CREDIT AGREEMENT DATED AS OF JULY 7, 2009 By and Among

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

RM Restaurant Holding Corp.
Credit Agreement

TABLE OF CONTENTS

RM Restaurant Holding Corp.
Credit Agreement

RM Restaurant Holding Corp.
Credit Agreement

RM Restaurant Holding Corp.
Credit Agreement

EXHIBITS

SCHEDULES

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

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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

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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.

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           “ 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.

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           “ 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

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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.

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           “ 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).

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           “ 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

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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.

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           “ 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.

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           “ 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.

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           “ 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.

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           “ 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.

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           “ 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.

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           “ 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.

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           “ 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.

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           “ 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

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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.

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           “ 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

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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.

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           “ 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.

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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

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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:

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           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

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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.

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           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.

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     (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