,
supplemented or otherwise modified in accordance with the terms hereof from time to time.



           “Opco Credit Documents” means the Opco Credit Agreement and each of the notes and
other documents delivered pursuant thereto.



           “Opco Intercreditor Agreement” means the Intercreditor Agreement dated as of the
Closing Date by and among Wells Fargo Bank, National Association, as Trustee under the Senior
Secured Note Indenture, Holdings, Opco, the lenders party thereto and Credit Suisse, Cayman Islands
Branch, as subordinated agent, as amended, restated or otherwise modified from time to time.



           “Opco Term Loan” means the indebtedness incurred by Opco pursuant to the Opco Credit
Agreement.



           “Organizational Authorizations” means, with respect to any Person, resolutions of its
Board of Directors, general partners or members of such Person, and such other Persons, groups or
committees (including managers and managing committees), if any, required by the Organizational
Certificate or Organizational Documents of such Person to authorize or approve the taking of any
action or the entering into of any transaction.



           “Organizational Certificate” means, with respect to any Person, the certificate or
articles of incorporation, partnership or limited liability company or any other similar or
equivalent organizational, charter or constitutional certificate or document filed with the
applicable Governmental Authority in the jurisdiction of its incorporation, organization or
formation, which, if such Person is a partnership or limited liability company, shall include such
certificates, articles or other certificates or documents in respect of each partner or member of
such Person.



15









 





RM Restaurant Holding Corp.
Credit Agreement


           “Organizational Documents” means, with respect to any Person, the by-laws, partnership
agreement, limited liability company agreement, operating agreement, management agreement or other
similar or equivalent organizational, charter or constitutional agreement or arrangement, which, if
such Person is a partnership or limited liability company, shall include such by-laws, agreements
or arrangements in respect of each partner or member of such Person.



           “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or any
other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect
to, this Agreement or any other Loan Document.



           “Participant” has the meaning assigned to that term in subsection 9.1D.



           “PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle
A of Title IV of ERISA (or any successor thereto).



           “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which
is subject to Section 412 of the Code or Section 302 of ERISA.



           “Permitted Holders” means, collectively, (a) Cocina, KKR, Canpartners and Capstone
Consulting LLC, and (b) the Co-Investors; and (c) any Related Parties of (i) Cocina, KKR,
Canpartners or Capstone Consulting LLC or (ii) the Co-Investors.



           “Permitted Refinancing Indebtedness” means Indebtedness issued or incurred (including
by means of the extension or renewal of existing Indebtedness) to refinance, refund, extend, renew
or replace existing Indebtedness (“Refinanced Indebtedness”); provided that
(a) the principal amount of such refinancing, refunding, extending, renewing or replacing
Indebtedness is not greater than the principal amount of such Refinanced Indebtedness plus the
amount of any premiums or penalties and accrued and unpaid interest paid thereon and reasonable
fees and expenses, in each case, associated with such refinancing, refunding, extension, renewal or
replacement, (b) such refinancing, refunding, extending, renewing or replacing Indebtedness has a
final maturity that is no sooner than, scheduled principal payments or permanent commitment
reductions no earlier than, and a weighted average life to maturity that is no shorter than, such
Refinanced Indebtedness, (c) if such Refinanced Indebtedness or any guaranties thereof are
subordinated to the Obligations, such refinancing, refunding, extending, renewing or replacing
Indebtedness and any guaranties thereof remain so subordinated on terms no less favorable to the
Lenders, (d) the obligors in respect of such Refinanced Indebtedness immediately prior to such
refinancing, refunding, extending, renewing or replacing are the only obligors on such refinancing,
refunding extending, renewing or replacing Indebtedness and (e) such refinancing, refunding,
extending, renewing or replacing Indebtedness contains covenants and events of default and is
benefited by guaranties, if any, which, taken as a whole, are determined in good faith by a
Responsible Officer of Holdings to be no less favorable to Holdings or its applicable Subsidiary
and the Lenders in any material respect than the covenants and events of default or guaranties, if
any, in respect of such Refinanced Indebtedness.



           “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



           “PIK Amount” has the meaning assigned to that term in subsection 2.2C.



           “Principal Office” means, for the Administrative Agent, such Person’s “Principal
Office” as such Person may from time to time designate in writing to Holdings and the Lenders.



16









 





RM Restaurant Holding Corp.
Credit Agreement


           “Pro Forma Basis” means, with respect to compliance with any test or covenant
hereunder, compliance with such test or covenant after giving effect to any proposed acquisition,
distribution or other action which requires compliance on a pro forma basis (taking into account
only those pro forma adjustments arising out of events which are directly attributable to a
specific transaction, are factually supportable and are expected to have a continuing impact, in
each case either (a) determined on a basis consistent with Article 11 of Regulation S-X of the
Securities Act and as interpreted by the staff of the Securities and Exchange Commission or
(b) determined on a basis acceptable to the Administrative Agent, in each case, which pro forma
adjustments shall be certified by the chief financial officer of Holdings as having been prepared
in good faith on such basis and based upon reasonable assumptions), using, for purposes of
determining such compliance, the historical financial statements of all entities or assets so
acquired or to be acquired and the consolidated financial statements of Holdings and the
Subsidiaries which shall be reformulated (i) as if such acquisition, distribution or other action,
and any other acquisitions which have been consummated during the period, and any Indebtedness or
other liabilities incurred in connection with any such acquisition, distribution or other action,
had been consummated at the beginning of such period (and assuming that such Indebtedness bears
interest during any portion of the applicable measurement period prior to the relevant acquisition
at the weighted average of the interest rates applicable to outstanding Term Loans during such
period or such other interest rate acceptable to the Administrative Agent), and (ii) otherwise in
conformity with such procedures as may be agreed upon between the Administrative Agent and
Holdings, all such calculations to be in form and substance reasonably satisfactory to the
Administrative Agent.



           “Pro Rata Share” means with respect to all payments, computations and other matters
relating to the Term Loans of any Lender, the percentage obtained by dividing (i) the Term
Loan Exposure of that Lender by (ii) the aggregate Term Loan Exposure of all the Lenders,
as the applicable percentage may be adjusted by assignments in accordance with subsection 9.1. The
initial Pro Rata Share of each Lender is set forth opposite the name of that Lender on Schedule
2.1A.



           “Rate Protection Agreement” means any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement or other similar agreement or arrangement designed to
protect Holdings or any of the Subsidiaries against fluctuations in interest rates.



           “Real Property Asset” means, at any time of determination, any interest (fee,
leasehold or otherwise) then owned by Holdings or any Subsidiary (other than an Excluded Foreign
Subsidiary) in any real property.



           “Recovery Event” has the meaning assigned to that term in subsection 2.4B(iii)(d).
“Register” has the meaning assigned to that term in subsection 9.1C.



           “Reinvestment Assets” means, in the case of any Reinvestment Event, any Capital Assets
which are used in the business of Holdings and the Subsidiaries.



           “Reinvestment Deferred Amount” means, with respect to any Reinvestment Event, the
aggregate Insurance Proceeds or Condemnation Proceeds, as the case may be, received by Holdings or
any of the Subsidiaries in connection therewith which are not applied to prepay the Term Loans in
accordance with subsection 2.4B(iii)(d) as a result of the delivery of a Reinvestment Notice.



           “Reinvestment Event” means any Recovery Event in respect of which Holdings has
delivered a Reinvestment Notice.



           “Reinvestment Notice” means a written notice executed by a Responsible Officer stating
that no Default or Event of Default has occurred and is continuing and that Holdings (directly or
through one of



17









 





RM Restaurant Holding Corp.
Credit Agreement




the Subsidiaries) intends and expects to use all or a specified portion of the Insurance
Proceeds or Condemnation Proceeds, as the case may be, of a Recovery Event to acquire Reinvestment
Assets within three hundred sixty (360) days of the receipt of such Insurance Proceeds or
Condemnation Proceeds, as the case may be.



           “Reinvestment Prepayment Amount” means, with respect to any Reinvestment Event, the
Reinvestment Deferred Amount, if any, relating thereto less any amount expended prior to the
relevant Reinvestment Prepayment Date to acquire Reinvestment Assets.



           “Reinvestment Prepayment Date” means, with respect to any Reinvestment Event, the
earlier of (a) the date occurring three hundred sixty (360) days after such Reinvestment Event and
(b) the date on which Holdings shall have determined not to, or shall have otherwise ceased to,
acquire Reinvestment Assets with all or any portion of the relevant Reinvestment Deferred Amount.



           “Related Parties” means, with respect to any Person, such Person’s Affiliates and the
members, partners, directors, officers, employees, agents, trustees and advisors of such Person and
of such Person’s Affiliates.



           “Release” means any release, spill, emission, leaking, pumping, pouring, injection,
escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous
Material into the indoor or outdoor environment (including the abandonment or disposal of any
barrels, containers or other closed receptacles containing any Hazardous Material), including the
movement of any Hazardous Material through the air, soil, surface water or groundwater.



           “Release and Satisfaction” means the Release and Satisfaction of Credit Agreement,
dated as of November 8, 2008, by and among Credit Suisse, Cayman Islands Branch, Cocina, KKR,
Canpartners, SCSF Cantinas and Holdings.



           “Required Percentage” means 50%.



           “Requisite Lenders” means Lenders having or holding more than 50% of the sum of the
aggregate Term Loan Exposure of all Lenders.



           “Responsible Officer” means (i), in the case of Holdings, the chief executive officer,
president, executive vice president, senior vice president, vice president, treasurer, general
counsel or chief financial officer of Holdings, and, (ii) in the case of a Subsidiary, the chief
executive officer, president, executive vice president, senior vice president, treasurer, general
counsel or chief financial officer of the applicable Subsidiary, but in any event, with respect to
financial matters, the chief financial officer, treasurer or controller of Holdings or the
applicable Subsidiary.



           “Restricted Payment” means, in relation to Holdings, Opco or any of the Subsidiaries,
(a) any Distribution or (b) redemption of, payment in respect of, or purchase of the Senior Secured
Notes.



           “Revolving Credit Agreement” means the Second Amended and Restated Credit Agreement
dated as of January 29, 2007, among Opco, as borrower, the other credit parties signatory thereto,
General Electric Capital Corporation, as administrative agent, the lenders signatory thereto from
time to time, as amended, amended and restated, supplemented or otherwise modified in accordance
with the terms hereof from time to time.



18









 





RM Restaurant Holding Corp.
Credit Agreement


           “Revolving Credit Documents” means (a) the Revolving Credit Agreement and each of the
notes, security documents and other documents delivered pursuant thereto, and (b) the Intercreditor
Agreement.



           “S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill
Corporation, or any successor thereto.



           “Sale-Leaseback” has the meaning assigned to that term in subsection 6.7.



           “SCSF Cantinas” means SCSF Cantinas, LLC.



           “Securities” means any stock, shares, partnership interests, voting trust
certificates, certificates of interest or participation in any profit-sharing agreement or
arrangement, options, warrants, bonds, debentures, notes, or other evidences of Indebtedness,
secured or unsecured, convertible, subordinated or otherwise, or in general any instruments
commonly known as “securities” or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.



           “Securities Act” means the Securities Act of 1933, as amended from time to time, and
any successor statute.



           “SEC” means the U.S. Securities and Exchange Commission.



           “Sellers” shall have the meaning assigned to such term in the Recitals to this
Agreement.



           “Senior Secured Note Documents” means (a) the Senior Secured Note Indenture, (b) the
Senior Secured Note Intercreditor Agreement and (c) the Opco Intercreditor Agreement.



           “Senior Secured Note Indenture” means the indenture, dated as of July 7, 2009, among
Opco and Wells Fargo Bank Minnesota, National Association, pursuant to which up to $130,000,000
original principal amount of Senior Secured Notes have been issued by Opco, as amended or
supplemented in accordance with the terms hereof and in effect from time to time, and each of the
notes, guarantees, security documents and other documents delivered pursuant thereto.



           “Senior Secured Note Intercreditor Agreement” means the Intercreditor Agreement dated
as of the Closing Date by and among Wells Fargo Bank, National Association, as Collateral Agent and
Trustee and General Electric Capital Corporation, as amended, restated or otherwise modified from
time to time.



           “Senior Secured Notes” means Indebtedness of Opco in an aggregate principal amount not
to exceed $130,000,000 evidenced by senior secured notes due 2013 issued pursuant to the Senior
Secured Note Documents and that is expressly subject to the provisions of the Senior Secured Note
Intercreditor Agreement.



           “Solvent” means, with respect to any Person, that as of the date of determination both
(a) (i) the then fair saleable value of the property of such Person is (A) greater than the total
amount of liabilities (including contingent liabilities but excluding amounts payable under
intercompany promissory notes) of such Person and (B) not less than the amount that will be
required to pay the probable liabilities on such Person’s then existing debts as they become
absolute and matured considering all financing alternatives and potential asset sales reasonably
available to such Person; (ii) such Person’s capital is not unreasonably small in relation to its
business or any contemplated or undertaken transaction; and (iii) such Person does not intend to
incur, or believe that it will incur, debts beyond its ability to pay such



19









 





RM Restaurant Holding Corp.
Credit Agreement




debts as they become due; and (b) such Person is “solvent” within the meaning given that term
and similar terms under applicable laws relating to fraudulent transfers and conveyances. For
purposes of this definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or matured liability.



           “SPV” has the meaning assigned to that term in subsection 9.1G.



           “Stockholder Rights Agreement” means the Stockholder Rights Agreement, dated as of
November 13, 2008, as amended from time to time, by and among Cocina, KKR, Canpartners, SCSF
Cantinas and Holdings.



           “Store” means a particular restaurant at a particular location that is owned or
operated by Opco or a subsidiary of Opco.



           “subsidiary” means, with respect to any Person, any corporation, limited liability
company, partnership, association, joint venture or other business entity of which more than 50% of
the total voting power of shares of Capital Stock or other ownership interests entitled (without
regard to the occurrence of any contingency) to vote in the election of the Person or Persons
(whether directors, managers, members, partners, trustees or other Persons performing similar
functions) having the power to direct or cause the direction of the management and policies thereof
is at the time owned or controlled, directly or indirectly, by that Person or one or more of the
other subsidiaries of that Person or a combination thereof.



           “Subsidiary” shall mean any subsidiary of Holdings other than an Excluded Foreign
Subsidiary; provided that, when used in the context of Opco and the Subsidiaries,
“Subsidiary” shall mean any Subsidiary of Opco.



           “Synthetic Lease” every obligation of any Person under any lease treated as an
operating lease under GAAP and as a loan or financing for U.S. income tax.



           “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.



           “Term Loan Exposure” means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the Term Loans of that Lender.



           “Term Loan Maturity Date” means the earlier of (a) January 1, 2014 and (b) the date
that all Term Loans shall become due and payable in full hereunder, whether by acceleration or
otherwise.



           “Term Loans” means the Term Loans outstanding or made by the Lenders pursuant to
subsection 2.1A.



           “Term Notes” means (a) the promissory notes of Holdings issued pursuant to subsection
2.1 D and (b) any promissory notes issued by Holdings in connection with assignments of the Term
Loans of any Lender, in each case substantially in the form of Exhibit III, as they may be
amended, restated, supplemented or otherwise modified from time to time in accordance with this
Agreement.



           “Transaction Costs” has the meaning set forth in the Recitals to this Agreement.



20









 





RM Restaurant Holding Corp.
Credit Agreement


           “Transaction Documents” means, collectively, (a) the Amended and Restated Credit
Agreement and any other documents entered into in connection therewith; (b) the Merger Documents;
and (c) all other documents, instruments and agreements entered into or delivered by Opco and/or
any of the Subsidiaries in connection with the Transactions.



           “Transactions” has the meaning set forth in the Recitals to this Agreement.



           “Treasury Rate” means, as of any prepayment date, the yield to maturity as of such
prepayment date of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519) that has become publicly
available at least two business days prior to the prepayment date (or if such Statistical Release
is no longer published, any publicly available source of similar market data)) most nearly equal to
the period from the prepayment date to the Term Loan Maturity Date.



           “Ventura Property” means that certain real property owned by El Torito Restaurants,
Inc. and located at 770 Seaward Avenue, Ventura, California 93001.



           “WTFSB” has the meaning set forth in the Recitals to this Agreement.




1.2      Defined Terms; Accounting Terms; Utilization of GAAP for Purposes of Calculations Under
Agreement.



           A.     The definitions of terms herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include”, “includes” and “including”, and words
of similar import, shall not be limiting and shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same meaning and effect as the word
“shall”. Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such Person’s successors and
assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof,
(d) all references herein to subsections, Exhibits and Schedules shall be construed to refer to
subsections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, whether real, personal or mixed, including cash,
Securities, accounts and contract rights.



           B.     Except as otherwise expressly provided in this Agreement, all accounting terms not
otherwise defined herein shall have the meanings assigned to them in conformity with GAAP.
Financial and accounting calculations in connection with the definitions, covenants and other
provisions of this Agreement shall utilize accounting principles and policies in conformity with
those used to prepare the most recently delivered financial statements referred to in subsection
5.1A(i); provided, that if Holdings notifies the Administrative Agent after the
Closing Date that it wishes to amend any covenant in subsection 6.5 or any related definition to
eliminate the effect of any change in GAAP occurring after the Closing Date on the operation of
such covenant (or if the Administrative Agent notifies Holdings that the Requisite Lenders wish to
amend subsection 6.5 or any related definition for such purpose), then Holdings’ compliance with
such covenant shall be determined on the basis of GAAP in effect immediately before the relevant
change in GAAP became effective, until either such notice is withdrawn or such covenant is amended
in a manner satisfactory to Holdings and the Requisite Lenders.



21









 





RM Restaurant Holding Corp.
Credit Agreement


SECTION 2.

AMOUNTS AND TERMS OF COMMITMENTS AND TERM LOANS





2.1      Term Loans.



           A.     Term Loans. Subject to the terms and conditions herein, each Lender that executes
and delivers a signature page to this Agreement will be deemed on the Closing Date to have agreed
to all of the terms of this Agreement, and to have consented to the assumption by Holdings of the
Assumed Term Loans as further described in the Assignment and Assumption Agreement and such term
loans shall be deemed to be Term Loans hereunder made to Holdings by the Lenders on the Closing
Date. The outstanding amount of each Lender’s Term Loan on the Closing Date is set forth opposite
its name on Schedule 2.1A.



           B.     [Intentionally Omitted]



           C.     [Intentionally Omitted]



           D.     Term Notes. Holdings shall execute and deliver on the Closing Date to each Lender
requesting the same a reasonable time in advance of the Closing Date a Term Note to evidence that
Lender’s Term Loans in the principal amount of that Lender’s Term Loans and with other appropriate
insertions, and each Lender’s Term Note shall evidence such Lender’s Pro Rata Share of such
respective amounts. Any Lender not receiving a Term Note may request at any time that Holdings
issue it such a Term Note on the terms set forth herein, and Holdings agrees to issue such Term
Note promptly upon the request of a Lender. The Term Notes and the Obligations evidenced thereby
shall be governed by, subject to and benefit from all of the terms and conditions of this Agreement
and the other Loan Documents.




2.2      Interest on the Term Loans.



           A.     Rate of Interest. Subject to the provisions of Section 2.7, each Term Loan shall
bear interest on the unpaid principal amount thereof from the date made to maturity (whether by
acceleration or otherwise) at a fixed rate equal to 20% per annum.



           B.     [Intentionally Omitted]



           C.     Interest Payments. Subject to the provisions of subsection 2.2E, on each Interest
Payment Date, all interest accrued on the unpaid principal amount of the Term Loan since the
immediately preceding Interest Payment Date (such amount, the “PIK Amount”) shall be paid
on such Interest Payment Date, upon any prepayment of that Term Loan (to the extent accrued on the
amount being prepaid) and at maturity (including final maturity by acceleration or otherwise), by
the addition of such PIK Amount to the outstanding principal amount of the Term Loan and thereafter
the outstanding principal amount of the Term Loan shall be deemed to include such PIK Amount.



