LIMITED WAIVER AND FIRST
AMENDMENT TO SECOND AMENDED AND
RESTATED CREDIT AGREEMENT
THIS LIMITED WAIVER AND FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “
Agreement ”) is entered into as of the 27th day of
July, 2011, by and among (a) RM RESTAURANT HOLDING CORP., a
Delaware corporation (“ Holdings ”),
(b) REAL MEX RESTAURANTS, INC., a Delaware corporation (the
“ Company ), (c) THE BANKS, FINANCIAL
INSTITUTIONS AND OTHER ENTITIES PARTY THERETO FROM TIME TO TIME AS
LENDERS SIGNATORY HERETO (the “ Lenders ”) and
(d) WILMINGTON TRUST, NATIONAL ASSOCIATION (AS SUCCESSOR TO
WILMINGTON TRUST FSB), as administrative agent for the Lenders (in
such capacity and together with its successors, the “
Administrative Agent ”).
WHEREAS, Holdings, the Company, the Lenders, and
the Administrative Agent entered into a Second Amended and Restated
Credit Agreement, dated as of July 7, 2009 (as amended,
restated, supplemented or otherwise modified from time to time, the
“ Credit Agreement ”; unless otherwise defined
herein, capitalized terms used herein shall have the respective
meanings assigned to such terms in the Credit
Agreement);
WHEREAS, Holdings and the Company have requested
that the Administrative Agent and the Lenders amend certain
provisions of the Credit Agreement and waive certain breaches or
violations and certain Defaults and Events of Default under the
Credit Agreement, all as set forth in this Agreement;
WHEREAS, the Administrative Agent and Lenders
agree to such amendments and waivers upon the terms and subject to
conditions set forth herein;
WHEREAS, contemporaneously with the execution
and delivery of this Agreement, the Senior Note Indenture is being
amended as provided in a supplemental indenture in a form provided
to the Administrative Agent and the Lenders (the “
Indenture Amendment ”);
WHEREAS, contemporaneously with the execution
and delivery of this Agreement, the parties to the Revolving Credit
Agreement are entering into a limited waiver and amendment no. 6 to
the Revolving Credit Agreement in a form provided to the
Administrative Agent and the Lenders (the “ Revolving
Credit Agreement Amendment ”);
WHEREAS, contemporaneously with the execution
and delivery of this Agreement, the parties to the Holdings Credit
Agreement are entering into a limited waiver and second amendment
to the Holdings Credit Agreement in a form provided to the
Administrative Agent and the Lenders (the “ Holdings
Credit Agreement Amendment ” and, collectively with the
aforementioned amendments in the foregoing Recitals, the “
Amendments ”);
NOW THEREFORE, in consideration of the premises
and the mutual agreements set forth, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions in Credit Agreement;
etc. Unless otherwise defined herein, terms defined in or by
reference to the Credit Agreement (as from time to time amended)
are used herein as therein defined.
2. Limited
Waiver . The Administrative Agent and the Lenders
hereby:
(a) waive
any breach or violation of the Credit Agreement described on
Annex A hereto (and any Default or Event of Default
resulting directly therefrom) and the Events of Defaults described
on Annex A hereto, provided , that the waivers set
forth above shall be limited precisely as written and shall not be
deemed or otherwise construed to constitute a waiver of any other
Default or other Event of Default or any other provision of the
Credit Agreement or any other Loan Document or to prejudice any
right, power or remedy which the Administrative Agent or any Lender
may now have or may have in the future under or in connection with
any such other Default, other Event of Default or other provision
of the Credit Agreement or any other Loan Document, all of which
rights, power and remedies are hereby expressly reserved by the
Administrative Agent and the Lenders; and
(b) notwithstanding anything to the
contrary in the Credit Agreement, consent to (A) the execution and
delivery of (i) the Last-Out Participation Agreement (as
defined in this Agreement), (ii) the Amendments and
(B) the consummation of the transactions and other matters
contemplated by such documents including, without limitation, the
payment of the fees, costs and expenses due and payable to the
lenders, agents and trustees (and their respective counsel)
expressly contemplated in the Amendments.
3.
Amendments . The Credit Agreement is hereby amended as
follows:
(a) §1.1 of the Credit Agreement is
amended by inserting therein in the proper alphabetical order the
following definitions:
“‘
First Amendment Date ’ means July 27,
2011.
‘ Last-Out Participation ’
means a last-out participation interest under the Revolving Credit
Agreement available to be purchased by Sun Cantinas Finance, LLC
(“ Sun Finance ”) and/or one or more Affiliates
of Sun Capital Partners, Inc. pursuant to the Last-Out
Participation Agreement and any Supplemental Participation
Agreement.
