**EXHIBIT 10.23**

 

THIRDAMENDMENT

 

This THIRD AMENDMENT, dated as of January 5,2006 (this “ThirdAmendment”), amends that certain AMENDED ANDRESTATED REVOLVING CREDIT AGREEMENT, dated as of March 31, 2004 (asamended, modified or supplemented from time to time, the “CreditAgreement”),by and among (i) REAL MEX RESTAURANTS, INC., formerly known asAcapulco Acquisition Corp., a Delaware corporation (“RealMax”), (ii) ACAPULCORESTAURANTS, INC., a Delaware corporation (“ARI”), (iii) ELTORITO FRANCHISING COMPANY, a Delaware corporation (“ETFI”), (iv) ELTORITO RESTAURANTS, INC., a Delaware corporation (“ETRI”), (v) ACAPULCORESTAURANTS OF ENCINITAS, INC., a California corporation (“AEI”), (vi) TARV, INC.,a California corporation (“TARV”), (vii) ACAPULCO RESTAURANT OFVENTURA, INC., a California corporation (“ARV”), (viii) ACAPULCORESTAURANT OF WESTWOOD, INC., a California corporation (“ARW”), (ix) ACAPULCOMARK CORP., a Delaware corporation (“AMC”), (x) MURRAY PACIFIC, aCalifornia corporation (“MP”), (xi) ALA DESIGN, INC., a Californiacorporation (“ALAD”), (xii) REAL MEX FOODS, INC., formerly known asALA Foods, Inc., a California corporation (“RMF”), (xiii) ACAPULCORESTAURANT OF DOWNEY, INC., a California corporation (“ARD”), (xiv)ACAPULCO RESTAURANT OF MORENO VALLEY, INC., a California corporation (“AMV”),(xv) EL PASO CANTINA, INC., a California corporation (“EPC”, eachof Real Mex, ARI, ETFI, ETRI, AEI, TARV, ARV ARW, AMC, MP, ALAD, RMF, ARD, AMV,and EPC, a “Borrower” and, together, the “OriginalBorrowers”),(xvi) CKR ACQUISITION CORP., a Delaware corporation (“CKR”), and (xvii)CHEVYS RESTAURANTS, LLC, a Delaware limited liability company (“Chevys”,each of CKR and Chevys, an “AdditionalBorrower” and, togetherwith the Original Borrowers, the “Borrowers”), (xviii) the severalfinancial institutions from time to time party to the Credit Agreement aslenders thereunder (the “Lenders”), and (xix) BANK OF AMERICA, N.A.(successor by merger to Fleet National Bank), as the administrative agent forthe Lenders under the Credit Agreement (in such capacity, the “Agent”).

 

WHEREAS, pursuant to the Amendment Agreement,dated as of September 3, 2004 (the “FirstAmendment”), byand among the Original Borrowers, the Lenders, and the Agent, certain terms ofthe Credit Agreement were amended pursuant to the terms and conditions setforth in the First Amendment;

 

WHEREAS, pursuant to the Joinder Agreement,dated as of November 17, 2004 (the “CKRJoinder”), by andbetween CKR and the Agent, CKR joined the Credit Agreement and the LoanDocuments and agreed to become a Borrower under the Credit Agreement and tocomply with and be bound by all of the terms, conditions and covenants of theCredit Agreement and Loan Documents applicable to it as a Borrower;

 

WHEREAS, pursuant to the Joinder Agreement,dated as of December 20, 2004 (the “ChevysJoinder”), by andbetween Chevys and the Agent, Chevys joined the Credit Agreement and the LoanDocuments and agreed to become a Borrower under the Credit Agreement and tocomply with and be bound by all of the terms, conditions and covenants of theCredit Agreement and Loan Documents applicable to it as a Borrower;

 

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WHEREAS, pursuant to the Second Amendment andConsent, dated as of January 11, 2005 (the “SecondAmendment”),by and among the Borrowers, the Lenders, and the Agent, certain terms of theCredit Agreement were amended pursuant to the terms and conditions set forth inthe Second Amendment; and

 