           D.     [Intentionally Omitted]



           E.     Post-Default Interest. Any overdue amounts on any Term Loans and, to the extent
permitted by applicable law, any interest payments thereon not paid when due and any fees and other
amounts then due and payable hereunder, shall thereafter bear interest (including post-petition
interest in any proceeding under the Bankruptcy Code, or other applicable bankruptcy or insolvency
laws) payable upon demand at a rate that is 2% per annum in excess of the interest rate otherwise
payable under this Agreement with respect to the applicable Term Loans. Payment or acceptance of
the increased rates of



22









 





RM Restaurant Holding Corp.
Credit Agreement




interest as provided for in this subsection 2.2E is not a permitted alternative to timely
payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit
any rights or remedies of the Administrative Agent or any Lender.



           F.     Computation of Interest. Interest on Term Loans shall be computed on the basis of
a 360-day year and for the actual number of days elapsed in the period during which it accrues. In
computing interest on any Loan, the Closing Date shall be included, and the date of payment of such
Term Loan shall be excluded.




2.3      Fees.



           A.     Annual Administrative Fee. Holdings agrees to pay to the Administrative Agent, for
its own account, administrative fees and expenses in such amounts that are set forth in the Fee
Letter or hereafter may be mutually agreed upon from time to time.



           B.     Other Agent Fees. Holdings agrees to pay such other fees to the Administrative
Agent, for its own account, as may have been or hereafter may be mutually agreed upon from time to
time.




2.4      Repayments and Prepayments; General Provisions Regarding Payments.



           A.     Scheduled Maturity of Term Loans.



         On the Term Loan Maturity Date Holdings shall pay all amounts owing by Holdings under
this Agreement with respect to the Term Loans including, without limitation, all PIK
Amounts.



           B.     Prepayments.




        (i)     Voluntary Prepayments. Subject to the terms of the Intercreditor
Agreement, Holdings may, upon not less than one (1) Business Day’s prior written or
telephonic notice, promptly confirmed in writing to the Administrative Agent (which notice
the Administrative Agent will promptly notify each Lender), at any time and from time to
time voluntarily prepay the Term Loans on any Business Day in whole or in part in an
aggregate minimum amount of $1,000,000 and integral multiples of $1,000,000 in excess of
that amount. Notice of prepayment having been given as aforesaid, the Term Loans shall
become due and payable on the prepayment date specified in such notice and in the aggregate
principal amount specified therein. Any voluntary prepayments pursuant to this subsection
2.4B(i) shall be applied as specified in subsection 2.4C.




        (ii)     [Intentionally Omitted]




        (iii)     Mandatory Prepayments. Subject to the terms of the Intercreditor
Agreement, the Term Loans shall be prepaid in the manner provided in subsection 2.4C upon
the occurrence of the following circumstances:




	 	(a)	 	Prepayments from Asset Sales. No later
than the fifth (5th) Business Day following the date of
receipt by Holdings or any of the Subsidiaries of Cash Proceeds of any
Asset Sale, Holdings shall, to the extent that (x) it or any of the
Subsidiaries is not required to offer such Net Cash Proceeds to redeem
or otherwise prepay the Senior Secured Notes or the Opco Term Loans (or
following such offer, to apply such Net Cash Proceeds to





23









 





RM Restaurant Holding Corp.
Credit Agreement



	 	 	 	so redeem or otherwise prepay the Senior Secured Notes or the Opco
Term Loan) and (y) the Distribution of such Cash Proceeds to Holdings
is permitted pursuant to the terms of the Opco Credit Agreement, the
Revolving Credit Documents and the Senior Secured Documents, prepay
the Term Loans (and associated accrued interest and prepayment fees,
if any) as provided in subsection 2.4C in an amount equal to the Net
Cash Proceeds received; provided that so long as no
Default or Event of Default shall have occurred and be continuing,
Holdings shall have the option, directly or through one or more of
the Subsidiaries, to invest such Net Cash Proceeds, within three
hundred sixty (360) days of receipt thereof, in long-term productive
assets of the general type used in the business of Holdings and the
Subsidiaries and, to the extent not so invested, shall apply such
amounts as provided in subsection 2.4C; provided
further, that none of Holdings or any of the Subsidiaries
shall have such right to invest Net Cash Proceeds that (x) are
arising from an Asset Sale of an asset of Holdings or (y) are
distributed to Holdings in compliance with the Revolving Credit
Agreement, the Opco Credit Agreement and the Senior Secured Note
Documents.







	 	(b)	 	Prepayments Due to Issuance of Debt.
No later than the fifth (5th) Business Day following the
date of receipt by (i) Holdings of any proceeds of any Indebtedness
incurred by Holdings (other than any Indebtedness permitted by
subsection 6.1), and (ii) Opco or any of the Subsidiaries of any
proceeds of any Indebtedness incurred by Opco or any of the
Subsidiaries (other than any Indebtedness permitted by subsection 6.1),
to the extent (x) Opco or any of the Subsidiaries is not required to
apply such proceeds to prepay obligations under the Opco Credit
Agreement and (y) the Distribution of such proceeds to Holdings is
permitted pursuant to the terms of the Opco Credit Agreement, the
Revolving Credit Documents and the Senior Secured Documents, Holdings
shall prepay the Term Loans (and associated accrued interest and
prepayment fees, if any) as provided in subsection 2.4C in an amount
equal to the amount of such proceeds; provided that
payment or acceptance of the amounts provided for in this subsection
2.4B(iii)(b) shall not constitute a waiver of any Event of Default
resulting from the incurrence of such Indebtedness or otherwise
prejudice any rights or remedies of the Administrative Agent or any
Lender.

	 
	 	(c)	 	Prepayments Due to Issuance of Equity
Securities. No later than the fifth (5th) Business Day following
the date of receipt by Holdings or any of the Subsidiaries of any
Equity Proceeds (other than (i) Equity Proceeds received in connection
with an issuance of Capital Stock to one or more of the Permitted
Holders, (ii) equity issued to any officer, employee or director of
Holdings or any of the Subsidiaries or (iii) Equity Proceeds received
by Holdings (x) which are contributed by Holdings to Opco to be used by
Opco for general corporate purposes or (y) to be used by Holdings for
repayment of Indebtedness of Holdings otherwise permitted hereunder),
Holdings shall, to the extent (I) it or any of the Subsidiaries is not
required to apply such net proceeds to prepay obligations under the
Opco Credit Agreement (II) the Distribution of such Equity Proceeds to
Holdings is permitted pursuant to the terms of the Opco Credit





24









 





RM Restaurant Holding Corp.
Credit Agreement



	 	 	 	Agreement, the Revolving Credit Documents and the Senior Secured
Documents, prepay the Term Loans (and associated accrued interest and
prepayment fees, if any) as provided in subsection 2.4C in an
aggregate amount equal to 100% of such Equity Proceeds.







	 	(d)	 	Prepayments Due to Insurance and
Condemnation Proceeds. No later than the third (3rd)
Business Day following the date of receipt by Holdings or any of the
Subsidiaries of any cash payments in excess of $500,000 under any
insurance policy as a result of any damage to or loss of all or any
portion any tangible asset (net of actual and documented reasonable
costs incurred by Holdings or any of the Subsidiaries in connection
with adjustment and settlement thereof, “Insurance Proceeds”)
or any proceeds resulting from the taking of assets by the power of
eminent domain, condemnation or otherwise (net of actual and documented
reasonable costs incurred by Holdings or any of the Subsidiaries in
connection with adjustment and settlement thereof, “Condemnation
Proceeds”) (any such event resulting in the recovery of Insurance
Proceeds or Condemnation Proceeds, a “Recovery Event”),
Holdings shall, to the extent (x) it or any of the Subsidiaries is not
required to apply such net proceeds to prepay obligations under the
Opco Credit Agreement and (y) the Distribution of such cash payments to
Holdings is permitted pursuant to the terms of the Opco Credit
Agreement, the Revolving Credit Documents and the Senior Secured
Documents, prepay the Term Loans in an amount equal to the Insurance
Proceeds or Condemnation Proceeds, as the case may be, received (less
any payment of the outstanding principal amount of, premium or penalty,
if any, and interest on any Indebtedness (other than the Term Loans)
that is secured by a Lien on the stock or assets in question and that
is required to be repaid under the terms thereof as a result of such
event). Concurrently with any prepayment of Term Loans pursuant to
this subsection 2.4B(iii)(d), Holdings shall deliver to the
Administrative Agent an Officer’s Certificate demonstrating in detail
reasonably satisfactory to the Administrative Agent the derivation of
the Insurance Proceeds or Condemnation Proceeds, as the case may be, of
the correlative Recovery Event; provided that if Holdings shall have
delivered a Reinvestment Notice to the Administrative Agent no later
than three (3) Business Days after the receipt of such Insurance
Proceeds or Condemnation Proceeds and no Default or Event of Default
exists at the time of such consummation or delivery of such notice,
Holdings shall not be required to make any prepayment with the proceeds
of such Recovery Event to the extent that all or any portion of such
proceeds are reinvested in Reinvestment Assets within three hundred
sixty (360) days from the date of receipt of such proceeds. In
addition, in the event that Holdings shall, at any time after receipt
of proceeds of any Reinvestment Event requiring a prepayment pursuant
to this subsection 2.4B(iii)(d), determine that the prepayments
previously made in respect of such Reinvestment Event were in an
aggregate amount less than that required by the terms of this
subsection 2.4B(iii)(d), Holdings shall promptly cause to be made an
additional prepayment of the Term Loans in an amount equal to the
amount of any such deficit, and Holdings shall concurrently therewith
deliver to the Administrative Agent an Officer’s





25









 





RM Restaurant Holding Corp.
Credit Agreement



	 	 	 	Certificate demonstrating the derivation of the additional proceeds
resulting in such deficit. Notwithstanding the foregoing, none of
Holdings or any of the Subsidiaries shall have the right to reinvest
Insurance Proceeds that have been distributed to Holdings in
compliance with the Revolving Credit Agreement, the Opco Loan
Agreement and the Senior Secured Note Documents.







	 	(e)	 	Prepayments from Excess Cash Flow. In
the event that there shall be Excess Cash Flow for any Fiscal Year
(commencing with the Fiscal Year ending December 31, 2009), Holdings
shall, to the extent (i) such prepayment in respect of such Excess Cash
Flow is not required to be made to the holders of the Senior Secured
Notes under the terms of the Senior Secured Note Documents or the OpCo
Credit Agreement or such Excess Cash Flow is not required to be
escrowed under the terms of the Senior Secured Note Documents or the
Revolving Credit Agreement and (ii) the Distribution of such Excess
Cash Flow to Holdings is permitted pursuant to the terms of the Opco
Credit Agreement, the Revolving Credit Documents and the Senior Secured
Documents, no later than ninety-five (95) days after the end of such
Fiscal Year, prepay the Term Loans in an aggregate amount equal to the
Required Percentage of such Excess Cash Flow for such Fiscal Year.






           C.     Application of Prepayments. Holdings shall deliver to the Administrative Agent, no
later than the date that is fifteen (15) Business Days prior to any prepayment required by
subclauses (a), (b), (c), (d) or (e) of subsection 2.4B(iii) (unless delivery by such date is not
practicable, in which case Holdings shall deliver the same as soon as practicable), a certificate
of a Responsible Officer setting forth (a) in reasonable detail the calculation of the amount of
such prepayment and (b) the anticipated prepayment date therefor (which information the
Administrative Agent shall promptly provide to the Lenders). Any amount required to be applied as
a prepayment of Term Loans pursuant to subclauses (a), (b), (c), (d) or (e) of subsection 2.4B(iii)
shall be applied to prepay the Term Loans (and shall be applied to prepay the Term Loans on a
ratable basis); provided that any Lender may elect, by notice to the Administrative
Agent by telephone (confirmed by facsimile) at least five (5) Business Days prior to the applicable
prepayment date, to decline all or any portion of any prepayment of its Term Loans pursuant to
subclauses (a), (b), (c), (d) or (e) of subsection 2.4B(iii), in which case the aggregate amount of
the prepayment that would have been applied to prepay such Term Loans but was so declined will be
contributed to Opco as permitted by the terms of this Agreement. Any voluntary prepayments
pursuant to subsection 2.4B(i) and any amount required to be applied as a prepayment of Term Loans
pursuant to subsection 2.4B(iii) shall be applied to prepay the Term Loans of the Lenders in
accordance with the Lenders Pro Rata Shares. Each such prepayment shall be made subject to the
requirements of subsection 2.6D.



           D.     General Provisions Regarding Payments.




        (i)     Manner and Time of Payment. All payments by Holdings of principal,
interest, fees, expenses and other Obligations hereunder and under the Term Notes shall be
made in same day funds and without defense, setoff or counterclaim, free of any restriction
or condition, and delivered to the Administrative Agent not later than 1:00 p.m. (New York
time) on the date due at the Funding and Payment Office for the account of the Lenders;
funds received by the Administrative Agent after that time on such due date shall, at the
Administrative Agent’s discretion, be deemed to have been paid by Holdings on the next
succeeding Business Day. Holdings hereby authorizes the Administrative Agent to charge its
accounts with the



26









 





RM Restaurant Holding Corp.
Credit Agreement




Administrative Agent in order to cause timely payment to be made to the Administrative
Agent of all principal, interest, fees, expenses and other Obligations due hereunder
(subject to sufficient funds being available in its accounts for that purpose).




        (ii)     Application of Payments to Principal, Interest and Prepayment Fees.
Except as provided in subsection 2.2C, all payments in respect of the principal amount of
any Term Loan shall include payment of accrued interest, if any and so long as such interest
has not been deemed a PIK Amount, on the principal amount being repaid or prepaid, and all
such payments (and in any event any payments made in respect of any Term Loan on a date when
interest is due and payable with respect to such Loan) shall be applied to the payment of
interest, prepayment fees, if any, before application to principal.




        (iii)     Apportionment of Payments. The aggregate principal, prepayments fees, if
any, and interest payments shall be apportioned among all outstanding Term Loans to which
such payments relate, in each case proportionately to the Lenders’ respective Pro Rata
Shares. The Administrative Agent shall promptly distribute to each Lender, at its
applicable Lender Office, its Pro Rata Share of all such payments received by the
Administrative Agent.




        (iv)     Payments on Business Days. Except if expressly provided otherwise,
whenever any payment to be made hereunder shall be stated to be due on a day that is not a
Business Day, such payment shall be made on the immediately preceding Business Day.




        (v)     Notation of Payment. Each Lender agrees that before disposing of any Term
Note held by it, or any part thereof (other than by granting participations therein), that
Lender will make a notation thereon of all Term Loans evidenced by that Term Note and all
principal payments previously made thereon and of the date to which interest thereon has
been paid; provided that the failure to make (or any error in the making of)
a notation of any Term Loan made under such Note shall not limit or otherwise affect such
disposition or the obligations of Holdings hereunder or under such Term Note with respect to
any Term Loan or any payments of principal or interest on such Term Note.




2.5     [Intentionally Omitted]




2.6     [Intentionally Omitted]




2.7     Increased Costs; Taxes.



           A.     Increased Costs Generally. If any Change in Law shall: (i) impose, modify or deem
applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit extended by, any Lender; (ii)
subject any Lender to any tax of any kind whatsoever with respect to this Agreement, or change the
basis of taxation of payments to such Lender in respect thereof (except for Indemnified Taxes or
Other Taxes covered by subsection 2.7E and changes in the rate of any Excluded Tax payable by such
Lender); or (iii) impose on any Lender any other condition, cost or expense affecting this
Agreement; and the result of any of the foregoing shall be to reduce the amount of any sum received
or receivable by such Lender hereunder (whether of principal, interest or any other amount), then
upon request of such Lender Holdings will pay to such Lender such additional amount or amounts as
will compensate such Lender for such additional costs incurred or reduction suffered.



27









 





RM Restaurant Holding Corp.
Credit Agreement


           B.     Capital Requirements. If any Lender determines that any Change in Law affecting
such Lender or the applicable Lender Office of such Lender or such Lender’s holding company, if
any, regarding capital requirements has or would have the effect of reducing the rate of return on
such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence
of this Agreement or the Term Loans made by, such Lender, to a level below that which such Lender
or such Lender’s holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s policies and the policies of such Lender’s holding company with respect
to capital adequacy), then from time to time Holdings will pay to such Lender such additional
amount or amounts as will compensate such Lender or such Lender’s holding company for any such
reduction suffered.



           C.     Certificates for Reimbursement. A certificate of a Lender setting forth the amount
or amounts necessary to compensate such Lender or its holding company, as the case may be, as
specified in subsection 2.7A or 2.7B and delivered to Holdings shall be conclusive absent manifest
error. Holdings shall pay such Lender, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.



           D.     Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to this subsection shall not constitute a waiver of such Lender’s right to
demand such compensation; provided that Holdings shall not be required to
compensate a Lender pursuant to this subsection for any increased costs incurred or reductions
suffered more than nine months prior to the date that such Lender, as the case may be, notifies
Holdings of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to
such increased costs or reductions is retroactive, then the nine-month period referred to above
shall be extended to include the period of retroactive effect thereof).



           E.     Taxes.




         (i)      Payments Free of Taxes. Any and all payments by or on account of any
obligation of Holdings hereunder or any other Loan Document shall be made free and clear of
and without reduction or withholding for any Indemnified Taxes or Other Taxes;
provided that if Holdings shall be required by applicable law to deduct any
Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this subsection) the Administrative
Agent or Lender, as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made, (ii) Holdings shall make such deductions and
(iii) Holdings shall timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.




         (ii)     Payment of Other Taxes by Holdings. Without limiting the provisions of
paragraph (i) above, Holdings shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.




         (iii)     Indemnification by Holdings. Holdings shall indemnify the Administrative
Agent and each Lender within 10 days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent or such Lender, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to Holdings by an Agent or a Lender (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.



28









 





RM Restaurant Holding Corp.
Credit Agreement



     (iv)     Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by Holdings to a Governmental Authority, Holdings shall
deliver to the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return reporting such
payment or other evidence of such payment reasonably satisfactory to the Administrative
Agent.




     (v)     Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which Holdings is
a resident for tax purposes, or any treaty to which such jurisdiction is a party, with
respect to payments hereunder or under any other Loan Document shall deliver to Holdings
(with a copy to the Administrative Agent), at the time or times prescribed by applicable law
or reasonably requested by Holdings or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable law as will permit such payments to be made
without withholding or at a reduced rate of withholding. In addition, any Lender, if
requested by Holdings or the Administrative Agent, shall deliver such other documentation
prescribed by applicable law or reasonably requested by Holdings or the Administrative Agent
as will enable Holdings or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements. Without limiting
the generality of the foregoing, in the event that Holdings is a resident for tax purposes
in the United States of America, any Foreign Lender shall deliver to Holdings and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or
prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and
from time to time thereafter upon the request of Holdings or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the following is
applicable: (i) duly completed copies of Internal Revenue Service Form W-8BEN, claiming
eligibility for benefits of an income tax treaty to which the United States of America is a
party, (ii) duly completed copies of Internal Revenue Service Form W-8ECI, (iii) in the case
of a Foreign Lender claiming the benefits of the exemption for portfolio interest under
section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not
(A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent
shareholder” of Holdings within the meaning of section 881(c)(3)(B) of the Code, or (C) a
“controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) duly
completed copies of Internal Revenue Service Form W-8BEN or (iv) any other form prescribed
by applicable law as a basis for claiming exemption from or a reduction in United States
Federal withholding tax duly completed together with such supplementary documentation as may
be prescribed by applicable law to permit Holdings to determine the withholding or deduction
required to be made.