‘ Last-Out Participation Agreement
’ means that certain Last-Out Loan Participation Agreement,
dated as of July 27, 2011, by and between Sun Finance and GE
Franchise Finance Commercial, LLC, a Delaware limited liability
company, as successor by assignment to General Electric Capital
Corporation (“ GE Franchise ”), in its
individual capacity as a Lender, as amended, amended and restated,
modified or supplemented from time to time.
2
‘ Supplemental Participation
Agreement ’ means a last-out participation agreement by
and between Sun Finance and GE Franchise (or one or more of their
respective permitted assigns) described in the Last-Out
Participation Agreement.”
(b) §6.1(ii) of the Credit Agreement
is amended and restated to read in its entirety as
follows:
“(ii) Indebtedness at any time incurred
under the Revolving Credit Documents and any Permitted Refinancing
Indebtedness in respect of such Indebtedness in an aggregate
principal amount under this clause (ii) not to exceed
$40,000,000, including the Last-Out Participation, less the
aggregate amount of all permanent reductions (other than any
reduction in the letter of credit commitment thereunder that is
accompanied with a corresponding increase in the revolving credit
loan commitment thereunder or any reduction in the revolving credit
loan commitment thereunder that is accompanied with a corresponding
increase in the letter of credit commitment thereunder, provided,
that, notwithstanding any such reduction and corresponding
increase, the aggregate principal amount pursuant to this clause
(ii) shall not exceed $40,000,000), of the commitments thereunder
by the Company or any of the Subsidiaries since the First Amendment
Date;”
(c) §6.2(a)(x) of the Credit Agreement
is amended and restated to read in its entirety as
follows:
“(ii) liens created under, or evidenced or
governed by, the Revolving Credit Documents (or the documents
relating to any Permitted Refinancing Indebtedness in respect
thereof) securing Indebtedness permitted by subsection 6.1(ii)
(including the Last-Out Participation);”
(d) §6.9 of the Credit Agreement is
amended to include the following words at the present beginning
thereof:
“Other
than the Last-Out Participation,”
(e) Section 7 of the Credit Agreement
is amended by inserting new §§7.13 and 7.14 therein after
removing the “.” at the present end of §7.12
thereof, which new §§7.13 and 7.14 shall read in their
entirety as follows:
“Section 7.13. Restructuring
Plan . Failure by Holdings to cause the Company to
submit to the Administrative Agent and the Lenders (which delivery
may be made through counsel to such parties) on or prior to
September 15, 2011, a reasonably detailed proposal to
restructure the Company’s material debt arrangements (the
“ Comprehensive Restructuring Plan ”),
accompanied by an Officers’ Certificate certifying that such
Comprehensive Restructuring Plan was prepared on a reasonable basis
and in good faith and is based on assumptions believed by the
Company to be reasonable at the time made and from the best
information then reasonably available to the Company; or
3
Section 7.14. Plan Agreement.
(i) Failure by (a) the Company, (b) the beneficial
holders of a majority in aggregate principal amount of the
outstanding Senior Secured Notes, (c) the majority lenders
under the Revolving Credit Agreement, (d) the Requisite
Lenders under the Credit Agreement; (e) the Requisite Lenders
(as defined in the Holdings Credit Agreement and subject to the
proviso contained in clause (d) Section 7.13 of such
Holdings Credit Agreement) under the Holdings Credit Agreement; and
(f) a majority of the holders of Holdings’ common equity
interests to negotiate and execute a binding restructuring term
sheet, plan support agreement, lock-up agreement or similar
agreement containing the substance of the Comprehensive
Restructuring Plan or another plan with respect to the
Company’s material debt arrangements on or prior to
October 31, 2011 (any such agreement, a “ Plan
Agreement ”) (it being understood and agreed that each
beneficial holder whose signature is required in order to satisfy
the requirements of clause (i) of this Section 7.14 shall
have the right to determine, in its sole discretion, whether or not
to execute any such proposed Plan Agreement) or (ii) following
the execution of a Plan Agreement, failure by the Company to comply
in all material respects with the terms of the Plan Agreement, or
to otherwise implement in all material respects the Plan Agreement
in accordance with the terms thereof, in each case, which failure
continues and has not been cured for a period of 10 days
following the Company’s receipt of written notice thereof
from the Administrative Agent or the Requisite
Lenders.”
4. Conditions . This Agreement
shall be effective on the first day on which each of the following
conditions precedent have been satisfied:
(a) The Administrative Agent shall have
received a counterpart signature of Holdings, the Company and the
Lenders party hereto whic
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