WHEREAS, the Borrowers have requested thatthe Lenders and the Agent agree, among other things, to amend certain of theterms of the Credit Agreement, and the Lenders and the Agent have, upon theterms and conditions set forth herein, agreed to the foregoing;

 

NOW THEREFORE, in consideration of the mutualagreements contained in the Credit Agreement and herein and for other good andvaluable consideration, the receipt and sufficiency of which are herebyacknowledged, the parties hereto hereby agree as follows:

 

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

 

§2.                                Amendment.  Subjectto the satisfaction of the conditions set forth in §5 hereof, Section 11.4of the Credit Agreement is hereby amended by deleting the first sentence in itsentirety and substituting in lieu thereof the following: “The Borrowers willnot make, and will not permit any of their Subsidiaries to make, any CapitalExpenditures in excess of $25,000,000 per annum; provided however, thatfor the fiscal year 2006, the Borrowers will not make, and will not permit anyof their Subsidiaries to make, any Capital Expenditures in excess of$30,000,000.”

 

§3.                                Representations andWarranties.  The Borrowers jointly and severally represent and warrantto the Lenders and the Agent on the date of this Third Amendment and on theEffective Date (as defined below) as follows:

 

§3.1.                       Representationsand Warranties in Credit Agreement.  The representations andwarranties of the Borrowers contained in the Credit Agreement (a) weretrue and correct in all material respects when made, and (b) except to theextent such representations and warranties by their terms are made solely as ofa prior date, continue to be true and correct in all material respects on thedate hereof.

 

§3.2.                       Authority,Etc.  The execution and delivery by the Borrowers of this ThirdAmendment and the performance by the Borrowers of all of their agreements andobligations under this Third Amendment and the Credit Agreement as amendedhereby (a) are within the corporate authority of the Borrowers, (b) havebeen duly authorized by all necessary corporate proceedings by the Borrowers, (c) donot conflict with or result in any breach or contravention of any provision oflaw, statute, rule or regulation to which any of the Borrowers is subjector any judgment, order, writ, injunction, license or permit applicable to anyof the Borrowers, and (d) do not conflict with any provision of anycorporate charter or by-laws of, or any agreement or other instrument bindingupon, any of the Borrowers.

 

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§3.3.                       Enforceabilityof Obligations.  This Third Amendment, and the Credit Agreement asamended hereby, constitute the legal, valid and binding obligations of theBorrowers enforceable against each such Person in accordance with theirrespective terms. Immediately prior to and after giving effect to this ThirdAmendment, no Default or Event of Default exists under the Credit Agreement orany other Loan Document.

 

§4.                                Affirmation ofBorrowers.  The Borrowers hereby affirm their absolute andunconditional promise to pay to each Lender and the Agent all Obligations underthe Notes, the Credit Agreement as amended hereby, the other Loan Documents,and all other related instruments or documents, at the times and in the amountsprovided for therein. The Borrowers confirm and agree that (a) theObligations of the Borrowers to the Lenders and the Agent under the CreditAgreement as amended hereby are secured by and entitled to the benefits of theSecurity Documents and (b) all references to the term “CreditAgreement”in the Security Documents shall hereafter refer to the Credit Agreement asamended hereby.

 

§5.                                Conditions toEffectiveness.

 

§5.1.                       The amendmentsset forth in §2 of this Third Amendment shall be effective on the first day(the “EffectiveDate”) upon which each of the followingconditions precedent have been satisfied:

 

(a)                                  TheAgent shall have received an original counterpart signature this ThirdAmendment, duly executed and delivered by the Borrowers, the Majority Lenders,and the Agent; and

 

(b)                                 TheBorrowers shall have reimbursed the Agent for, or paid directly, all fees,costs and expenses incurred by the Agent’s Special Counsel in connection withthe closing of this Third Amendment for which an invoice has been delivered.

 

§6.                                MiscellaneousProvisions.

 

§6.1.                       No OtherChanges.  Except as otherwise expressly provided by this Agreement,all of the terms, conditions and provisions of the Credit Agreement and each ofthe other Loan documents, and all of the rights and remedies of the Lendersthereunder, shall remain unaltered.