     (vi)     Treatment of Certain Refunds. If the Administrative Agent or a Lender
determines, in its sole discretion, that it has received a refund of (or the benefit of a
tax credit in lieu of such refund attributable to) any Taxes or Other Taxes as to which it
has been indemnified by Holdings or with respect to which Holdings has paid additional
amounts pursuant to such subsection 2.7, it shall pay to Holdings an amount equal to such
refund or credit (but only to the extent of indemnity payments made, or additional amounts
paid, by Holdings under such subsection 2.7 with respect to the Taxes or Other Taxes giving
rise to such refund or credit), net of all out-of-pocket expenses of the Administrative
Agent or such Lender, as the case may be, and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund or credit);
provided that Holdings, upon the request of the Administrative Agent or such
Lender, agrees to repay the amount paid over to Holdings (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the Administrative Agent or
such Lender in the event the Administrative Agent or such Lender is required to repay such
refund or credit to such Governmental Authority. This paragraph shall not be construed to



29









 





RM Restaurant Holding Corp.
Credit Agreement




require any Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to Holdings or any other
Person.




2.8      Mitigation Obligations; Replacement of Lenders.



           A.     Designation of a Different Lender Office. If any Lender requests compensation
under subsection 2.7A or 2.7B, or requires Holdings to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to subsection 2.7E, then such
Lender shall use reasonable efforts to designate a different Lender Office for making, issuing,
funding or maintaining its Term Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such Lender such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to subsection 2.7
in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. Holdings hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.



           B.     Replacement of Lenders. If any Lender requests compensation under subsection 2.7A
or 2.7B, or if Holdings is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to subsection 2.7E, then Holdings may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, subsection 9.1), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such
obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment);
provided that (i) Holdings shall have paid to the Administrative Agent the
assignment fee specified in subsection 9.1B(iv), if applicable, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Term Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under subsection 2.6D) from such Eligible Assignee (to the
extent of such outstanding principal and accrued interest and fees) or Holdings (in the case of all
other amounts), (iii) in the case of any such assignment resulting from a claim for compensation
under subsection 2.7A or 2.7B or payments required to be made pursuant to subsection 2.7E, such
assignment will result in a reduction in such compensation or payments thereafter, and (iv) such
assignment does not conflict with applicable law. A Lender shall not be required to make any such
assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise,
the circumstances entitling Holdings to require such assignment and delegation cease to apply.
Each Lender agrees that if Holdings exercises its option under this paragraph, it shall promptly
execute and deliver all agreements and documentation necessary to effectuate such assignment as set
forth in subsection 9.1. Holdings shall be entitled (but not obligated) to execute and deliver
such agreements and documentation on behalf of each such applicable Lender and any such agreements
and/or documentation so executed by Holdings shall be effective for all purposes of documenting an
assignment pursuant to subsection 9.1.



SECTION 3.

CONDITIONS TO EFFECTIVENESS





3.1     Conditions to Effectiveness.



The effectiveness of this Agreement is subject to the satisfaction, prior to or concurrently with
the Closing Date, of the following conditions precedent:



30









 





RM Restaurant Holding Corp.
Credit Agreement


           A.     Holdings Documents. On or before the Closing Date, Holdings shall deliver or cause
to be delivered to the Administrative Agent and the Requisite Lenders the following, each, unless
otherwise noted, dated the Closing Date:




         (i)     a certified copy of its Certificate of Incorporation, together with a good standing
certificate from the Secretary of State of the State of Delaware, each state in which any of
its Real Property Assets are located, and each other state where it is qualified as a
foreign corporation to do business, each dated a recent date prior to the Closing Date;




         (ii)     a copy of its Bylaws, certified as of the Closing Date by its corporate secretary
or an assistant secretary;




         (iii)     resolutions of its Board of Directors approving and authorizing the execution,
delivery and performance of this Agreement and the other Loan Documents to which it is a
party or by which it or its assets may be bound that are to be delivered on the Closing
Date, certified as of the Closing Date by its corporate secretary or an assistant secretary
as being in full force and effect without modification or amendment;




         (iv)     incumbency certificates of its officers executing this Agreement and the other
Loan Documents to which it is a party as of the Closing Date;




         (v)     executed originals of this Agreement and the other Loan Documents to which it is a
party that are to be delivered on the Closing Date; and




         (vi)     such other documents as the Administrative Agent may reasonably request.



           B.     Lender Signatures.



           The following Persons shall have executed and delivered this Agreement:




         (i)     the Lenders; and




         (ii)     the Administrative Agent.



           C.     Necessary Consents. Holdings shall have obtained all approvals and consents of
Governmental Authorities and other Persons necessary in connection with the transactions
contemplated herein and the continued operation of the business conducted by Holdings and the
Subsidiaries, all applicable appeal periods shall have expired and each of the foregoing shall be
in full force and effect and in form and substance reasonably satisfactory to the Requisite
Lenders.



           D.     Financial Condition and Solvency Certificate. Holdings shall have delivered to the
Administrative Agent a certificate from the chief financial officer of Holdings, substantially in
the form of Exhibit IV.



           E.     Costs, Fees and Expenses. On or prior to the Closing Date, Holdings shall have
paid (i) to the Administrative Agent any and all fees and reasonable expenses of the Administrative
Agent that are then due and owing or accrued and not yet paid under or in connection with this
Agreement, the Fee Letter, or any of the documents, instrument or agreements executed in connection
herewith, (ii) to the appropriate Persons any and all outstanding reasonable fees and expenses
(including legal advisors) incurred by the Administrative Agent through the Closing Date in
connection with the negotiation,drafting and execution of the Loan Documents and (iii) the fees and expenses of Gibson, Dunn &
Crutcher LLP.




31









 





RM Restaurant Holding Corp.
Credit Agreement






           F.     Opinions of Holdings’ Counsel. The Administrative Agent and its counsel shall have
received the written opinion of Holdings’ counsel, (a) in form and substance reasonably
satisfactory to the Requisite Lenders and the Administrative Agent and their counsel, (b) dated as
of the Closing Date, (c) addressed to each of the Administrative Agent and the Lenders and (d)
setting forth substantially the matters set forth in Exhibit V.



           G.     Financial Information. On or before the Closing Date, the Requisite Lenders shall
have received from Holdings such budgets and other cash flow and financial information described in
subsection 4.3 as the Administrative Agent or the Requisite Lenders may reasonably request, all in
form and substance reasonably satisfactory to the Requisite Lenders.



           H.     Evidence of Insurance. The Requisite Lenders shall have received copies of
certificates of insurance with respect to each of the insurance policies required pursuant to
subsection 5.4, and the Requisite Lenders shall be reasonably satisfied with the nature and scope
of these insurance policies.



           I.     No Material Adverse Effect. Since December 31, 2008, there shall not have occurred
any event, change or condition that has had, or could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.



           J.     Corporate and Capital Structure, Ownership, Management, Etc.




       (i)     Corporate Structure. The corporate organizational structure of Holdings
and the Subsidiaries as of the Closing Date shall be as set forth on Schedule 3.1J.




       (ii)     Capital Structure and Ownership. The capital structure and ownership of
Holdings and Opco as of the Closing Date shall be as set forth on Schedule 3.1J.



           K.     Representations and Warranties; Performance of Agreements. The representations and
warranties contained herein and in the other Loan Documents shall be true and correct in all
material respects on and as of the Closing Date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects on and as of such earlier
date. Holdings shall have delivered to the Administrative Agent and the Lenders an Officer’s
Certificate, in form and substance satisfactory to the Requisite Lenders, to the effect that the
representations and warranties in Section 4 are true and correct in all material respects on and as
of the Closing Date and both before and after giving effect to the transactions contemplated
herein, to the same extent as though made on and as of that date and that Holdings has performed in
all material respects all agreements and satisfied all conditions which this Agreement provides
shall be performed or satisfied by it on or before the Closing Date.



           L.     No Litigation. There shall be no litigation or governmental, administrative or
judicial actions or proceedings, actual or threatened, that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect or that could reasonably be expected
to restrain, prevent or impose burdensome conditions on any of the transactions contemplated
herein; provided, that it is expressly acknowledged by the Administrative Agent and
the Lenders that (i) the litigation matters currently pending against Holdings and the Subsidiaries
disclosed in Schedule 3.1L hereto, (ii) any litigation claims that assert substantially the
same or substantially similar legal theories or bases of liability as any of the matters described
in the immediately preceding clause (i) that are consolidated with any of the litigation matters
described in the immediately preceding clause (i), (iii) any claims alleged



32









 





RM Restaurant Holding Corp.
Credit Agreement




against Holdings and/or the Subsidiaries that are asserted during the period after the Merger
Date which arise in whole or in part from the conduct or alleged conduct of business or any other
action allegedly taken or omitted to be taken by Holdings or any of the Subsidiaries prior to the
Merger Date and that assert substantially the same or substantially similar legal theories or bases
of liability as any of the matters described in the immediately preceding clauses (i) or (ii), and
(iv) the litigation claims disclosed in Item #5 of Schedule 3.1L hereto, shall be
considered to have or reasonably be expected to have a Material Adverse Effect upon Holdings.



           M.     Completion of Proceedings. All partnership, corporate, limited liability company
and other proceedings taken or to be taken in connection with the transactions contemplated herein
and all documents incidental thereto not previously found acceptable by the Requisite Lenders and
the Administrative Agent and its counsel shall be satisfactory in form and substance to the
Requisite Lenders and the Administrative Agent and such counsel, and the Requisite Lenders and the
Administrative Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as the Administrative Agent may reasonably request.



           N.     Default, Event of Default. No event shall have occurred and be continuing or would
result from the consummation of the transactions contemplated by this Agreement that would
constitute a Default or Event of Default.



           O.     Indebtedness. The aggregate principal amount of Indebtedness of Holdings, Opco and
the Subsidiaries outstanding on the Closing Date shall not exceed the amount set forth in an
officer’s certificate acceptable to the Requisite Lenders in their sole discretion.



           P.     Redemption Notice. The Requisite Lenders shall have received evidence satisfactory
to them of delivery by Opco of a notice of redemption with respect to the Existing Senior Secured
Notes in accordance with Section 3.03 of the Existing Senior Secured Notes Indenture.



           Each Lender, by delivering its signature page to this Agreement, shall be deemed to have
acknowledged receipt of, and consented to and approved, each Loan Document and each other document
required to be approved by any Agent, Requisite Lenders or Lenders, as applicable, on or prior to
the Closing Date.



SECTION 4.

REPRESENTATIONS AND WARRANTIES




           In order to induce the Lenders to enter into this Agreement, Holdings represents and warrants
to the Administrative Agent and each Lender, on the date of this Agreement, that the following
statements are true and correct on and as of such date (except to the extent such statements
specifically relate to any earlier date, in which case they were true and correct on and as of such
earlier date).




4.1      Organization, Powers, Qualification, Good Standing, Business and Subsidiaries.



           A.     Organization and Powers. Holdings and each of the Subsidiaries (other than
Excluded Foreign Subsidiaries) that is a corporation is duly organized, validly existing and in
good standing under the laws of its state of organization. Each Subsidiary that is a partnership
or limited liability company is a duly organized and validly existing partnership or limited
liability company (as applicable) under the laws of its jurisdiction of formation and is in good
standing in such jurisdiction. Holdings and each of the Subsidiaries (other than Excluded Foreign
Subsidiaries) has all requisite corporate, partnership or limited liability company power and
authority to own and operate its properties and to carry on its business as now conducted and as
proposed to be conducted, and Holdings and each of the Subsidiaries (other than



33









 





RM Restaurant Holding Corp.
Credit Agreement




Excluded Foreign Subsidiaries) has all requisite corporate, partnership or limited liability
company (as applicable) power and authority to enter into the Loan Documents to which it is a
party, to carry out the transactions contemplated thereby and, in the case of Holdings, to issue,
deliver and pay the Term Notes and pay the obligations incurred under each of the Loan Documents
and, in the case of Opco, pay the obligations incurred under the Opco Credit Agreement.



           B.     Qualification and Good Standing. Holdings and each of the Subsidiaries is
qualified or authorized to do business and is in good standing in every jurisdiction where its
assets are located and wherever necessary to carry out its businesses and operations, except in
jurisdictions where the failure to be so qualified or in good standing has not had and could not
reasonably be expected to have a Material Adverse Effect.



           C.     Conduct of Business. Holdings and the Subsidiaries are engaged only in the
businesses permitted to be engaged in pursuant to subsection 5.12.



           D.     Holdings and Subsidiaries. All of the Subsidiaries of Holdings as of the Closing
Date are identified on Schedule 3.1J. As of the Closing Date, the Capital Stock or other
equity interests of Holdings and each of the Subsidiaries identified on Schedule 3.1J is
duly authorized, validly issued, fully paid and nonassessable and none of such Capital Stock or
other equity interests constitutes Margin Stock. Schedule 3.1J correctly sets forth, as of
the Closing Date, the ownership interest of Holdings and each of the Subsidiaries identified
therein and all Capital Stock and other equity interest in such Subsidiaries owned by others and
there are no other warrants, options or other rights to acquire any such Capital Stock or equity
interests of such Subsidiaries. As of the Closing Date, except as set forth on Schedule
4.1D, there are no registration rights, shareholder, voting rights and similar agreements
requiring Holdings or any of the Subsidiaries to register securities under the Securities Act or
governing voting or other rights of shareholders of Holdings or any of the Subsidiaries, in each
case to which Holdings or any of the Subsidiaries is a party.




4.2      Authorization, etc.



           A.     Authorization of Borrowing. The execution, delivery and performance of the Loan
Documents and the issuance and delivery of the Term Notes have been duly authorized by all
necessary corporate action on the part of Holdings.



           B.     No Conflict. After giving effect to the execution, delivery and performance by
Holdings of the Loan Documents, the issuance, delivery and payment of the Term Notes and the
consummation of the transactions contemplated herein do not and will not (i) violate any provision
of any law or any governmental rule or regulation applicable to Holdings, or violate the
Organizational Certificate or any other Organizational Documents of Holdings or any order, judgment
or decree of any court or other Governmental Authority binding on Holdings, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a default under any
indenture, agreement, contract or instrument to which Holdings is a party or by which any of them
or any of their property may be bound, except to the extent such conflict, breach or default could
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect,
(iii) result in or require the creation or imposition of any Lien upon any of the properties or
assets of Holdings (other than any Liens securing obligations under the Senior Secured Note
Documents and the Revolving Credit Documents), (iv) require any approval of stockholders, partners
or members or any approval or consent of any Person under any Organizational Certificate or other
indenture, agreement, contract or instrument to which Holdings is a party or by which any of them
or any of their property may be bound, except for such approvals or consents obtained on or before
the Closing Date or (v) give rise to any preemptive rights, rights of first refusal or other
similar rights on behalf of any Person under any Applicable Law or any provision of the
Organizational
Documents of Holdings or any material contract to which Holdings is a party or by which
Holdings is bound.



34









 





RM Restaurant Holding Corp.
Credit Agreement


           C.     Governmental Consents. The execution, delivery and performance by Holdings of the
Loan Documents, and, in the case of Holdings, the issuance, delivery and payment of the Term Notes
and the consummation of the transactions contemplated herein do not and will not require any
material registration with, consent or approval of, or notice, declaration, filing or other action
to, with or by, any Governmental Authority, except to the extent obtained on or before the Closing
Date.



           D.     Binding Obligation. Each of the Loan Documents has been duly executed and
delivered by Holdings and is the legally valid and binding obligation of each such Person,
enforceable against each such Person in accordance with its 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.



           E.     Margin Regulations. The making of the Term Loans does not violate Regulation T,
Regulation U or Regulation X of the Board of Governors of the Federal Reserve System.




4.3      Financial Condition.



           A.     Financial Statements. Holdings has heretofore delivered to the Lenders, at the
Lenders’ request, (i) certain quarterly unaudited consolidated balance sheets of Opco and the
Subsidiaries, together with related consolidated statements of income, stockholders’ equity and
cash flows, (ii) certain pro forma consolidated balance sheet and related pro forma consolidated
statements of income and cash flows of Opco and (iii) audited annual consolidated balance sheets
and statements of income, stockholders’ equity and cash flows of Opco and the Subsidiaries, in each
case, with all supporting documentation for any of the foregoing reasonably requested by the
Administrative Agent. All such statements were prepared in conformity with GAAP and fairly present,
in all material respects, the financial position (on a consolidated basis) of the entities
described therein as at the respective dates thereof and the results of operations and cash flows
(on a consolidated basis) of the entities described therein for each of the periods then ended,
subject, in the case of any such unaudited financial statements, to changes resulting from audit
and normal year-end adjustments and the absence of footnote disclosure required in accordance with
GAAP. None of Holdings, Opco nor any of the Subsidiaries has any Contingent Obligation, contingent
liability or liability for taxes, long-term leases or unusual forward or long-term commitments that
is not reflected in the financial statements referred to in the preceding clauses of this
subsection, the most recent financial statements delivered pursuant to subsection 5.1 or the notes
thereto and which in any such case is material in relation to the business, assets, operations,
properties, condition (financial or otherwise) or prospects of Holdings and the Subsidiaries, taken
as a whole.



           B.     [Intentionally Omitted]




4.4      No Material Adverse Change.



           Since December 31, 2008, there has occurred no materially adverse change in the financial
condition or business of Opco and the Subsidiaries 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 Opco and the Subsidiaries.



35









 





RM Restaurant Holding Corp.
Credit Agreement



4.5      Title to Properties; Liens; Real Property; Intellectual Property.



           A.     Title to Properties; Liens. Each of Holdings and the Subsidiaries has good and
marketable fee simple title to or a valid leasehold interest in all of their Real Property Assets
reflected in the financial statements referred to in subsection 4.3 or in the most recent financial
statements delivered pursuant to subsection 5.1, except for Real Property Assets disposed of since
the date of such financial statements in the ordinary course of business or as otherwise permitted
under subsection 6.7 and except for such defects that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. All such properties and assets are free
and clear of Liens (other than Liens expressly permitted by subsection 6.2).



           B.     Real Property. Each lease or sublease, as applicable, for each such Leasehold
Property is in full force and effect and Holdings does not have knowledge of and has not received
written notice of any material default by any party thereto that has occurred and is continuing
thereunder which could reasonably be expected to have a Material Adverse Effect, and each such
agreement constitutes the legally valid and binding obligation of Holdings and the Subsidiaries,
enforceable against Holdings or such Subsidiary in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or
limiting creditors’ rights generally or by equitable principles.



           C.     Intellectual Property. Holdings and the Subsidiaries own or have the valid right
to use all trademarks and service marks, tradenames, patents, copyrights, trade secrets and
technology necessary to conduct Holdings’ or such Subsidiary’s business (collectively, the
“Intellectual Property”), free and clear of any and all Liens (other than Liens expressly
permitted by subsection 6.2). All registrations therefor are in full force and effect and are
valid and enforceable, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or
by equitable principles. The conduct of Holdings’ or such Subsidiary’s business as currently
conducted, including all products, processes or services made, offered or sold by Holdings or such
Subsidiary, does not infringe upon, violate, misappropriate or dilute any intellectual property of
any third party, which infringement, violation, misappropriation or dilution could reasonably be
expected to have a Material Adverse Effect. To Holdings’ and each Subsidiary’s knowledge, no third
party is infringing upon the Intellectual Property in any material respect. There is no pending
or, to Holdings’ and each Subsidiary’s knowledge, threatened claim or litigation contesting the
right of Holdings or such Subsidiary to own or use any material Intellectual Property or the
validity or enforceability thereof.




