NOTHING CONTAINED HEREIN
SHALL OPERATE TO RELEASE ANY CLAIM, DEMAND, CAUSE OF ACTION, SUIT, DEBT,
ACCOUNT, BILL, LIABILITY, CONTRACT, CONTROVERSIES, AGREEMENT, PROMISE, DAMAGE
AND/OR OBLIGATION OF ANY NATURE WHATSOEVER, ARISING FROM, RELATING TO, OR
PERTAINING TO SECTION 2.1(F) OF THE ASSET PURCHASE AGREEMENT.
THE REAL MEX
RELEASED CLAIMS AND THE JW CHILDS RELEASED CLAIMS ARE COLLECTIVELY REFERRED TO
HEREIN AS THE "RELEASED CLAIMS").
5.
REAL MEX FURTHER COVENANTS TO NOT SUE, INSTITUTE OR PARTICIPATE
IN ANY CLAIM, DEMAND, SUIT, PROCEEDING, ARBITRATION OR ANY ACTION OR PROCEEDING
IN LAW OR EQUITY AGAINST THE JW
3
CHILDS RELEASED PARTIES, IN ANY WAY RELATING TO OR ARISING OUT OF THE REAL MEX
RELEASED CLAIMS.
REAL MEX FURTHER AGREES TO REIMBURSE ALL COSTS, EXPENSES AND
ATTORNEYS' FEES INCURRED BY THE JW CHILDS RELEASED PARTIES IN THE EVENT OF ANY
BREACH OF THE COVENANTS BY REAL MEX CONTAINED IN THIS PARAGRAPH 5.
6.
REAL MEX REPRESENTS AND WARRANTS THAT IT HAS PAID (OR WILL PAY)
THE PERSONAL PROPERTY TAXES DESCRIBED ON SCHEDULE 2 HERETO.
REAL MEX ALSO
COVENANTS NOT TO SUE, INSTITUTE OR PARTICIPATE IN ANY CLAIM, DEMAND, SUIT,
PROCEEDING, ARBITRATION OR ANY ACTION OR PROCEEDING IN LAW OR EQUITY AGAINST THE
SELLERS (AS THAT TERM IS USED IN THE ASSET PURCHASE AGREEMENT) OR THE DEBTORS,
THE TRUST ESTATE, THE TRUST AND/OR THE TRUSTEE IN IN RE CHEVYS, INC. ET AL.,
CASE NO. 03-45879 RN11 (BNKR. N.D. CAL) (AS JOINTLY ADMINISTERED) ARISING OUT OF
THE INDEMNIFICATION CLAIMS.
7.
EACH OF JW CHILDS PARTNERS AND JWC AGREES THAT IT WILL VOTE OR
EXECUTE CONSENTS IN RESPECT OF EACH SHARE OF CAPITAL STOCK OF REAL MEX
RESTAURANTS (INCLUDING, WITHOUT LIMITATION, THE ADDITIONAL SHARES) WITH RESPECT
TO WHICH IT HAS VOTING POWER AT THE TIME OF A STOCKHOLDERS MEETING OR REQUEST
FOR CONSENT (AND SHALL CAUSE EACH DIRECTOR OF REAL MEX RESTAURANTS WHICH IT
SHALL HAVE THE POWER TO APPOINT OR DESIGNATE AT THE TIME OF A BOARD OF DIRECTORS
MEETING OR REQUEST FOR CONSENT, TO VOTE OR EXECUTE CONSENTS) IN FAVOR OF THE
PROPOSED MERGER INVOLVING RM RESTAURANT HOLDINGS CORP (OR OTHER AFFILIATES OF
SUN CAPITAL PARTNERS GROUP IV, INC.) AND REAL MEX RESTAURANTS (THE "MERGER"),
UPON THE TERMS SET FORTH IN THE MERGER AGREEMENT SUBSTANTIALLY IN THE FORM
ATTACHED AS EXHIBIT C HERETO (THE "MERGER AGREEMENT").
ADDITIONALLY, EACH OF JW
CHILDS PARTNERS AND JWC HEREBY WAIVES ANY AND ALL APPRAISAL, DISSENTERS AND
SIMILAR RIGHTS THAT IT MAY HAVE WITH RESPECT TO SUCH MERGER, PROVIDED THE MERGER
IS CONSUMMATED PURSUANT TO THE MERGER AGREEMENT.
8.
FOLLOWING THE CONSUMMATION OF THE MERGER, IN THE EVENT THAT JW
CHILDS SHALL BE OBLIGATED PURSUANT TO SECTION 2.1(F)(III) OF THE ASSET PURCHASE
AGREEMENT TO RETURN AN AMOUNT OF STOCK CONSIDERATION TO REAL MEX RESTAURANTS TO
SATISFY EXCESS ADMINISTRATIVE AND EXIT COSTS (AS SUCH TERM IS DEFINED IN THE
ASSET PURCHASE AGREEMENT), IN LIEU OF RETURNING SUCH STOCK CONSIDERATION, JW
CHILDS SHALL PROMPTLY PAY AN EQUIVALENT AMOUNT IN CASH TO REAL MEX RESTAURANTS
(CALCULATED IN ACCORDANCE WITH SECTION 2.1(F)(II)(C) OF THE