 

§6.2.                       OtherProvisions.  This Third Amendment is a Loan Document for all purposesof the Credit Agreement and each of the other Loan Documents. This ThirdAmendment and the rights and obligations hereunder of each of the partieshereto shall in all respects be construed in accordance with and governed bythe laws of the Commonwealth of Massachusetts. This Third Amendment may beexecuted in any number of counterparts and by different parties hereto inseparate counterparts, but all of such counterparts shall together constitutebut one and the same agreement. In making proof of this Third Amendment, itshall not be necessary to produce or account for more than one counterpart hereofsigned by each of the parties hereto.

 

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**IN WITNESS WHEREOF,**theundersigned have duly executed this Third Amendment as a sealed instrument asof the date first set forth above.

 
| ** ** | **REAL MEX RESTAURANTS, INC.**                 |
|------------|-----------------------------------------------------|
| ** ** | **ACAPULCO RESTAURANTS, INC.**                 |
| ** ** | **EL TORITO FRANCHISING COMPANY**                   |
| ** ** | **EL TORITO RESTAURANTS, INC.**                |
| ** ** | **ACAPULCO RESTAURANTS OF ENCINITAS, INC.**    |
| ** ** | **TARV, INC.**                                 |
| ** ** | **ACAPULCO RESTAURANT OF VENTURA, INC.**       |
| ** ** | **ACAPULCO RESTAURANT OF WESTWOOD, INC.**      |
| ** ** | **ACAPULCO MARK CORP.**                             |
| ** ** | **MURRAY PACIFIC**                                  |
| ** ** | **ALA DESIGN, INC.**                           |
| ** ** | **REAL MEX FOODS, INC.**                       |
| ** ** | **ACAPULCO RESTAURANT OF DOWNEY, INC.**        |
| ** ** | **ACAPULCO RESTAURANT OF MORENO VALLEY, INC.** |
| ** ** | **EL PASO CANTINA, INC.**                      |
| ** ** | **CKR ACQUISITION CORP.**                           |
| ** ** | ** **                                          | ** ** |
| ** ** | ** **                                          | ** ** |
|       | By:                                                 |   | /s/ STEVEN L. TANNER |   |
|       | Name:                                               | STEVEN L. TANNER |
|       | Title:                                              | CFO |
|       |                                                |   |
|       |                                                |   |
| ** ** | **CHEVYS RESTAURANTS, LLC**                         |
| ** ** | ** **                                          | ** ** |
| ** ** | ** **                                          | ** ** |
|       | By:                                                 |   | /s/ STEVEN L. TANNER |   |
|       | Name:                                               | STEVEN L. TANNER |
|       | Title:                                              | CFO |
|            |                                                     |  |  |  |  |

 

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| ** ** | **BANK OF AMERICA, N.A.,**         |
|------------|------------------------------------|
| ** ** | **individually and as Agent**      |
| ** ** | ** **                         | ** ** |
| ** ** | ** **                         | ** ** |
|       | By:                                |   | /s/ Cristin M. O’Hara |   |
|       | Name:                              | Cristin M. O’Hara |
|       | Title:                             | Principal |
|       |                               |   |
|       |                               |   |
| ** ** | **UNION BANK OF CALIFORNIA, N.A.** |
| ** ** | ** **                         | ** ** |
| ** ** | ** **                         | ** ** |
|       | By:                                |   |   |
|       | Name:                              |   |
|       | Title                              |   |
|            |                                    |  |  |  |  |

 

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| ** ** | **BANK OF AMERICA, N.A.,**         |
|------------|------------------------------------|
| ** ** | **individually and as Agent**      |
| ** ** | ** **                         | ** ** |
| ** ** | ** **                         | ** ** |
|       | By:                                |   |   |   |
|       | Name:                              |   |
|       | Title:                             |   |
|       |                               |   |
|       |                               |   |
| ** ** | **UNION BANK OF CALIFORNIA, N.A.** | ** ** |
| ** ** | ** **                         | ** ** |
| ** ** | ** **                         | ** ** |
|       | By:                                |   | /s/ Philip M. Roesner |   |
|       | Name:                              | Philip M. Roesner |
|       | Title                              | Vice President |
|            |                                    |  |  |  |  |

 

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