4.6      Litigation; Compliance with Law.



           There is no action, suit, proceeding, arbitration or governmental investigation at law or in
equity or before or by any Governmental Authority pending or, to the knowledge of Holdings,
threatened against or affecting Holdings or any of the Subsidiaries or any property of Holdings any
of the Subsidiaries that, either individually or in the aggregate, has had, or could reasonably be
expected to have, a Material Adverse Effect. Except as identified on Schedule 4.6, none of
Holdings or any of the Subsidiaries is (i) in violation of any Applicable Law that has had, or
could reasonably be expected to have, a Material Adverse Effect or (ii) subject to or in default
with respect to any final judgment, writ, injunction, decree, order, rule or regulation of any
Governmental Authority that has had, or could reasonably be expected to have, a Material Adverse
Effect.



36









 





RM Restaurant Holding Corp.
Credit Agreement



4.7      Payment of Taxes.



           Except to the extent permitted by subsection 5.3, all material tax returns and reports of
Holdings and the Subsidiaries required to be filed by any of them have been timely filed and are
true, correct and complete in all material respects, and all material taxes, assessments, fees and other
governmental charges upon Holdings and the Subsidiaries and upon their respective properties,
assets, income, businesses and franchises which are due and payable have been paid when due and
payable. Holdings does not know of any proposed assessment of additional taxes against Holdings or
any of the Subsidiaries with respect to any period beginning on or before the date of this
Agreement, other than those which are being actively contested by Holdings or such Subsidiary in
good faith and by appropriate proceedings and for which reserves or other appropriate provisions,
if any, as may be required in conformity with GAAP shall have been made or provided therefor.




4.8      Performance of Agreements; Materially Adverse Agreements.



           On and after the Closing Date and after giving effect to the transactions contemplated herein,
neither Holdings nor any of the Subsidiaries is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any indenture,
agreement, contract or instrument to which it is a party or by which it or any of its property may
be bound, and no condition exists that, with the giving of notice or the lapse of time or both,
would constitute such a default, except, in each case, where the consequences, direct or indirect,
of such default or defaults, if any, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.




4.9      Governmental Regulation.



           Neither Holdings nor any of the Subsidiaries is subject to regulation under the Federal Power
Act, the Interstate Commerce Act or the Investment Company Act of 1940 or under any other federal
or state statute or regulation which may limit its ability to incur Indebtedness or which may
otherwise render all or any portion of the Obligations unenforceable.




4.10      Securities Activities.



           Neither Holdings nor any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of purchasing or carrying
any Margin Stock.




4.11      ERISA.



           Holdings, each of the Subsidiaries and each of their respective ERISA Affiliates are in
compliance with all applicable provisions and requirements of ERISA and the Code and the
regulations and published interpretations thereunder with respect to each Employee Benefit Plan,
and have performed all their obligations under each Employee Benefit Plan. Each Employee Benefit
Plan which is intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the Internal Revenue Service indicating that such Employee Benefit Plan
is so qualified and nothing has occurred subsequent to the issuance of such determination letter
which would cause such Employee Benefit Plan to lose its qualified status. No liability to the
PBGC (other than required premium payments), the Internal Revenue Service, any Employee Benefit
Plan or any trust established under Title IV of ERISA has been or is expected to be incurred by
Holdings, any of the Subsidiaries or any of their respective ERISA Affiliates. No ERISA Event has
occurred or is reasonably expected to occur. Except to the extent required under Section 4980B of
the Code or similar state laws or as set forth on Schedule 4.11, no Employee Benefit Plan
provides health or welfare benefits (through the purchase of insurance or otherwise) for any
retired or former employee of Holdings, any of the Subsidiaries or any of their respective ERISA
Affiliates. The present value of the aggregate benefit liabilities under each Pension Plan
sponsored, maintained or contributed to by Holdings, any of the Subsidiaries or any of their
respective ERISA Affiliates (determined as of the end of the most recent plan year on the basis of
the actuarial assumptions specified for funding purposes in the most recent actuarial valuation for
such



37









 





RM Restaurant Holding Corp.
Credit Agreement




Pension Plan) did not exceed the aggregate current value of the assets of such Pension Plan by
more than $5,000,000. As of the most recent valuation date for each Multiemployer Plan for which
the actuarial report is available, the potential liability of Holdings, the Subsidiaries and their
respective ERISA Affiliates for a complete withdrawal from such Multiemployer Plan (within the
meaning of Section 4203 of ERISA), when aggregated with such potential liability for a complete
withdrawal from all Multiemployer Plans, based on information available pursuant to Section 4221(e)
of ERISA is not greater than $5,000,000. Holdings, each of the Subsidiaries and each of their
respective ERISA Affiliates have complied with the requirements of Section 515 of ERISA with
respect to each Multiemployer Plan and are not in material “default” (as defined in Section
4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan.




4.12      Certain Fees.



           Except as otherwise disclosed in writing to the Administrative Agent, no broker’s or finder’s
fee or commission will be payable with respect to this Agreement or any of the transactions
contemplated herein, and Holdings hereby indemnifies the Administrative Agent and the Lenders
against, and agrees that it will hold the Administrative Agent and the Lenders harmless from, any
claim, demand or liability for any such broker’s or finder’s fees alleged to have been incurred in
connection herewith or therewith by Holdings or any of its Affiliates and any expenses (including
reasonable fees, expenses and disbursements of counsel) arising in connection with any such claim,
demand or liability.




4.13      Environmental Matters.



           Neither Holdings nor any of the Subsidiaries nor any of their respective Facilities or
operations are subject to any outstanding written order, consent decree or settlement agreement
with any Person relating to any Environmental Law, any Environmental Claim, or any Hazardous
Materials Activity that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Neither Holdings nor any of the Subsidiaries has received any letter or
request for information under Section 104 of the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9604) or any comparable law. There are and, to
Holdings’ knowledge, have been, no conditions, occurrences, or Hazardous Materials Activities which
could reasonably be expected to form the basis of an Environmental Claim against Holdings or any of
the Subsidiaries that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Neither Holdings nor any of the Subsidiaries or, to Holdings’ knowledge,
any predecessor of Holdings or any of the Subsidiaries has filed any notice under any Environmental
Law indicating past or present treatment of Hazardous Materials at any Facility, and none of
Holdings’ or any of the Subsidiaries’ operations involves the generation, transportation,
treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any
state equivalent which has materially violated any Environmental Law. Compliance with all current
or reasonably foreseeable future requirements pursuant to or under Environmental Laws, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. No event
or condition has occurred or is occurring with respect to Holdings or any of the Subsidiaries
relating to any Environmental Law, any Release of Hazardous Materials, or any Hazardous Materials
Activity which, individually or in the aggregate, has had, or could reasonably be expected to have,
a Material Adverse Effect.




4.14      Employee Matters.



           There is no strike or work stoppage in existence or threatened involving Holdings or any of
the Subsidiaries that could reasonably be expected to have a Material Adverse Effect.



38









 





RM Restaurant Holding Corp.
Credit Agreement



4.15      Solvency.



           Holdings is, and each of Holdings and the Subsidiaries, taken as a whole, are, and, upon the
incurrence of any Obligations by Holdings and any of the Subsidiaries on any date on which this
representation is made, will be, Solvent.




4.16      [Intentionally Omitted]




4.17      Disclosure.



           The representations and warranties of Holdings contained in the Loan Documents and the factual
information contained in the other documents, certificates and written statements furnished to any
of the Administrative Agent or the Lenders by or on behalf of Holdings or any of the Subsidiaries
for use in connection with the transactions contemplated by this Agreement or any other Loan
Document, when taken together, do not contain any untrue statement of a material fact or omit to
state a material fact (known to Holdings, in the case of any document not furnished by it)
necessary in order to make the statements contained herein or therein not materially misleading in
light of the circumstances under which the same were made. Holdings has disclosed to the
Administrative Agent and the Lenders all facts known to Holdings (other than matters of a general
economic nature) that, individually or in the aggregate, have had, or could reasonably be expected
to have, a Material Adverse Effect.



SECTION 5.

AFFIRMATIVE COVENANTS




           Holdings covenants and agrees that, until payment in full of all of the Term Loans and other
Obligations, Holdings shall perform, and Holdings shall cause each of the Subsidiaries to perform,
all covenants in this Section 5.




5.1      Financial Statements and Other Reports and Notices.



           A.     Financial Information. Holdings shall maintain and shall cause each of the
Subsidiaries to maintain, a system of accounting established and administered to permit preparation
of financial statements in conformity with GAAP. Holdings shall deliver to the Administrative
Agent (who shall promptly forward copies of the same to each Lender):




         (i)     as soon as practicable, but in any event not later than ninety (90) days after the
end of each Fiscal Year of Holdings and the Subsidiaries, the consolidated balance sheet of
Holdings and the Subsidiaries, as at the end of such Fiscal Year, and the related
consolidated statement of income and consolidated statement of cash flow for such Fiscal
Year, each setting forth in comparative form the figures for the previous Fiscal Year (all
such consolidated statements to be in reasonable detail, prepared in accordance with GAAP,
and certified without qualification and without an expression of uncertainty as to the
ability of Holdings and any of the Subsidiaries to continue as a going concern, by Ernst &
Young L.L.P. or by other independent nationally recognized certified public accountants
reasonably satisfactory to the Administrative Agent, together with a written statement from
such accountants to the effect that they have read a copy of this Agreement, and that, in
making the examination necessary to said certification, they have obtained no knowledge of
any Default or Event of Default, or, if such accountants shall have obtained knowledge of
any then existing Default or Event of Default they shall disclose in such statement any such
Default or Event of Default) and the projections from the current Fiscal Year;
provided that such accountants shall not be liable to the Lenders for
failure to obtain knowledge of any Default or Event of Default;



39









 





RM Restaurant Holding Corp.
Credit Agreement



     (ii)     as soon as practicable, but in any event not later than fifty-five (55) days after
the end of each of the Fiscal Quarters of Holdings and the Subsidiaries, copies of the
unaudited consolidated balance sheet of Holdings and the Subsidiaries as at the end of such
Fiscal Quarter, and the related consolidated statement of income and consolidated statement
of cash flow for such Fiscal Quarter and the portion of such Persons’ Fiscal Year then
elapsed, setting forth in each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet as of the end of) the previous
Fiscal Year and the comparisons to the projections for such period, all in reasonable detail
and prepared in accordance with GAAP, together with a certification by the principal
financial or accounting officer of Holdings that the information contained in such financial
statements fairly presents the financial position of Holdings and the Subsidiaries on the
date thereof (subject to year-end adjustments);




     (iii)     contemporaneously with the provision of such financial statements to the lenders
or agent under the Revolving Credit Agreement, unaudited monthly consolidated financial
statements of Opco and the Subsidiaries for such monthly period ending on the last Sunday of
each calendar month and the portion of Opco’s Fiscal Year then ending setting forth in each
case in comparative form the figures for the corresponding period or periods of (or, in the
case of the balance sheet, as of the end of) the previous Fiscal Year and the projections
for such period, each prepared in accordance with GAAP, together with a certification by the
principal financial or accounting officer of Opco that the information contained in such
financial statements fairly presents the financial condition of Opco and the Subsidiaries on
the date thereof (subject to year-end adjustments);




     (iv)     simultaneously with the delivery of the financial statements referred to in
clauses (i) and (ii) above, a statement certified by the principal financial or accounting
officer of Holdings (and in the case of delivery of the financial statements referred to in
subsection (i) above, the accountants of Holdings), in substantially the form of Exhibit
VI hereto (a “Compliance Certificate”), and setting forth in reasonable detail
computations evidencing compliance with the covenants contained in subsection 6.5 and (if
applicable) reconciliations to reflect changes in GAAP since the Closing Date;




     (v)     promptly after the filing or mailing thereof, copies of all material of a financial
nature filed with the Securities and Exchange Commission, if any filings are required, or
sent to the stockholders of Holdings;




     (vi)     within forty-five (45) days after the beginning of each Fiscal Year of Holdings
and from time to time upon request of the Administrative Agent (but not more frequently than
annually so long as no Default or Event of Default is continuing), projections of Holdings
and the Subsidiaries broken down for the next Fiscal Year on a month by month and quarter by
quarter basis updating those projections and budgets delivered to the Lenders and referred
to in subsection 4.3 or, if applicable, updating any later such projections delivered in
response to a request pursuant to this subsection 5.1(vi);




     (vii)     all notices and other information sent to any holder of any of the Senior Secured
Notes, to any lender under the Revolving Credit Documents or to any lender under the Opco
Credit Documents, in each case, in its capacity as such; and




     (viii)     from time to time such other financial data and information (including
accountants’ management letters, quarterly statements of Consolidated EBITDA for individual
Stores and operating and other financial statements delivered on a monthly basis under the
Opco Credit Agreement) as the Administrative Agent or any Lender may reasonably request.



40









 





RM Restaurant Holding Corp.
Credit Agreement


           B.     Defaults. Holdings will promptly notify the Administrative Agent in writing of the
occurrence of any Default or Event of Default. If any Person shall give any notice or take any
other action in respect of a claimed default (whether or not constituting an Event of Default)
under this Agreement or any other note, evidence of Indebtedness, indenture or other such
obligation to which or with respect to which any of Holdings or the Subsidiaries is a party or
obligor in excess of $1,000,000, whether as principal, guarantor, surety or otherwise, Holdings
shall forthwith give written notice thereof to the Administrative Agent, describing the notice or
action and the nature of the claimed default.



           C.     Environmental Events. Holdings will promptly give notice to the Administrative
Agent (a) of any violation of any Environmental Law that any of Holdings or the Subsidiaries
reports in writing to, or is required by Environmental Law to report (or for which any written
report supplemental to any oral report is made) to, any federal, state or local environmental
agency, and (b) upon becoming aware thereof, of any inquiry, proceeding, investigation, or other
action, including a notice from any agency of potential environmental liability, of any federal,
state or local environmental agency or board, that has the potential to have a Materially Adverse
Effect.



           D.     Notice of Litigation and Judgments. Holdings will, and will cause each of the
Subsidiaries to, give notice to the Administrative Agent in writing within fifteen (15) days of
becoming aware of any litigation or proceedings threatened in writing or any significant
development in any pending litigation and proceedings affecting Holdings or any of the Subsidiaries
or to which any of Holdings or the Subsidiaries is or becomes a party involving an uninsured claim
against any of Holdings or the Subsidiaries that could reasonably be expected to have a materially
adverse effect on Holdings or the Subsidiaries and stating the nature and status of such litigation
or proceedings. Holdings will, and will cause each of the Subsidiaries to, give notice to the
Administrative Agent, in writing, in form and detail satisfactory to the Administrative Agent,
within ten (10) days of any judgment not covered by insurance, final or otherwise, against any of
Holdings or the Subsidiaries in an amount in excess of $500,000.




5.2      Corporate Existence; Maintenance of Properties.



           Holdings will do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and rights and those of the Subsidiaries and will not, and will
not cause or permit any of the Subsidiaries to, convert to a limited liability company. Holdings
(i) will cause all of its properties and those of the Subsidiaries used or useful in the conduct of
its business or the business of the Subsidiaries to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment, (ii) will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the
judgment of Holdings may be necessary so that the business carried on in connection therewith may
be properly and advantageously conducted at all times, and (iii) will, and will cause each of the
Subsidiaries to, continue to engage primarily in the businesses now conducted by them and in
related businesses; provided that nothing in this subsection 5.2 shall prevent
Holdings from discontinuing the operation and maintenance of any of its properties or any of those
of the Subsidiaries if such discontinuance is, in the judgment of Holdings, desirable in the
conduct of its or their business and that do not in the aggregate materially adversely affect the
business of Holdings and the Subsidiaries on a consolidated basis.




5.3      Taxes.



           Holdings will, and will cause each of the Subsidiaries to, duly pay and discharge, or cause to
be paid and discharged, before the same shall become overdue, all taxes, assessments and other
governmental charges imposed upon it and its real properties, sales and activities, or any part
thereof, or upon the income or profits therefrom, as well as all claims for labor, materials, or
supplies that if unpaid



41









 





RM Restaurant Holding Corp.
Credit Agreement




might by law become a lien or charge upon any of its property; provided that
any such tax, assessment, charge, levy or claim need not be paid if the validity or amount thereof
shall currently be contested in good faith by appropriate proceedings and if Holdings or any such
Subsidiary shall have set aside on its books adequate reserves with respect thereto; and
provided further that Holdings and the Subsidiaries will pay all such
taxes, assessments, charges, levies or claims forthwith upon the commencement of proceedings to
foreclose any Lien that may have attached as security therefor.



5.4      Insurance.



           Holdings will, and will cause each of the Subsidiaries to, maintain with financially sound and
reputable insurers insurance with respect to its properties and business against such casualties
and contingencies as shall be in accordance with the general practices of businesses engaged in
similar activities in similar geographic areas and in amounts, containing such terms, in such forms
and for such periods as may be reasonable and prudent. Without limiting the foregoing, (i) such
insurance shall be in such minimum amounts that such Person will not be deemed a co-insurer under
applicable insurance laws, regulations and policies and otherwise shall be in such amounts, contain
such terms, be in such forms and be for such periods as may be reasonably satisfactory to the
Administrative Agent, and (ii) each such Person will (a) keep all of its physical property insured
with casualty or physical hazard insurance on an “all risks” basis, with broad form flood and
earthquake coverages and electronic data processing coverage, with a full replacement cost
endorsement and an “agreed amount” clause in an amount equal to 100% of the full replacement cost
of such property, with deductibles equal to those generally maintained by businesses engaged in
similar activities in similar geographic areas, subject to aggregate sublimits for flood and
earthquake equal to those generally maintained by businesses engaged in similar activities in
similar geographic areas, (b) maintain all such workers’ compensation or similar insurance as may
be required by law and (c) maintain, in amounts and with deductibles and “stop loss” provisions
equal to those generally maintained by businesses engaged in similar activities in similar
geographic areas, general public liability insurance against claims of bodily injury, death or
property damage occurring, on, in or about the properties of such Person, business interruption
insurance, and product liability insurance. In the event of failure by Holdings to provide and
maintain insurance as herein provided, the Administrative Agent may, at its option, provide such
insurance and charge the amount thereof to Holdings. Holdings shall furnish the Administrative
Agent with certificates of insurance and policies evidencing compliance with the foregoing
insurance provision.




5.5      Inspection.



           A.     General. Holdings shall permit the Lenders, if accompanied by the Administrative
Agent, or the Requisite Lenders, whether or not accompanied by the Administrative Agent, to visit
and inspect



           any of the properties of Holdings or the Subsidiaries, to examine the books of account of
Holdings and the Subsidiaries (and to make copies thereof and extracts therefrom), and shall permit
the Lenders to discuss the affairs, finances and accounts of Holdings and the Subsidiaries with,
and to be advised as to the same by, its and their officers, all at such reasonable times and
intervals as the Administrative Agent or any Lender may reasonably request; provided
that any such visits shall occur no more frequently than twice per year if no Event of
Default has occurred and is continuing. The Administrative Agent shall notify the Lenders of any
such visit or inspection by the Administrative Agent, and the Lenders shall have the right to
participate therein.



           B.     Communications with Accountants. Holdings authorizes the Lenders, if accompanied
by the Administrative Agent, to communicate directly with Holdings’ independent certified public
accountants and authorizes such accountants to disclose to the Administrative Agent any and all
financial



42









 





RM Restaurant Holding Corp.
Credit Agreement




statements and other supporting financial documents and schedules including copies of any
management letter with respect to the business, financial condition and other affairs of any of
Holdings or the Subsidiaries. At the request of the Administrative Agent, Holdings shall deliver a
letter addressed to such accountants instructing them to comply with the provisions of this
subsection 5.5B.




5.6      Compliance with Laws, Contracts, Licenses, and Permits.



           Holdings will, and will cause each of the Subsidiaries to, comply in all material respects
with (a) the applicable laws and regulations wherever its business is conducted, including all
Environmental Laws, (b) the provisions of its charter documents and by-laws, (c) all agreements and
instruments by which it or any of its properties may be bound and (d) all applicable decrees,
orders, and judgments. If any authorization, consent, approval, permit or license from any
officer, agency or instrumentality of any government shall become necessary or required in order
that Holdings or the Subsidiaries may fulfill any of its obligations hereunder or any of the other
Loan Documents to which Holdings or such Subsidiary is a party, Holdings will, or will cause such
Subsidiary to, immediately take or cause to be taken all reasonable steps within the power of
Holdings or such Subsidiary to obtain such authorization, consent, approval, permit or license and
furnish the Administrative Agent and the Lenders with evidence thereof. Without limiting the
foregoing, Holdings will, and will cause each of the Subsidiaries to, obtain any and all approvals
by any federal, state or local liquor authority necessary for the continued operation at all times
of any Store operated by any of Holdings or the Subsidiaries with full liquor service unless the
failure to obtain such approvals would not have a Materially Adverse Effect.




5.7      Environmental Laws.



           A.     Holdings shall, and shall cause each of the Subsidiaries to, (i) comply and cause (x) all
tenants under any leases or occupancy agreements affecting any portion of the Facilities presently
owned or operated by Holdings or the Subsidiaries and (y) all other Persons on or occupying such
property to comply with all Environmental Laws and (ii) obtain and comply with and, maintain, and
ensure that all tenants and subtenants obtain and comply with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable Environmental Laws except
where the failure to comply, obtain or maintain with respect to clauses (i) or (ii) would not have
a Material Adverse Effect.



           B.     Holdings shall, and shall cause each of the Subsidiaries to, conduct and complete all
investigations, studies, sampling and testing, and all remedial, removal and other actions required
under Environmental Laws and timely comply with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws except to the extent that the same are being
contested in good faith by appropriate proceedings and the pendency of such proceedings,
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.



           C.     Holdings agrees that the Administrative Agent may, from time to time, retain, at Holdings’
expense, an independent professional consultant to review any report relating to Hazardous
Materials prepared by or for Holdings or the Subsidiaries and to conduct its own investigation of
any Facility currently owned, leased, operated or used by Holdings or any of the Subsidiaries, if
(i) a Default or an Event of Default shall have occurred and be continuing and any facility has an
occurrence giving rise to an Environmental Liability, or (ii) the Administrative Agent or Requisite
Lenders reasonably believes (x) that an occurrence relating to such Facility is likely to give rise
to an Environmental Liability or (y) that a violation of an Environmental Law on or around such
Facility has occurred or is likely to occur, which could, in either such case, reasonably be
expected to have a Material Adverse Effect. Holdings shall obtain for the Administrative Agent and
its agents, employees, consultants and contractors the right, upon notice to Holdings, to enter
into or on to the Facilities currently owned, leased, operated or used by Holdings or any of the
Subsidiaries to perform such tests on such property as are necessary to



43









 





RM Restaurant Holding Corp.
Credit Agreement




conduct such a review and/or investigation. Any such investigation of any Facility shall be
conducted, unless otherwise agreed to by Holdings and the Administrative Agent, during normal
business hours and, to the extent reasonably practicable, shall be conducted so as not to interfere
with the ongoing operations at any such Facility or to cause any damage or loss to any property at
such Facility. Holdings and the Administrative Agent hereby acknowledge and agree that any report
of any investigation conducted at the request of the Administrative Agent pursuant to this
subsection 5.7C shall be for the benefit of Holdings and may be used by the Administrative Agent
and the Lenders for the purposes of the Lenders’ internal credit decisions, to monitor and police
the Term Loans, and the Administrative Agent and the Lenders hereby acknowledge and agree any such
report shall be kept confidential by them to the extent permitted by law pursuant to subsection
9.18. The Administrative Agent agrees to deliver a copy of any such report to Holdings with the
understanding that Holdings acknowledges and agrees that (i) it shall indemnify and hold harmless
the Administrative Agent and each Lender from any costs, losses or liabilities relating to
Holdings’ use of or reliance on such report, (ii) no Agent nor any Lender makes any representation
or warranty with respect to such report, and (iii) by delivering such report to Holdings, no Agent
nor any Lender is requiring or recommending the implementation of any suggestions or
recommendations contained in such report.



           D.     Holdings shall, and shall cause each of the Subsidiaries to, promptly advise the
Administrative Agent in writing and in reasonable detail of (i) any Release or threatened Release
of any Hazardous Materials required to be reported to any Governmental Authority under any
applicable Environmental Laws, (ii) any and all communications (written or oral) with respect to
any pending or threatened Environmental Claims in each such case which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect and any and all material
written communications with respect to any Release or threatened Release of Hazardous Materials,
(iii) any cleanup performed by Holdings or any of the Subsidiaries or any other Person in response
to (x) any Hazardous Materials on, under or about any Facility, the existence of which could
reasonably be expected to result in an Environmental , Liability having a Material Adverse Effect,
or (y) any Environmental Liabilities that could reasonably be expected to have a Material Adverse
Effect, (iv) any discovery by Holdings or any of the Subsidiaries of any occurrence or condition on
any property that could cause any Facility presently owned or operated by Holdings or the
Subsidiaries or any part thereof to be subject to any restrictions on the ownership, occupancy,
transferability or use thereof under any Environmental Laws, and (v) any request for information
from any Governmental Authority that fairly suggests such Governmental Authority is investigating
whether Holdings or any of the Subsidiaries may be potentially responsible for a Release or
threatened Release of Hazardous Materials which could reasonably be expected to have a Material
Adverse Effect.



           E.     Holdings shall, and shall cause each of the Subsidiaries to, promptly notify the
Administrative Agent in writing and in reasonable detail of (i) any proposed acquisition of stock,
assets, or property by Holdings or any of the Subsidiaries that could reasonably be expected to
expose Holdings or any of the Subsidiaries to, or result in, Environmental Liability that could
reasonably be expected to have a Material Adverse Effect or that could reasonably be expected to
have a material adverse effect on any Governmental Authorization then held by Holdings or any of
the Subsidiaries and (ii) any proposed action to be taken by Holdings or any of the Subsidiaries to
commence manufacturing, agricultural, industrial or other similar operations that could reasonably
be expected to subject Holdings or any of the Subsidiaries to additional Environmental Laws, that
are materially different from the Environmental Laws applicable to the operations of Holdings and
the Subsidiaries as of the Closing Date.



           F.     Holdings shall, and shall cause each of the Subsidiaries to, at its own expense, provide
copies of such documents or information as the Administrative Agent may reasonably request in
relation to any matters disclosed pursuant to this subsection 5.7.



44









 





RM Restaurant Holding Corp.
Credit Agreement


           G.     Holdings shall, and shall cause each of the Subsidiaries to, defend, indemnify and hold
harmless the Administrative Agent and the Lenders, and their respective employees, agents, officers
and directors, from and against any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of, noncompliance with or
liability under, any Environmental Law applicable to the Facilities or the business or operations
of Holdings or any of the Subsidiaries, or any orders, requirements or demands of Governmental
Authorities related thereto, including reasonable attorney’s and consultant’s fees, investigation
and laboratory fees, response costs, court costs and litigation expenses, except to the extent that
any of the foregoing arise out of the gross negligence or willful misconduct of the party seeking
indemnification therefor. The agreements in this paragraph shall survive repayment of the
Obligations solely to the extent relating to periods prior to such repayment.




5.8      Employee Benefit Plans.



           Holdings will (i) promptly upon filing the same with the Department of Labor or Internal
Revenue Service and upon request of the Administrative Agent, furnish to the Administrative Agent a
copy of the most recent actuarial statement required to be submitted under Section 103(d) of ERISA
and Annual Report, Form 5500, with all required attachments, in respect of each Guaranteed Pension
Plan and (ii) promptly upon receipt or dispatch by Holdings or any ERISA affiliate, furnish to the
Administrative Agent any notice, report or demand sent or received in respect of a Guaranteed
Pension Plan under Section 302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect
of a Multiemployer Plan, under Section 4041A, 4202, 4219, 4242, or 4245 of ERISA.




5.9      Reporting.



           Whether or not required by the SEC or any of its rules or regulations, so long as any Term
Loans are outstanding, Holdings shall cause Opco to file with the SEC, unless such filing by a
company having no obligation to file under applicable law and regulation is not permitted by the
SEC, and will deliver to the Administrative Agent and the Lenders, within the time periods
specified in the SEC’s rules and regulations, (i) all quarterly and annual financial information
that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if Opco were
required to file such Forms, including a “Management’s Discussion and Analysis of Financial
Condition and Result of Operations” and with respect to the annual information only, a report on
the annual financial statements by Opco’s certified independent accounts; and (ii) all current
reports that would be required to be filed with the SEC on Form 8-K if Opco were required to file
such reports.




5.10     [Intentionally Omitted]




5.11      Further Assurances.



           Holdings will, and will cause each of the Subsidiaries to, cooperate with the Lenders and the
Administrative Agent and execute such further instruments and documents as the Lenders or the
Administrative Agent shall reasonably request to carry out to their satisfaction the transactions
contemplated by this Credit Agreement and the other Loan Documents. Upon receipt of an affidavit
of any officer of any Lender as to the loss, theft, destruction or mutilation of any Term Note or
other Loan Document, Holdings will issue, in lieu thereof, a replacement Term Note or other Loan
Document in the same principal amount thereof and otherwise of like tenor.



45









 





RM Restaurant Holding Corp.
Credit Agreement



5.12      Conduct of Business; Stores.



           Holdings will cause the Subsidiaries to continue to engage only in the business of owning and
operating casual dining restaurants, manufacturing of food products and the distribution of food,
beverages and other restaurant supplies and in businesses and activities closely related thereto.
Holdings shall inform the Administrative Agent of any new Store locations simultaneously with the
delivery of the financial statements referred to in subsection 5.1A(iii) but in any event no later
than one month after the opening of a new Store location and the entering into a lease for, or the
acquisition of, the premises for a new Store. Holdings will continue to engage only in the
business of owning the capital stock of the Subsidiaries and shall not own any assets other than
the capital stock of the Subsidiaries.




5.13      Existing Senior Secured Note Redemption.



           On or prior to the 40th day following the delivery of a notice of redemption delivered in
accordance with Section 3.03 of the Existing Senior Secured Note Indenture in which Opco elected
to redeem all but not less than all Existing Senior Secured Notes issued thereunder pursuant to the
optional redemption provisions of Section 3.07 of the Existing Senior Secured Note Indenture,
Holdings shall cause Opco to deliver evidence reasonably satisfactory to the Administrative Agent
that all money deposited with the Trustee (as defined in the Existing Notes Indenture) pursuant to
Section 12.01(1)(b) of the Existing Senior Secured Note Indenture have been sent by the applicable
trustee to the holders of the Senior Secured Notes for application to the payment of all Senior
Secured Notes issued thereunder.



SECTION 6.

NEGATIVE COVENANTS




           Holdings covenants and agrees that, until payment in full of all of the Term Loans and other
Obligations, it shall perform, and Holdings shall cause each of the Subsidiaries to perform, all
covenants in this Section 6.




6.1      Indebtedness.



           Holdings will not and will not permit any of the Subsidiaries to, directly or indirectly,
create, incur, issue, assume or guaranty, or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness other than:



        (a)     in the case of Opco and the Subsidiaries




         (i)     Indebtedness at any time incurred under the Revolving Credit Documents and any
Permitted Refinancing Indebtedness in respect of such Indebtedness in an aggregate principal
amount under this clause (ii) not to exceed $40,000,000, less the aggregate amount of all
permanent reductions of the commitments thereunder by Opco or any of the Subsidiaries since
the Closing Date;




         (ii)     Indebtedness at any time incurred under the Opco Credit Documents and any
Permitted Refinancing Indebtedness in respect of such Indebtedness in an aggregate principal
amount under this clause (ii) not to exceed $25,000,000 (plus the amount of accrued and
unpaid interest paid thereon in kind in accordance with the Opco Loan Agreement as in effect
on the Closing Date);




         (iii)     Endorsements for collection, deposit or negotiation and warranties of products or
services, in each case incurred in the ordinary course of business;



46









 





RM Restaurant Holding Corp.
Credit Agreement



         (iv)     Indebtedness in respect of Rate Protection Agreements entered into in order to
hedge against interest rate fluctuations on Indebtedness for borrowed money of Opco and the
Subsidiaries and not for speculative purposes;




         (v)     Indebtedness incurred in connection with the acquisition after the Closing Date of
any real or personal property by Opco or any of the Subsidiaries or under any Capitalized
Lease in connection with new Stores or major renovations or refurbishments of existing
Stores; provided that the aggregate principal amount of such Indebtedness of
Opco and the Subsidiaries outstanding at any time under this clause (v) shall not exceed the
aggregate amount of $5,000,000 and provided further, that no Default or
Event of Default shall exist (a) prior to the incurrence of such Indebtedness or (b) as a
result of the incurrence of such Indebtedness;




         (vi)     Indebtedness of Opco or a Subsidiary to Opco or another Subsidiary;
provided that all such intercompany Indebtedness shall be subordinated to
the Obligations on terms satisfactory to the Administrative Agent;




         (vii)     Indebtedness existing on the Closing Date and listed and described on
Schedule 6.1 hereto and any Permitted Refinancing Indebtedness in respect of such
Indebtedness;




         (viii)     Indebtedness evidenced by the Senior Secured Note Documents and any Permitted
Refinancing Indebtedness in respect of such Indebtedness in an aggregate principal amount
under this clause (x) not to exceed $130,000,000, less the aggregate amount of all
repayments, redemptions or repurchase by Opco or any of the Subsidiaries of the Indebtedness
thereunder since the Closing Date;




         (ix)     Indebtedness consisting of contingent obligations of Opco or any of the
Subsidiaries to repurchase or otherwise redeem capital stock of Opco from former employees
of Opco and the Subsidiaries pursuant to the terms of employee stock ownership, employee
stock option or other employee compensation plans of Opco and the Subsidiaries and matured
obligations to repurchase or otherwise redeem such stock to the extent such repurchase or
redemption is permitted under subsection 6.4(iii);




         (x)     Indebtedness evidenced by the Existing Senior Secured Note Documents in an
aggregate principal amount under this clause (x) not to exceed $105,000,000;
provided that cash proceeds in the amount of such Indebtedness permitted
under this clause (x) shall be deposited with the trustee under the Existing Senior Secured
Note Documents on or prior to the Closing Date and such Indebtedness shall be redeemed as
set forth in the Existing Senior Secured Note Documents within 40-days from the Closing
Date;




         (xi)     Indebtedness consisting of Opco or any of the Subsidiaries guarantying the
Indebtedness of Opco or any of the Subsidiaries so long as such Indebtedness is otherwise
permitted hereunder;




         (xii)     other Indebtedness in an aggregate principal amount at any time outstanding not
to exceed $5,000,000; and




         (xiii)     Indebtedness representing installment insurance premiums of Opco or any of the
Subsidiaries owing to insurance companies in the ordinary course of business; and



        (b)     in the case of Holdings:



47









 





RM Restaurant Holding Corp.
Credit Agreement



         (i)     Indebtedness arising under the Loan Documents;




         (ii)     Indebtedness existing on the Closing Date and listed and described on Schedule
6.1 hereto and any Permitted Refinancing Indebtedness in respect of such Indebtedness;




         (iii)     Indebtedness representing installment insurance premiums of owing to insurance
companies in the ordinary course of business; and




         (iv)     guarantee obligations under the Revolving Credit Documents and the Senior Secured
Note Documents.




6.2      Liens and Related Matters.



           Holdings will not, and will not permit any of the Subsidiaries to, (i) create or incur or
suffer to be created or incurred or to exist any Lien upon any of its property or assets of any
character whether now owned or hereafter acquired, or upon the income or profits therefrom;
(ii) transfer any of such property or assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any other obligation in
priority to payment of its general creditors; (iii) acquire, or agree or have an option to acquire,
any property or assets upon conditional sale or other title retention or purchase money security
agreement, device or arrangement; (iv) suffer to exist for a period of more than thirty (30) days
after the same shall have been incurred any Indebtedness or claim or demand against it that if
unpaid might by law or upon bankruptcy or insolvency, or otherwise, be given any priority
whatsoever over its general creditors; (v) sell, assign, pledge or otherwise transfer any accounts
or general intangibles for money due or to become due, chattel paper, instruments or documents
creating or evidencing a right to payment of money or other receivables, with or without recourse;
or (vi) enter into or permit to exist any arrangement or agreement, enforceable under applicable
law, which directly or indirectly prohibits Holdings or any of the Subsidiaries from creating or
incurring any lien, encumbrance, mortgage, pledge, charge, restriction or other security interest
other than (1) the restrictions under the Revolving Credit Documents as in effect on the Closing
Date and as amended to the extent permitted by subsection 6.11 in favor of the agent thereunder for
the benefit of the lenders and the agent thereunder, (2) the restrictions under the Senior Secured
Note Documents as in effect on the Closing Date and as amended to the extent permitted by
subsection 6.11, (3) the restrictions under the Opco Credit Documents as in effect on the Closing
Date and as amended from time to time to the extent permitted by subsection 6.11, (4) prior to the
2009 Indenture Effective Time, the restrictions under the Existing Senior Secured Note Documents,
and (5) customary anti-assignment provisions in leases and licensing agreements entered into by
Holdings or any of the Subsidiaries in the ordinary course of its business; provided
that



           (a)     any of Opco or the Subsidiaries may create or incur or suffer to be created or incurred or
to exist:




         (i)     liens to secure taxes, assessments and other government charges in respect of
obligations not overdue or liens on properties to secure claims for labor, material or
supplies in respect of obligations not overdue or which are being contested in good faith
and for which an adequate reserve or other appropriate provisions shall have been made to
the extent required by generally accepted accounting principles;




         (ii)     deposits or pledges made in connection with, or to secure payment of, workmen’s
compensation, unemployment insurance, old age pensions or other social security obligations;




         (iii)     liens in respect of judgments or awards that have been in force for less than the
applicable period for taking an appeal so long as execution is not levied thereunder or in
respect



48









 





RM Restaurant Holding Corp.
Credit Agreement




of which Holdings or a Subsidiary, as applicable, shall at the time in good faith be
prosecuting an appeal or proceedings for review and in respect of which a stay of execution
shall have been obtained pending such appeal or review;




         (iv)     liens of carriers, warehousemen, mechanics and materialmen, and other like liens
in existence less than 120 days from the date of creation thereof in respect of obligations
not overdue or which are being contested in good faith and for which an adequate reserve or
other appropriate provisions shall have been made to the extent required by generally
accepted accounting principles;




         (v)     encumbrances on Real Property Assets consisting of easements, rights of way, zoning
restrictions, restrictions on the use of real property and defects and irregularities in the
title thereto, landlord’s or lessor’s liens under leases or subleases to which Holdings or a
Subsidiary is a party, and other minor liens or encumbrances none of which in the opinion of
Holdings interferes materially with the use of the property affected in the ordinary conduct
of the business of Holdings and the Subsidiaries, which defects do not individually or in
the aggregate have a materially adverse effect on the business of Holdings and the
Subsidiaries on a consolidated basis;




         (vi)     liens existing on the Closing Date and listed and described on Schedule
6.2 hereto;




         (vii)     purchase money security interests in or purchase money mortgages on real or
personal property acquired after the Closing Date to secure purchase money Indebtedness of
the type and amount permitted by subsection 6.1, incurred in connection with the acquisition
of such property, which security interests or mortgages cover only the real or personal
property so acquired;




         (viii)     liens on tenant improvements securing Indebtedness incurred with respect thereto
and which is permitted under subsection 6.1;




         (ix)     liens upon any of the property or assets of Opco and/or the Subsidiaries created
under, or evidenced or governed by, the Senior Secured Note Documents securing Indebtedness
permitted by subsection 6.1(a)(viii) and other Note Obligations (as defined in the Senior
Secured Note Documents), as in effect on the Closing Date;




         (x)     liens upon any of the property or assets of Opco and/or the Subsidiaries created
under, or evidenced or governed by, the Revolving Credit Documents (or the documents
relating to any Permitted Refinancing Indebtedness in respect thereof) securing Indebtedness
permitted by subsection 6.1(a)(i);




         (xi)     liens on Cash in an amount not to exceed $5,000,000 utilized to collateralize
letters of credit;




         (xii)     liens securing Indebtedness incurred under the Existing Senior Secured Note
Documents to the extent permitted under Section 6.1;




         (xiii)     liens on assets of Holdings and the Subsidiaries not otherwise permitted by this
subsection; provided that neither the aggregate amount of the obligations
secured thereby nor the aggregate fair market value of the assets subject thereto exceeds
$500,000 at any time outstanding; and



49









 





RM Restaurant Holding Corp.
Credit Agreement



         (xiv)     liens on insurance policies and the proceeds thereof securing the financing of
premiums with respect thereto; and



           (b)     Holdings may create or incur or suffer to be created or incurred or to exist:




         (i)     liens to secure taxes, assessments and other government charges in respect of
obligations not overdue or liens on properties to secure claims for labor, material or
supplies in respect of obligations not overdue or which are being contested in good faith
and for which an adequate reserve or other appropriate provisions shall have been made to
the extent required by generally accepted accounting principles;




         (ii)     liens in respect of judgments or awards that have been in force for less than the
applicable period for taking an appeal so long as execution is not levied thereunder or in
respect of which Opco or a Subsidiary, as applicable, shall at the time in good faith be
prosecuting an appeal or proceedings for review and in respect of which a stay of execution
shall have been obtained pending such appeal or review;




         (iii)     liens on insurance policies and the proceeds thereof securing the financing of
premiums with respect thereto;




         (iv)     liens created under, or evidenced or governed by, the Senior Secured Note
Documents securing Indebtedness permitted by subsection 6.1(b)(iv) and other Note
Obligations (as defined in the Senior Secured Note Documents); and




         (v)     liens created under, or evidenced or governed by, the Revolving Credit Documents
(or the documents relating to any Permitted Refinancing Indebtedness in respect thereof)
securing Indebtedness permitted by subsection 6.1(b)(iv).




6.3      Investments.



           Holdings will not, and will not permit any of the Subsidiaries to, make or permit to exist or
to remain outstanding any Investment, except Investments in:




         (i)     Cash Equivalents;




         (ii)     receivables owing to Holdings or any of the Subsidiaries if created or acquired in
the ordinary course of business and payable or dischargeable in accordance with customary
trade terms;




         (iii)     demand deposits, certificates of deposit, bankers acceptances and time deposits
of United States banks having total assets in excess of $1,000,000,000;




         (iv)     Investments existing on the Closing Date and listed on Schedule 6.3
hereto;




         (v)     loans, investments and advances by Holdings or any Subsidiary in or to Holdings or
another Subsidiary to the extent permitted by subsections 6.1 and equity investments made by
Holdings in a Subsidiary;




         (vi)     Investments by Opco and the Subsidiaries in respect of any Rate Protection
Agreement which is permitted by subsection 6.1;



50









 





RM Restaurant Holding Corp.
Credit Agreement



         (vii)     securities (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in the ordinary
course of business;




         (viii)     Investments consisting of promissory notes received as proceeds of asset
dispositions permitted by subsection 6.6B, provided that the aggregate value
of such promissory notes received in connection with any such asset disposition shall not
exceed 25% of the aggregate value of the proceeds of such asset disposition; and




         (ix)     Investments consisting of loans and advances to employees for moving,
entertainment, travel and other similar expenses in the ordinary course of business not to
exceed $500,000 in the aggregate at any time outstanding.




6.4      Restricted Payments.



           Holdings will not, and will not permit any of the Subsidiaries to, make any Restricted
Payments, except for the following:




         (i)     Distributions payable by any Subsidiary to Holdings or Opco;




         (ii)     so long as no Event of Default is then continuing, Distributions in an amount not
to exceed $1,000,000 per annum (with up to $1,000,000 of unused amounts in previous periods
to be carried over into subsequent periods) to be used to repurchase or otherwise redeem
capital stock of Opco or Holdings from former employees of Opco and the Subsidiaries
pursuant to the terms of employee stock ownership, employee stock options or other employee
compensation plans of Opco and the Subsidiaries; provided that that portion
of such Distributions equal to cash payments received by Opco from the subsequent sale of
such repurchased or redeemed capital stock for cash to any employee of Opco and the
Subsidiaries at the commencement of such Person’s employment shall not be deemed to be a
Distribution for purposes of this Section 6.4(ii);




         (iii)     Holdings, the Company and the Subsidiaries may make Distributions to the extent
all of the proceeds of such Distributions are promptly upon receipt thereof used by Holdings
to make payments of fees and expenses permitted by clauses (a), (b), (c) or (e) of the
proviso to Section 6.10 (and to the extent Holdings makes such payments in the form of a
Distribution, such Distribution by Holdings); and




         (iv)     (A) at all times prior to the 2009 Indenture Effective Time, (i) payment in
respect of or purchase of the Existing Senior Secured Notes funded solely with the proceeds
of the substantially contemporaneous sale or issuance of common Equity Interest of Holdings
to Permitted Holders or their Control Investment Affiliates and (ii) cash payment
obligations with respect to interest and costs and expenses on the Existing Senior Secured
Notes to the extent required by the Existing Senior Secured Note Documents, (B) from and
after the 2009 Indenture Effective Time, (i) payment in respect of or purchase of the Senior
Secured Notes funded solely with the proceeds of the substantially contemporaneous sale or
issuance of common Equity Interest of Holdings to Permitted Holders or their Control
Investment Affiliates, (ii) cash payment obligations with respect to interest and costs and
expenses on the Senior Secured Notes to the extent required by the Senior Secured Note
Documents, (iii) payments by Opco in connection with an Excess Cash Flow Offer as defined in
and as required by the Senior Secured Note Indenture and to the extent permitted by the
Revolving Credit Agreement, and (iv) payment in full of the Senior Secured Notes at
scheduled maturity pursuant to the terms of the Senior Secured
Indenture; or (C) payment in full on or about the 2009 Indenture Effective Time of the
Existing Senior Secured Notes.




51









 





RM Restaurant Holding Corp.
Credit Agreement






6.5      Financial Covenants.



           A.     Maximum Leverage Ratio. Holdings will not permit the Leverage Ratio, determined at
the end of and for any period of four consecutive fiscal quarters of Holdings, to be greater than
6.70 to 1.00.



           If the 2009 Indenture Effective Time has occurred on or prior to September 30, 2009, for the
purpose of determining compliance with the above Leverage Ratio covenant for the measurement period
ending on or about September 30, 2009, the term “Consolidated Funded Indebtedness” shall not
include Existing Senior Secured Notes.



           B.     Adjusted Leverage Ratio. Holdings will not permit the Adjusted Leverage Ratio,
determined at the end of and for any period of four consecutive fiscal quarters of Holdings, to be
greater than 7.50 to 1.00.



           If the 2009 Indenture Effective Time has occurred on or prior to September 30, 2009, for the
purpose of determining compliance with the above Adjusted Leverage Ratio covenant for the
measurement period ending on or about September 30, 2009, the term “Adjusted Debt” shall not
include Existing Senior Secured Notes.



           C.     Minimum Interest Coverage Ratio. Holdings will not permit the Interest Coverage
Ratio, determined for any period of four consecutive fiscal quarters ending on the last day of each
fiscal quarter, to be less than 1.00 to 1.00.



           D.     Minimum Consolidated Cash Flow. The Borrowers will not permit the Consolidated
Cash Flow, determined for any Measurement Period ending on the last day of any fiscal quarter
(commencing with the fiscal quarter ending on or about June 30, 2009), to be less than $32,000,000.



           E.     Capital Expenditures. Holdings will not make, and will not permit any of the
Subsidiaries to make, any Capital Expenditures (other than Capital Expenditures funded solely with
the proceeds of a sale or issuance of common Equity Interests of Holdings 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 $20,000,000 in any Fiscal Year (each a “Capital
Expenditure Limitation”); provided, however, in the event Holdings and the
Subsidiaries do not expend the entire Capital Expenditure Limitation in any Fiscal Year, Holdings
and the Subsidiaries may carry forward to the immediately succeeding Fiscal Year the unutilized
portion not to exceed $5,000,000 (it being understood and agreed that all Capital Expenditures
shall first be applied to reduce the applicable Capital Expenditure Limitation and then to reduce
the carry-forward from the previous Fiscal Year, if any); provided, further,
however, that if Consolidated EBITDA for any Fiscal Year (each a “Test Year”) is
equal to or greater than $45,000,000, Opco and the Subsidiaries shall be permitted to make Capital
Expenditures during the Fiscal Year following such Test Year in an aggregate amount not to exceed
55% of Consolidated EBITDA for such Test Year (plus Capital Expenditures funded solely with the
proceeds of a sale or issuance of common Equity Interests of Holdings 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).



52









 





RM Restaurant Holding Corp.
Credit Agreement


           F.     Certain Calculations. With respect to any period of four trailing consecutive
Fiscal Quarters during which Holdings or any of the Subsidiaries has consummated an acquisition of
the Capital Stock of, or assets constituting a business, division or product line of, another
Person or an Asset Sale, in each case permitted by the terms of this Agreement, for purposes of
determining compliance with the covenants set forth in this Section 6.5, Consolidated EBITDA and
the components of Consolidated Interest Expense shall be calculated with respect to such period on
a Pro Forma Basis; provided that in the case of testing compliance with the covenants in subsection
6.5D, Capital Expenditures and Consolidated EBITDA shall also be calculated with respect to such
period on a Pro Forma Basis for the prior Fiscal Year.




6.6      Restriction on Fundamental Changes; Asset Sales.



           A.     Mergers and Consolidations. Subject to subsection 6.6C, Holdings will not, and
will not permit any of the Subsidiaries to, become a party to any merger or consolidation except
the merger or consolidation of one or more of the Subsidiaries of Holdings with and into Holdings,
or the merger or consolidation of two or more Subsidiaries of Holdings.



           B.     Dispositions of Assets. Holdings will not, and will not permit any of the
Subsidiaries to, become a party to or agree to or effect any Asset Sale, other than (a) the sale of
inventory and the disposition of obsolete assets, in each case in the ordinary course of business
consistent with past practices, (b) Sale-Leaseback transactions permitted pursuant to
subsection 6.7, (c) the sale of unprofitable stores and (d) Asset Sales of assets having a fair
market value (determined in good faith by the board of directors of Holdings or the Company) not in
excess of $5,000,000 (provided that the fair market value of any Casa Gallardo Restaurants and of
the Ventura Property sold shall not reduce this amount) during any Fiscal Year or $10,000,000
(provided that the fair market value of any Casa Gallardo Restaurants and of the Ventura Property
sold shall not reduce this amount) in the aggregate on a cumulative basis from the Closing Date;
provided that, in each case under this clause (d), (i) the consideration received
for such assets shall be in an amount at least equal to the fair market value thereof (determined
in good faith by the board of directors of Holdings), (ii) not less than 75% of the consideration
received therefor shall be cash and (iii) the Net Cash Proceeds of such Asset Sale shall be applied
if and to the extent required by subsection 2.4B(iii). Nothing in this subsection 6.7B is intended
to prohibit Holdings or any of the Subsidiaries from conditionally agreeing to dispose of any
assets subject to the prior approval of the Lenders if Holdings or such Subsidiary will not be
subject to any penalties in connection with such agreement in the event that the Lenders (or all of
the Lenders, as the case may require) do not consent to such disposition.



           C.     Acquisitions. Holdings will not, and will not permit any of the Subsidiaries to,
agree to or effect any asset acquisition or stock acquisition except (a) Capital Expenditures
permitted pursuant to subsection 6.5D, and (b) the acquisition of inventory, equipment, furnishings
and other similar assets (not including Stores or real property) in the ordinary course of business
consistent with past practices.




6.7      Sales and Lease-Backs.



           Holdings will not, and will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby Holdings or any Subsidiary shall sell or transfer any property
owned by it in order then or thereafter to lease such property or lease other property that
Holdings or any such Subsidiary intends to use for substantially the same purpose as the property
being sold or transferred (a “Sale-Leaseback”); provided that, so long as
no Event of Default has occurred and is continuing, Holdings and the Subsidiaries may enter into
Sale-Leaseback transactions with respect to property and equipment in an aggregate amount not to
exceed $5,000,000; provided further that (a) the terms of the sales as such
are comparable to terms which could be obtained in arms length sales among unaffiliated
parties not involving Sale-Leaseback transactions, and (b) the terms of the leases as such are
comparable to terms which could be obtained in arms length commercial operating leases among
unaffiliated parties.



53









 





RM Restaurant Holding Corp.
Credit Agreement



6.8      Employee Benefit Plans.


None of Holdings or any ERISA Affiliate will:





       (i)     engage in any “prohibited transaction” within the meaning of Section 406 of ERISA
or Section 4975 of the Code which could result in a material liability for any of Holdings
or the Subsidiaries; or




       (ii)     permit any Guaranteed Pension Plan to incur an “accumulated funding deficiency”,
as such term is defined in Section 302 of ERISA, whether or not such deficiency is or may be
waived; or




       (iii)     fail to contribute to any Guaranteed Pension Plan to an extent which, or
terminate any Guaranteed Pension Plan in a manner which, could result in the imposition of a
lien or encumbrance on the assets of Holdings or the Subsidiaries pursuant to Section 302(f)
or Section 4068 of ERISA; or




       (iv)     permit any Guaranteed Pension Plan to be amended in circumstances requiring the
posting of security pursuant to Section 307 of ERISA or Section 401(a)(29) of the Code; or




       (v)     permit or take any action which would result in the aggregate benefit liabilities
(with the meaning of Section 4001 of ERISA) of all Guaranteed Pension Plans exceeding the
value of the aggregate assets of such Plans, disregarding for this purpose the benefit
liabilities and assets of any such Plan with assets in excess of benefit liabilities.


6.9      Change in Fiscal Year. Holdings will not, and will not permit any of the Subsidiaries
to, effect any change in the end of its Fiscal Year from that set forth in Section 1 hereto.



6.10      Transactions with Affiliates. Holdings will not and will not permit any of the
Subsidiaries to, engage in any transaction with any Affiliate (other than for services as
employees, officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any such Affiliate or, to the
knowledge of Holdings, any corporation, partnership, trust or other entity in which any such
Affiliate has a substantial interest or is an officer, director, trustee or partner, on terms less
favorable to Holdings, Opco or the Subsidiaries than would have been obtainable on an arm’s-length
basis in the ordinary course of business, provided that for so long as no Default or Event
of Default is continuing the foregoing restriction shall not apply to (a) payments by Holdings
and/or the Subsidiaries 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 Holdings (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 Opco or the
Subsidiaries to Holdings to permit Holdings to pay franchise taxes, directors fees and reasonable
accounting, legal and administrative expenses of Holdings (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) when due, in an aggregate amount not to exceed $500,000
in any Fiscal Year, (c) for so long as Opco is a member of a group filing a consolidated or
combined tax return with Holdings or any direct or indirect parent of Holdings, payments by Opco to
Holdings in respect of an allocable portion of the tax liabilities of such


54









 





RM Restaurant Holding Corp.
Credit Agreement



group that is attributable to Opco and the Subsidiaries (“Tax Payments”); provided,
however, that (A) the Tax Payments shall not exceed the lesser of (i) the amount of the
relevant tax (including any penalties and interest) that Opco would owe if Opco were filing a
separate tax return (or a separate consolidated or combined return with the Subsidiaries that are
members of the consolidated or combined group), taking into account any carryovers and carrybacks
of tax attributes (such as net operating losses) of Opco and such Subsidiaries from other taxable
years and (ii) the net amount of the relevant tax that Holdings actually owes to the appropriate
taxing authority and (B) any Tax Payments received from Opco shall be paid over to the appropriate
taxing authority within 30 days of Holdings’ receipt of such Tax Payments or refunded to Opco,
(d) payments of fees, costs and expenses made by Opco 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, (e) payments made by Opco or any Subsidiary to Holdings to permit
Holdings to pay reasonable out of pocket expenses associated with 2009 Transactions which are
incurred and paid by Holdings on or before August 31, 2009 as long as the aggregate amount of such
expenses, together with all fees and expenses incurred by Holdings and/or the Subsidiaries in
connection with the 2009 Transactions, does not exceed $8,500,000 and (f) the issuance of any
Capital Stock or other equity issuances of Holdings to Capstone Consulting LLC pursuant to the
Engagement Letter, or any related documents entered into in connection therewith.




  6.11      Amendments or Waivers of Certain Agreements and Documents.



               (a)     Holdings will not, and will not permit any of the Subsidiaries to, materially amend,
supplement or otherwise modify (pursuant to a waiver or otherwise) the terms and conditions of any
of the Opco Credit Documents, the Existing Senior Notes Documents, or the Senior Secured Note
Documents without the prior written consent of the Administrative Agent, if the effect of such
amendment, supplement or other modification or waiver is to increase the interest rate payable on
the relevant Indebtedness thereunder or increase the cash portion of any interest required to be
paid thereon, change (to earlier dates) any dates upon which payments of principal or interest are
due thereon, increase the obligations of the obligor or obligors thereunder or confer any
additional rights on the holders of the relevant Indebtedness thereunder which would be materially
adverse to Holdings, the Subsidiaries, the Administrative Agent or the Lenders.



               (b)     Holdings will not, and will not permit any of the Subsidiaries to, amend, supplement or
otherwise modify (pursuant to a waiver or otherwise) the terms and conditions of any of the
Revolving Credit Documents if such amendment, supplement or modification would violate the terms of
the Intercreditor Agreement.



  6.12      Business of Holdings.



               (a)     Holdings will not engage in any business activities or have any assets other than (i) its
ownership of 100% of the Capital Stock of Opco, (ii) performing its obligations and activities
incidental thereto under the Loan Documents and under the Opco Credit Documents, (iii) performing
its obligations and activities incidental thereto under the Revolving Credit Documents and the
Senior Secured Note Documents, and (iv) making Restricted Payments to the extent permitted by this
Agreement.



               (b)     Except as permitted under Section 6.1 hereunder, Holdings will not incur, directly or
indirectly, any Indebtedness or any other obligations whatsoever other than (i) under the Loan
Documents, (ii) under the Opco Credit Documents, (iii) guarantee obligations under the Revolving
Credit Documents and the Senior Secured Note Documents, and (iv) obligations not constituting
Indebtedness incurred in the ordinary course of business as a holding company and not otherwise
restricted by this Section 6.12.



55









 





RM Restaurant Holding Corp.
Credit Agreement


SECTION 7.

EVENTS OF DEFAULT




           If any of the following conditions or events (“Events of Default”) shall occur:



 7.1     Failure to Make Payments When Due.



           (i) Failure to pay any installment of principal of any Term Loan when due, whether at stated
maturity, by acceleration, by notice of prepayment or otherwise; or (ii) failure to pay any
interest on any Term Loan or any fee or any other amount (other than an amount referred to in
clause (i) above) due under this Agreement or any other Loan Document within three (3) Business
Days after the date due therefor; or



 7.2     Default in Other Agreements.



           (i)     Failure of Holdings or any of the Subsidiaries to pay when due (a) any principal of or
interest on any Indebtedness (other than Indebtedness referred to in subsection 7.1 and
Indebtedness under the Revolving Credit Agreement) in a principal amount outstanding of $3,000,000
or more or (b) any Contingent Obligation (other than a Contingent Obligation in respect of
Indebtedness under the Revolving Credit Agreement) in a principal amount of $3,000,000 or more, in
each case of clause (a) and (b) above beyond the end of any grace period provided therefor; (ii)
breach or default by Holdings or any of the Subsidiaries with respect to any other term of (a) any
evidence of any Indebtedness (other than Indebtedness under the Revolving Credit Agreement) in a
principal amount of $3,000,000 or more or any Contingent Obligation (other than a Contingent
Obligation in respect of Indebtedness under the Revolving Credit Agreement) in a principal amount
of $3,000,000 or more, (b) any loan agreement, mortgage, indenture or other agreement relating to
such Indebtedness or Contingent Obligation(s), or the occurrence of any other event, condition or
circumstance in respect of any such Indebtedness or Contingent Obligation(s) if in any case under
this clause (ii) the effect of such breach or default or event, condition or circumstance is to
cause, or to permit the holder or holders of such Indebtedness or Contingent Obligation(s) (or a
trustee on behalf of such holder or holders) to cause, that Indebtedness or Contingent
Obligation(s) to become or be declared due and payable (or redeemable) prior to its stated maturity
or the stated maturity of any underlying obligation, as the case may be (upon the giving or
receiving of notice, lapse of time, both, or otherwise); or (iii) breach or default by Holdings or
any of the Subsidiaries with respect to any term of the Revolving Credit Agreement if the effect of
such breach or default or event, condition or circumstance is to cause the Indebtedness under the
Revolving Credit Agreement to become or be declared due and payable prior to its stated maturity;
provided that clauses (ii) and (iii) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the assets securing such Indebtedness.



  7.3     Breach of Certain Covenants.



           Failure of Holdings or any of the Subsidiaries to perform or comply with any term, covenant or
condition contained in subsection 2.4, subsection 5.9 or Section 6 of this Agreement; or



 7.4     Breach of Representation or Warranty.



           Any representation, warranty, certification or other statement made by Holdings or any of the
Subsidiaries in this Agreement or any other Loan Document or in any statement or certificate at any
time given by Holdings or any of the Subsidiaries in writing pursuant hereto or thereto or in
connection herewith or therewith shall be false or misleading in any material respect on the date
as of which it is made; or



56









 





RM Restaurant Holding Corp.
Credit Agreement


  7.5    Other Defaults Under Loan Documents.



           Holdings or any of the Subsidiaries shall default in the performance of or compliance with any
term, covenant or condition contained in this Agreement or any of the other Loan Documents, other
than any such term referred to in subsection 7.3, and such default shall not have been remedied or
waived within thirty (30) days after the occurrence of such default; or



 7.6    Involuntary Bankruptcy; Appointment of Receiver, etc.



           (i)     A court having jurisdiction in the premises shall enter a decree or order for relief in
respect of Holdings or any of the Subsidiaries in an involuntary case under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, which
decree or order is not stayed; or any other similar relief shall be granted under any applicable
federal or state law; or (ii) an involuntary case shall be commenced against Holdings or any of the
Subsidiaries under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other
officer having similar powers over Holdings or any of the Subsidiaries, or over all or a
substantial part of its property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other custodian of Holdings or any of
the Subsidiaries for all or a substantial part of its property; or a warrant of attachment,
execution or similar process shall have been issued against any substantial part of the property of
Holdings or any of the Subsidiaries, and any such event described in this clause (ii) shall
continue for sixty (60) days unless dismissed, bonded or discharged; or



  7.7    Voluntary Bankruptcy: Appointment of Receiver, etc.



           (i)     Holdings or any of the Subsidiaries shall have an order for relief entered with respect to
it or commence a voluntary case under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case,
under any such law, or shall consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property; or Holdings or any of the
Subsidiaries shall make any assignment for the benefit of creditors; or (ii) Holdings or any of the
Subsidiaries shall be unable, or shall fail generally, or shall admit in writing its inability, to
pay its debts as such debts become due; or the board of directors of Holdings or any of the
Subsidiaries (or any committee thereof) shall adopt any resolution or otherwise authorize any
action to approve any of the actions referred to in clause (i) above or this clause (ii); or



  7.8    Judgments and Attachments.



           Any money judgment, writ or warrant of attachment or similar process involving in the
aggregate at any time an amount in excess of $1,000,000 (in either case not adequately covered by
insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage) shall
be entered or filed against Holdings or any of the Subsidiaries or any of their respective assets
and shall remain undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days; or



  7.9    Dissolution.



           Any order, judgment or decree shall be entered against Holdings or any of the Subsidiaries
decreeing the dissolution or split up of Holdings or that Subsidiary and such order shall remain
undischarged or unstayed for a period in excess of sixty (60) days; or



57









 





RM Restaurant Holding Corp.
Credit Agreement


  7.10    Employee Benefit Plans.



           There shall occur one or more ERISA Events which, individually or in the aggregate, result in
or could reasonably be expected to result in liability of Holdings, any of the Subsidiaries or any
of their respective ERISA Affiliates in excess of $1,000,000 during the term hereof; or (ii) there
exists any fact or circumstance that reasonably could be expected to result in the imposition of a
Lien or security interest under Section 412(n) of the Code or under ERISA; or



  7.11    Change of Control.



           A Change of Control.


THEN (i) upon the occurrence of any Event of Default described in subsection 7.6 or 7.7, each of
(a) the unpaid principal amount of and accrued interest on the Term Loans and (b) all other
Obligations accrued hereunder or under any other Loan Document shall automatically become
immediately due and payable, without presentment, demand, protest or other requirements of any
kind, all of which are hereby expressly waived by Holdings, and the Administrative Agent and the
Lenders shall have the right to take any and all actions and exercise any and all remedies
available to a secured party under the Loan Documents or applicable law or in equity and (ii) upon
the occurrence and during the continuation of any other Event of Default, the Administrative Agent
may, and upon the written request of the Requisite Lenders shall, declare all or any portion of the
amounts described in clauses (a) and (b) above to be, and the same shall forthwith become,
immediately due and payable, and the Administrative Agent and the Lenders shall have the right to
take any and all actions and exercise any and all remedies available to a secured party under the
Loan Documents or applicable law or in equity.




           Notwithstanding anything contained in the preceding paragraph, if at any time within sixty
(60) days after an acceleration of the Term Loans pursuant to such paragraph Holdings shall pay all
arrears of interest and all payments on account of principal which shall have become due otherwise
than as a result of such acceleration (with interest on principal and, to the extent permitted by
law, on overdue interest, at the rates specified in this Agreement) and all Defaults and Events of
Default (other than non-payment of the principal of and accrued interest on the Term Loans, in each
case which is due and payable solely by virtue of acceleration) shall be remedied or waived
pursuant to subsection 9.5, then the Requisite Lenders, by written notice to Holdings, may at their
option rescind and annul such acceleration and its consequences; but such action shall not affect
any subsequent Default or Event of Default or impair any right consequent thereon. The provisions
of this paragraph are intended merely to bind the Lenders to a decision which may be made at the
election of the Requisite Lenders and are not intended to benefit Holdings and do not grant
Holdings the right to require the Lenders to rescind or annul any acceleration hereunder or
preclude the Administrative Agent or the Lenders from exercising any of the rights or remedies
available to them under any of the Loan Documents, even if the conditions set forth in this
paragraph are met.



SECTION 8.

ADMINISTRATIVE AGENT




  8.1    Appointment.



           A.     Appointment Authority. Each of the Lenders hereby irrevocably appoints WTFSB as
the Administrative Agent hereunder and under the other Loan Documents and authorizes WTFSB, in such
capacities, to take such actions on its behalf and to exercise such powers as are delegated to
WTFSB in such capacities by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto. The Administrative Agent agrees to act upon the express
conditions contained in this



58









 





RM Restaurant Holding Corp.
Credit Agreement




Agreement and the other Loan Documents, as applicable. In performing its functions and duties
under this Agreement, the Administrative Agent shall act solely as an agent of the Lenders and does
not assume and shall not be deemed to have assumed any obligation towards or relationship of agency
or trust with or for Holdings or any of the Subsidiaries. The provisions of this Section are
solely for the benefit of the Administrative Agent, the Lenders and Holdings and the Subsidiaries
shall not have rights as a third party beneficiary of any of such provisions. Notwithstanding
anything to the contrary in this Agreement, in the event that at any time there shall be a Lender
or group of affiliated Lenders which shall constitute the Requisite Lenders, the Administrative
Agent shall act only in accordance with the consent of such Lender or group of affiliated Lenders
constituting the Requisite Lenders in granting any approvals, making any requests on Holdings,
making any determinations that items are performed to its satisfaction or exercising any of its
discretion under the Loan Documents (other than making determinations relating to interest rates);
provided that following the Closing Date such consent of such Lender or group of affiliated Lenders
constituting the Requisite Lenders shall not be required for non-material, routine and
administrative actions that the Administrative Agent is permitted to take under the Loan Documents.



  8.2    Rights as a Lender.



           Any Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not an
Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the
context otherwise requires, include any Person serving as the Administrative Agent hereunder in
their individual capacity. Such Person and its Affiliates may accept deposits from, lend money to,
act as the financial advisor or in any other advisory capacity for and generally engage in any kind
of business with Holdings or any of the Subsidiaries or any of their Affiliates as if such Person
were not the Administrative Agent hereunder and without any duty to account therefor to the
Lenders.



  8.3    Exculpatory Provisions.



           The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein and in the other Loan Documents. Without limiting the generality of the foregoing,
the Administrative Agent (i) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default or an Event of Default has occurred and is continuing, (ii) shall
not have any duty to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that
the Administrative Agent is required to exercise as directed in writing by the Requisite Lenders
(or such other number or percentage of the relevant Lenders as shall be necessary under the
circumstances as provided in subsection 9.5); provided that no Agent shall be
required to take any action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and
(iii) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
Holdings or any of its Affiliates that is communicated to or obtained by the person serving as an
Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or
not taken by it with the consent or at the request of the Requisite Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as provided in
subsection 9.5) or in the absence of its own gross negligence or willful misconduct. No Agent
shall be deemed to have knowledge of any Default or Event of Default unless and until notice
thereof is given to the Administrative Agent in writing by Holdings or a Lender. The
Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this Agreement or any
other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default or



59









 





RM Restaurant Holding Corp.
Credit Agreement




Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement or any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Section 3 or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.



  8.4    Reliance by the Administrative Agent.



           The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, posting or other distribution) believed by it to be
genuine and to have been signed, sent or otherwise authenticated by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any liability for
relying thereon. In determining compliance with any condition hereunder to the making of any Term
Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent
may presume that such condition is satisfactory to such Lender unless the Administrative Agent
shall have received notice to the contrary from such Lender prior to the making of such Term Loan.
The Administrative Agent may consult with legal counsel (who may be counsel for Holdings or its
Affiliates), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.



  8.5    Delegation of Duties.



           The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of subsection 8.3 shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as the Administrative Agent.



  8.6    Resignation of Administrative Agent.



           The Administrative Agent may at any time give notice of its resignation to the Lenders and
Holdings. Upon receipt of any such notice of resignation, the Requisite Lenders shall have the
right, in consultation with Holdings (provided that at any time during the occurrence and
continuance of an Event of Default no such consultation shall be required) to appoint a successor
Administrative Agent, as applicable, which shall be a bank with an office in New York, or an
Affiliate of any such bank with an office in New York. If no such successor shall have been so
appointed by the Requisite Lenders and shall have accepted such appointment within sixty (60) days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent, as applicable, may on behalf of the Lenders, appoint a successor
Administrative Agent, as applicable, meeting the qualifications set forth above; provided
that if the Administrative Agent shall notify Holdings and the Lenders that no such
successor is willing to accept such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (i) the retiring Administrative Agent, as applicable,
shall be discharged from its duties and obligations hereunder and under the other Loan Documents
and (ii) all payments, communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender directly, until such time as the
Requisite Lenders appoint a successor Administrative Agent, as applicable, as provided for above in
this paragraph. Upon the acceptance of a successor’s appointment as the Administrative Agent
hereunder, such successor shall



60









 





RM Restaurant Holding Corp.
Credit Agreement




succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the Loan Documents. The fees
payable by Holdings to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between Holdings and such successor. After the retiring
Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of
this Section 8 and subsection 9.2 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative Agent was acting in
such capacity.



  8.7    Non-Reliance on Agent and Other Lenders.



           Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender also acknowledges that it shall, independently and
without reliance upon the Administrative Agent or any other Lender or any of their Related Parties
and based on such documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document furnished hereunder or
thereunder.



  8.8    Withholding.



           To the extent required by any applicable law, the Administrative Agent may withhold from any
interest payment to any Lender an amount equivalent to any applicable withholding tax. If the
Internal Revenue Service or any other Governmental Authority asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid to or for the account of any
Lender because the appropriate form was not delivered or was not properly executed or because such
Lender failed to notify the Administrative Agent of a change in circumstance which rendered the
exemption from, or reduction of, withholding tax ineffective or for any other reason, such Lender
shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the
Administrative Agent as tax or otherwise, including any penalties or interest and together with all
expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred.



SECTION 9.

MISCELLANEOUS




  9.1    Assignments and Participations in Term Loans.



           A.     Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that Holdings may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender and the
Administrative Agent and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of
subsection 9.1B, (ii) by way of participation in accordance with the provisions of subsection 9.1 D
or (iii) by way of pledge or assignment of a security interest in accordance with the provisions of
subsection 9.1F (and any other attempted assignment or transfer by any party hereto shall be null
and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection 9.1D and, to the extent expressly contemplated
hereby, the Related Parties of the Administrative Agent and the Lenders and any other
Indemnitee) any legal or equitable right, remedy or claim under or by reason of this Agreement.



61









 





RM Restaurant Holding Corp.
Credit Agreement


           B.     Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement; provided
that




       (i)     except in the case of an assignment of the entire remaining amount of the assigning
Lender’s Term Loans or in the case of an assignment to a Lender or an Affiliate of a Lender
or an Approved Fund with respect to a Lender, the aggregate amount of the Term Loans subject
to each such assignment (determined as of the date of the Assignment Agreement with respect
to such assignment is recorded by the Administrative Agent) shall not be less than
$2,500,000 or an integral multiple of $1,000,000 in excess thereof, unless the
Administrative Agent shall otherwise consent (such consent not to be unreasonably withheld
or delayed and such approval to be deemed to have been given if a response is not received
within five (5) Business Days from the date on which request for approval was received by
the applicable Person);




       (ii)     each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with respect to the
Term Loans assigned; and




       (iii)     the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment Agreement to be manually executed and delivered, together with, except
in the case of an assignment to an Affiliate of a Lender or an Approved Fund with respect to
a Lender, a processing and recordation fee of $3,500, and the Eligible Assignee, if it shall
not be a Lender, and if required, shall deliver to the Administrative Agent an
Administrative Questionnaire and, if required, applicable tax forms.



           Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection
9.1C, from and after the effective date specified in each Assignment Agreement, the Eligible
Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment Agreement, have the rights and obligations of a Lender under this Agreement, and
the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment
Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment
Agreement covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of
subsections 2.7 and 9.2 with respect to facts and circumstances occurring prior to the effective
date of such assignment. Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in accordance
with subsection 9.1 D.



           C.     The Register. The Administrative Agent, acting solely for this purpose as an agent
of Holdings, shall maintain at one of its offices a copy of each Assignment Agreement delivered to
it and a register for the recordation of the names and addresses of the Lenders, and principal
amounts of the Term Loans owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive absent manifest error, and
Holdings, the Administrative Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for inspection by Holdings
and the Lenders at any reasonable time and from time to time upon reasonable prior notice.



62









 





RM Restaurant Holding Corp.
Credit Agreement


           D.     Participations. Any Lender may at any time, without the consent of, or notice to,
Holdings or the Administrative Agent, sell participations to any Person (other than a natural
person or Holdings or any of Holdings’ Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all
or a portion of the Term Loans owing to it); provided that




       (i)     such Lender’s obligations under this Agreement shall remain unchanged,




       (ii)     such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, and




       (iii)     Holdings, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement.



           Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender shall not, without the consent of the Participant, agree
to any amendment, modification or waiver with respect to any action (i) effecting the extension of
the final maturity of the Term Loan allocated to such participation, or (ii) effecting a reduction
of the principal amount of or the rate of interest payable on any Term Loan or any fee allocated to
such participation. Subject to subsection 9.1E, Holdings agrees that each Participant shall be
entitled to the benefits of subsection 2.7 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to subsection 9.1B. To the extent permitted by law,
each Participant also shall be entitled to the benefits of subsection 9.3 as though it were a
Lender, provided such Participant agrees to be subject to subsection 9.4 as though it were a
Lender.



           E.     Limitations Upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under subsection 2.7 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with Holdings’ prior written consent. A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of
subsection 2.7E unless Holdings is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of Holdings, to comply with the provisions of subsection 2.7E
as though it were a Lender.



           F.     Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided that no such pledge or assignment shall release such Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto. Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may
create a security interest in all or any portion of the Term Loans owing to it and the Term Notes,
if any, held by it to the trustee for holders of obligations owed, or securities issued, by such
Fund as security for such obligations or securities; provided that unless and until
such trustee actually becomes a Lender in compliance with the other provisions of this subsection
9.1, (i) no such pledge shall release the pledging Lender from any of its obligations under this
Agreement and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender
under this Agreement and the Term Notes even though such trustee may have acquired ownership rights
with respect to the pledged interest through foreclosure or otherwise.



63









 





RM Restaurant Holding Corp.
Credit Agreement


           G.     SPV Lender. Notwithstanding anything to the contrary contained herein, any Lender
(a “Granting Lender”) may grant to a special purpose funding vehicle (a “SPV”),
identified as such in writing from time to time by the Granting Lender to the Administrative Agent
and Holdings, the option to provide to Holdings all or any part of any Term Loan that such Granting
Lender would otherwise be obligated to make Holdings pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPV to make any Term Loan and
(ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of
such Loan, the Granting Lender shall be obligated to make such Term Loan pursuant to the terms
hereof. Each party hereto hereby agrees that no SPV shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall
survive the termination of this Agreement) that, prior to the date that is one year and one day
after the payment in full of all outstanding commercial paper or other senior indebtedness of any
SPV, it shall not institute against, or join any other person in instituting against, such SPV any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of
the United States or any State thereof. In addition, notwithstanding anything to the contrary
contained in this subsection 9.1, any SPV may (i) with notice to, but without the prior written
consent of, Holdings and the Administrative Agent and without paying any processing fee therefore,
assign all or a portion of its interests in any Term Loans to the Granting Lender or to any
financial institutions (consented to by Holdings and the Administrative Agent) providing liquidity
and/or credit support to or for the account of such SPV to support the funding or maintenance of
Term Loans and (ii) disclose on a confidential basis any non-public information relating to its
Term Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPV. This subsection 9.1G may not be amended without the
written consent of the SPV. Notwithstanding anything to the contrary in this Agreement, no SPV
shall be entitled to any greater rights under subsection 2.7E than its Granting Lender would have
been entitled to absent the use of such SPV.



  9.2    Expenses; Indemnity; Damage Waiver.



           A.     Costs and Expenses. Holdings shall, jointly and severally, pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its respective Affiliates,
including the reasonable fees, charges and disbursements of counsel for the Administrative Agent in
connection with the syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the other Loan Documents
or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated); (ii) all out-of-pocket expenses
incurred by the Administrative Agent or any Lender, including the fees, charges and disbursements
of any counsel for the Administrative Agent or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement and the other Loan Documents, including
its rights under this subsection 9.2A, or in connection with the Term Loans made hereunder,
including all such out-of-pocket expenses incurred during any workout, Event of Default,
restructuring or negotiations in respect of such Term Loans; and (iii) all reasonable out-of-pocket
expenses incurred by any Lender or group of affiliated Lenders that shall constitute the Requisite
Lenders, including the reasonable fees, charges and disbursements of counsel to such Lender or
Lenders, in connection with any amendments, modifications or waivers of the provisions hereof.



           B.     Indemnification by Holdings. Holdings shall, jointly and severally, indemnify the
Administrative Agent (and any sub-Agent thereof), each Lender and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this



64









 





RM Restaurant Holding Corp.
Credit Agreement




Agreement, any other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Term
Loan or the use of the proceeds therefrom, or (iii) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party thereto (including any claim
under any Environmental Laws); provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from primarily the gross negligence or willful misconduct of such Indemnitee.



           C.     Reimbursement by the Lenders. To the extent that Holdings fails to pay any amount
required under subsection 9.2A or 9.2B to be paid by it to any Agent (or any sub-Agent thereof) or
any Related Party of any of the foregoing, each Lender severally agrees to pay to the
Administrative Agent (or any such sub-Agent) or such Related Party, as the case may be, such
Lender’s Pro Rata Share (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent (or any such sub-Agent) in its capacity as
such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or
any such sub-Agent) in connection with such capacity. The obligations of the Lenders under this
subsection 9.2C are subject to the provisions of subsection 9.12.



           D.     Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, Holdings shall not assert, and hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Term Loan or the use of the proceeds thereof. No Indemnitee
referred to in subsection 9.2B above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.



           E.     Payments. All amounts due under this subsection 9.2 shall be payable promptly
after demand therefor.



  9.3    Right of Set-Off.



           Without limitation of any other rights or remedies of the Administrative Agent or the Lenders,
if an Event of Default shall have occurred and be continuing, the Administrative Agent, each Lender
and each of their respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by the Administrative Agent, Lender or any
such Affiliate to or for the credit or the account of Holdings against any and all of the
obligations of Holdings now or hereafter existing under this Agreement or any other Loan Document
to the Administrative Agent or Lender, irrespective of whether or not the Administrative Agent or
Lender shall have made any demand under this Agreement or any other Loan Document and although such
obligations of Holdings may be contingent or unmatured or are owed to a branch or office of the
Administrative Agent or Lender different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of the Administrative Agent, Lender and their
respective Affiliates under this subsection 9.3 are in addition to other rights and remedies



65









 





RM Restaurant Holding Corp.
Credit Agreement


(including other rights of setoff) which the Administrative Agent, Lender or their respective
Affiliates may have. The Administrative Agent and Lender agrees promptly to notify in writing
Holdings and the Administrative Agent promptly after any such setoff and application;
provided that the failure to give such notice shall not affect the validity of such
setoff and application.



9.4      Sharing of Payments by Lenders.



           If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of its Term Loans or other obligations
hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of
its Term Loans and accrued interest thereon or other such obligations greater than its Pro Rata
Share thereof as provided herein, then the Lender receiving such greater proportion shall
(a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Term Loans and such other obligations of the other Lenders, or make such
other adjustments as shall be equitable, to the end that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Term Loans and other amounts owing them; provided that
(i) if any such participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to (x) any payment made by Holdings pursuant to and in accordance with the
express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Term Loans to any assignee or participant,
other than to Holdings or any Subsidiary thereof (as to which the provisions of this paragraph
shall apply). Holdings consents to the foregoing and agrees, to the extent it may effectively do
so under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against each of Holdings rights of setoff and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of Holdings in the amount
of such participation.



9.5      Amendments and Waivers.



           A.     Amendment and Waivers. No amendment, modification, termination or waiver of any
provision of this Agreement or of the Term Notes, or consent to any departure by Holdings or any of
the Subsidiaries therefrom, shall in any event be effective without the written concurrence of the
Requisite Lenders; provided that any such amendment, modification, termination,
waiver or consent which:




	(a)	 	reduces or forgives the principal amount of any of the Term Loans;

	 
	(b)	 	reduces or increases the percentage specified in the definition of the “Requisite Lenders”
(it being understood that, with the consent of the Requisite Lenders, additional extensions of
credit permitted pursuant to this Agreement may be included in the definition of the
“Requisite Lenders” on substantially the same basis as the Term Loans are included on the
Closing Date);

	 
	(c)	 	changes in any manner any provision of this Agreement which, by its terms, expressly requires
the approval or concurrence of all the Lenders;

	 
	(d)	 	postpones the scheduled final maturity date of any of the Term Loans;

	 
	(e)	 	postpones the date or reduces the amount of any scheduled payment (but not prepayment) of
principal of any of the Term Loans;

	 
	(f)	 	postpones the date on which any interest or any fees are payable;





66









 





RM Restaurant Holding Corp.
Credit Agreement



	(g)	 	decreases the interest rate borne by any of the Term Loans (other than any waiver of any
increase in the interest rate applicable to any of the Term Loans pursuant to subsection 2.2E)
or the amount of any fees payable hereunder;

	 
	(h)	 	changes in any manner the provisions contained in subsection 7.1 or this subsection 9.5;





in each case, shall be effective only if evidenced by a writing signed by or on behalf of all the
Lenders to whom Obligations are owed being directly affected by such amendment, modification,
termination, waiver or consent (the consent of the Requisite Lenders not being required for any
such change).




           In addition, no amendment, modification, termination or waiver of any provision of Section 8
or of any other provision of this Agreement which, by its terms, expressly requires the approval or
concurrence of the Administrative Agent shall be effective without the written concurrence of the
Administrative Agent.



           The Administrative Agent may, but shall have no obligation to, with the concurrence of any
Lender, execute amendments, modifications, waivers or consents on behalf of that Lender. Any
waiver or consent shall be effective only in the specific instance and for the specific purpose for
which it was given. No notice to or demand on Holdings in any case shall entitle Holdings to any
other or further notice or demand in similar or other circumstances. Any amendment, modification,
termination, waiver or consent effected in accordance with this subsection 9.5 shall be binding
upon each Lender at the time outstanding, each future Lender and, if signed by Holdings, on
Holdings.



           B.     Non-Consenting Lenders. Each Lender grants (x) to the Administrative Agent and any
Lender or group of affiliated Lenders which constitutes Requisite Lenders the right to purchase all
(but not less than all) of such Lender’s Term Loans owing to it and the Term Notes held by it and
all of its rights and obligations hereunder and under the other Loan Documents, and (y) to Holdings
the right to cause an assignment of all (but not less than all) of such Lender’s Term Loans owing
to it, its participations in the Term Notes held by it and all of its rights and obligations
hereunder and under the other Loan Documents to Eligible Assignees, which right may be exercised by
the Administrative Agent, any Lender or group of affiliated Lenders which constitutes the Requisite
Lenders or Holdings, as the case may be, if such Lender (a “Non-Consenting Lender”) refuses
to execute any amendment, waiver or consent which requires the written consent of Lenders other
than Requisite Lenders and to which Requisite Lenders, the Administrative Agent and Holdings have
otherwise agreed; provided that such Non-Consenting Lender shall receive, in
connection with such assignment payment equal to the aggregate amount of outstanding Term Loans
owed to such Lender (together with all accrued and unpaid interest, fees and all other amounts
(other than indemnities) owed to such Lender). Each Lender agrees that if the Administrative
Agent, any Lender or group of affiliated Lenders which constitutes Requisite Lenders or Holdings,
as the case may be, exercises their option under this paragraph, it shall promptly execute and
deliver all agreements and documentation necessary to effectuate such assignment as set forth in
subsection 9.1. Holdings shall be entitled (but not obligated) to execute and deliver such
agreements and documentation on behalf of such Non-Consenting Lender and any such agreements and/or
documentation so executed by Holdings shall be effective for all purposes of documenting an
assignment pursuant to subsection 9.1.



9.6      Independence of Covenants.



           All covenants hereunder shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would be permitted by an
exception to, or would otherwise be within the limitations of, another such covenant shall not
avoid the occurrence of an Default or Event of Default if such action is taken or condition exists.



67









 





RM Restaurant Holding Corp.
Credit Agreement


9.7      Notices.



           A.     Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection 9.7B below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as
follows: (i) if to Holdings, to RM Restaurant Holding Corp., 5660 Katella Avenue, Suite 100,
Cypress, California 90630, Attention: Steven L. Tanner, Chief Financial Officer (Facsimile No.
562-346-1325; Telephone No. 562-346-1200); (ii) if to the Administrative Agent, to WTFSB at Rodney
Square North, 1100 North Market Street, Wilmington, DE 19890, Attention: James A. Hanley, and (iii)
if to a Lender, to it at its address (or facsimile number) set forth in its Administrative
Questionnaire. Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent by facsimile shall
be deemed to have been given when sent (except that, if not given during normal business hours for
the recipient, shall be deemed to have been given at the opening of business on the next business
day for the recipient). Notices delivered through electronic communications to the extent provided
in subsection 9.7B below shall be effective as provided in subsection 9.7B.



           B.     Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and Internet
or intranet websites) pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices to any Lender pursuant to subsection 2.1 if
such Lender has notified the Administrative Agent that it is incapable of receiving notices under
such subsection by electronic communication. The Administrative Agent or Holdings may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of such procedures may
be limited to particular notices or communications. Unless the Administrative Agent otherwise
prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received
upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return
receipt requested” function, as available, return e-mail or other written acknowledgment);
provided that if such notice or other communication is not sent during the normal
business hours of the recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next business day for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be deemed received upon the deemed
receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the website address
therefor.



           C.     Chance of Address, Etc. Any party hereto may change its address or facsimile
number for notices and other communications hereunder by notice to the other parties hereto.



9.8      Survival of Representations, Warranties and Agreements.



           A.     All representations, warranties and agreements made herein shall survive the execution and
delivery of this Agreement and the making of the Term Loans hereunder.



           B.     Notwithstanding anything in this Agreement or implied by law to the contrary, the
agreements of Holdings set forth in subsections 2.7, 9.2 and 9.3 and the agreements of the Lenders
set forth in subsections 8.4, 9.3, 9.4 and 9.18 shall survive the payment of the Term Loans and the
termination of this Agreement.



68









 





RM Restaurant Holding Corp.
Credit Agreement


9.9      Failure or Indulgence Not Waiver; Remedies Cumulative.



           No failure or delay on the part of any Agent or any Lender in the exercise of any power, right
or privilege hereunder or under any other Loan Document shall impair such power, right or privilege
or be construed to be a waiver of any default or acquiescence therein, nor shall any single or
partial exercise of any such power, right or privilege preclude other or further exercise thereof
or of any other power, right or privilege. All rights and remedies existing under this Agreement
and the other Loan Documents are cumulative to, and not exclusive of, any rights or remedies
otherwise available.



9.10      Marshalling; Payments Set Aside.



           Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor
of Holdings or any other party or against or in payment of any or all of the Obligations. To the
extent that Holdings makes a payment or payments to the Administrative Agent or the Lenders (or to
the Administrative Agent for the benefit of the Lenders), or any Agent or the Lenders enforce any
security interests or exercise their rights of setoff, and such payment or payments or the proceeds
of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any
other party under any bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and
continued in full force and effect as if such payment or payments had not been made or such
enforcement or setoff had not occurred.



9.11      Severability.



           In case any provision in or obligation under this Agreement or the Term Notes shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.



9.12      Obligations Several; Independent Nature of the Lenders’ Rights.



           The obligations of the Lenders hereunder are several and no Lender shall be responsible for
the obligations of any other Lender hereunder. Nothing contained herein or in any other Loan
Document, and no action taken by the Lenders pursuant hereto or thereto, shall be deemed to
constitute the Lenders as a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its rights arising out
of this Agreement and it shall not be necessary for any other Lender to be joined as an additional
party in any proceeding for such purpose.



9.13      Maximum Amount.



           A. It is the intention of Holdings and the Lenders to conform strictly to the usury and
similar laws relating to interest from time to time in force, and all agreements between Holdings
and the Subsidiaries and the Lenders, whether now existing or hereafter arising and whether oral or
written, are hereby expressly limited so that in no contingency or event whatsoever, whether by
acceleration of maturity hereof or otherwise, shall the amount paid or agreed to be paid in the
aggregate to the Lenders as interest (whether or not designated as interest, and including any
amount otherwise designated but deemed to constitute interest by a court of competent jurisdiction)
hereunder or under the other Loan Documents or in any other agreement given to secure the
Indebtedness or obligations of Holdings to the Lenders, or in any other document evidencing,
securing or pertaining to the Indebtedness evidenced



69









 





RM Restaurant Holding Corp.
Credit Agreement




hereby, exceed the maximum amount permissible under applicable usury or such other laws (the
“Maximum Amount”). If under any circumstances whatsoever fulfillment of any provision
hereof, or any of the other Loan Documents, at the time performance of such provision shall be due,
shall involve exceeding the Maximum Amount, then, ipso facto, the obligation to be fulfilled shall
be reduced to the Maximum Amount. For the purposes of calculating the actual amount of interest
paid and/or payable hereunder in respect of laws pertaining to usury or such other laws, all sums
paid or agreed to be paid to the holder hereof for the use, forbearance or detention of the
Indebtedness of Holdings evidenced hereby, outstanding from time to time shall, to the extent
permitted by Applicable Law, be amortized, pro-rated, allocated and spread from the date of
disbursement of the proceeds of the Term Notes until payment in full of all of such Indebtedness,
so that the actual rate of interest on account of such Indebtedness is uniform through the term
hereof. The terms and provisions of this subsection 9.13 shall control and supersede every other
provision of all agreements between Holdings or any endorser of the Term Notes and the Lenders.



           B. If under any circumstances any Lender shall ever receive an amount which would exceed the
Maximum Amount, such amount shall be deemed a payment in reduction of the principal amount of the
Term Loans and shall be treated as a voluntary prepayment under subsection 2.4B(i) and shall be so
applied in accordance with subsection 2.4 or if such excessive interest exceeds the unpaid balance
of the Term Loans and any other Indebtedness of Holdings in favor of such Lender, the excess shall
be deemed to have been a payment made by mistake and shall be promptly refunded to Holdings.



9.14      Headings.



           Section and subsection headings in this Agreement are included herein for convenience of
reference only and shall not constitute a part of this Agreement for any other purpose or be given
any substantive effect.



9.15      Governing Law.



           THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.



9.16      Consent to Jurisdiction and Service of Process.



           A.      SUBMISSION TO JURISDICTION. HOLDINGS IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
SITTING IN NEW YORK CITY AND OF THE UNITED STATES DISTRICT COURT SITTING IN NEW YORK CITY, AND ANY
APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF
THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT
A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY AGENT OR ANY LENDER MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING



70









 





RM Restaurant Holding Corp.
Credit Agreement




RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST HOLDINGS OR ITS PROPERTIES IN
THE COURTS OF ANY JURISDICTION.



           B.      WAIVER OF VENUE. HOLDINGS IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY COURT REFERRED TO IN SUBSECTION 9.16A. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



           C.     Service of Process. Each party hereto irrevocably consents to service of process
in the manner provided for notices in subsection 9.7. Nothing in this Agreement shall affect the
right of any party hereto to serve process in any other manner permitted by applicable law.



9.17      Waiver of Jury Trial.



           EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SUBSECTION.



9.18      Confidentiality.



           Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to its Affiliates and
to its and its Affiliates’ respective partners, directors, officers, employees, advisors and
representatives (it being understood that the Persons to whom such disclosure is made shall be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority (including any
self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process,
(d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or
under any other Loan Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this subsection 9.18, to (i) any assignee
or pledgee of or Participant in, or any prospective assignee or pledgee of or Participant in, any
of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty
(or its advisors) to any swap or derivative transaction relating to Holdings and its obligations,
(g) with the written consent of Holdings (such consent not to be unreasonably withheld or delayed)
or (h) to the extent such Information becomes publicly available other than as a result of a breach
of this subsection 9.18.



71









 





RM Restaurant Holding Corp.
Credit Agreement


           For purposes of this subsection 9.18 “Information” means all information received from
Holdings or any of the Subsidiaries relating to Holdings or any of the Subsidiaries or any of their
respective businesses, other than any such information that is available to any Agent or any Lender
on a nonconfidential basis prior to disclosure by Holdings; provided that, in the
case of information received from Holdings after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this subsection 9.18 shall be considered to have
complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information.



9.19      Counterparts; Integration; Effectiveness; Electronic Execution.



           A.     Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. This Agreement shall become effective upon the satisfaction
of the conditions precedent set forth in Section 3 and when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties hereto required
pursuant to Section 3, and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed counterpart of a
signature page of this Agreement or any document or instrument delivered in connection herewith by
facsimile or electronic mail shall be effective as delivery of a manually executed counterpart of
this Agreement or such other document or instrument, as applicable.



           B.     Electronic Execution of Assignments. The words “execution,” “signed,” “signature,”
and words of like import in any Assignment Agreement shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or the use of a paper-based
record keeping system, as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




72









 





RM Restaurant Holding Corp.
Credit Agreement


           IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date first written
above.



	 	 	 	 	 
	           HOLDINGS:
	 	RM RESTAURANT HOLDING CORP.
	 
	 	 
	 	 

	 
	 

	 	By:
	 	 

	 


	 	 
	 	 
	 


	 	 
	 	  Name: Steve Tanner

	 


	 	 
	 	  Title: Chief Financial Officer







RM Restaurant Holding Credit Agreement signature page




 









 





RM Restaurant Holding Corp.
Credit Agreement


	 	 	 	 	 
	ADMINISTRATIVE AGENT 
AND LENDERS:
	 	
WILMINGTON TRUST FSB,
	 	 	as Administrative Agent
	 
	 	 
	 	 

	 
	 


	 	By:
	 	 

	 


	 	 
	 	 
	 


	 	 
	 	  Name:

	 


	 	 
	 	  Title:







RM Restaurant Holding Credit Agreement signature page




 









 





RM Restaurant Holding Corp.
Credit Agreement



	 	 	 
	 


	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS OF
JULY ___, 2009 AMONG RM RESTAURANT HOLDING CORP., THE
LENDERS PARTY HERETO AND WILMINGTON TRUST FSB, AS
ADMINISTRATIVE AGENT







	 	 	 	 	 
	 
	 
	 	COCINA FUNDING CORP., 

L.L.C.
	 
	 	 
	 	 

	 


	 	By: Farallon Capital Management, 

L.L.C., its Manager

	 

	 	 
	 	 

	 


	 	By:
	 	 

	 


	 	 
	 	 
	 


	 	Managing Member







RM Restaurant Holding Credit Agreement signature page




 









 





RM Restaurant Holding Corp.
Credit Agreement



	 	 	 	 	 
	 	 	
SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS OF
JULY __, 2009 AMONG RM RESTAURANT HOLDING CORP., THE
LENDERS PARTY HERETO AND WILMINGTON TRUST FSB, AS
ADMINISTRATIVE AGENT







	 	 	 	 	 
	 
	 
	 	KKR FINANCIAL CLO 2005-2, 

LTD.
	 
	 	 
	 	 

	 


	 	By:
	 	 

	 


	 	 
	 
	 


	 	Name:

	 


	 	Title:
	 	 







RM Restaurant Holding Credit Agreement signature page