AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
AMENDMENT NO. 1 TO SECOND AMENDED AND
RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is entered
into as of the
_____
day of August, 2007, by and among (a) REAL MEX RESTAURANTS, INC., formerly known
as Acapulco Acquisition Corp., a Delaware corporation (“Real Mex”), ACAPULCO RESTAURANTS, INC., a
Delaware corporation (“ARI”), EL TORITO FRANCHISING COMPANY, a Delaware corporation (“ETFI”), EL
TORITO RESTAURANTS, INC., a Delaware corporation (“ETRI”), TARV, INC., a California corporation
(“TARV”), ACAPULCO RESTAURANT OF VENTURA, INC., a California corporation (“ARV”), ACAPULCO
RESTAURANT OF WESTWOOD, INC., a California corporation (“ARW”), ACAPULCO XXXX CORP., a Delaware
corporation (“AMC”), XXXXXX PACIFIC, a California corporation (“MP”), ALA DESIGN, INC., a
California corporation (“ALAD”), REAL MEX FOODS, INC., formerly known as ALA Foods, Inc., a
California corporation (“RMF”), ACAPULCO RESTAURANT OF XXXXXX, INC., a California corporation
(“ARD”), ACAPULCO RESTAURANT OF XXXXXX VALLEY, INC., a California corporation (“AMV”), EL PASO
CANTINA, INC., a California corporation (“EPC”), CKR ACQUISITION CORP., a Delaware corporation
(“CKR”), CHEVYS RESTAURANTS, LLC, a Delaware limited liability company (“Chevys”; and collectively
with Real Mex, ARI, ETFI, ETRI, TARV, ARV, ARW, AMC, MP, ALAD, RMF, ARD, AMV, EPC and CKR, the
“Borrowers”), (b) the lending institutions party hereto as Lenders, and (c) GENERAL ELECTRIC
CAPITAL CORPORATION as agent and administrative agent (the “Agent”) for itself and such lending
institutions.
RECITALS
WHEREAS, the Borrowers, Lenders, and Agent entered into a Second Amended and Restated
Revolving Credit Agreement, dated as of January 29, 2007 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”; unless otherwise defined herein,
capitalized terms used herein that are not otherwise defined herein shall have the respective
meanings assigned to such terms in the Credit Agreement);
WHEREAS, Borrowers have requested that the Agent and the Majority Lenders amend certain
provisions of the Credit Agreement; and
WHEREAS, The Agent and Majority Lenders agree to amend certain provisions of the Credit
Agreement upon the terms and subject to conditions set forth herein.
NOW THEREFORE, in the 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. Amendments. Borrowers, Agent and the Majority Lenders hereby agree that Section
11.3 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
“Cash Flow Ratio. The Borrowers will not permit the Cash Flow Ratio, determined for
any Measurement Period ending during any period, or ending on the last day of the fiscal quarter
which ends nearest to the calendar quarter end date, described in the table below, to be less than
the ratio set forth opposite such period in such table:
| Period | ||
| (inclusive of end dates) | Ratio | |
January 1, 2006-June 30, 2007
|
1.70 to 1.00 | |
January 1, 2008 and thereafter
|
1.70 to 1.00 |
For the avoidance of doubt, compliance with the Cash Flow Ratio will not be tested for the
fiscal quarters ending September 20, 2007 and December 31, 2007.”
2. Conditions. The effectiveness of this Amendment is subject to the execution and
delivery to the Agent by the Borrowers named as signatories hereto and the Majority Lenders of
their respective counterparts of the Amendments.
3. Representations and Warranties. The Borrowers represent and warrant to the Lenders
and the Agents as follows.
(a) Except where a failure thereof would not have a Materially Adverse Effect, the execution,
delivery and performance of this Amendment (i) is within the corporate authority of such Person,
(ii) has been duly authorized by all necessary corporate proceedings, (iii) does not conflict with
or result in any breach of contravention of any provision of law, statute, rule or regulation to
which any of the Borrowers of any of their Subsidiaries is subject or any judgment, order, writ,
injunction, license of permit applicable to any of the Borrowers or any of their Subsidiaries and
(iv) does not conflict with any provision of the corporate charter of bylaws of, or any agreement
or other instrument binding upon, any of the Borrowers or any of their Subsidiaries.
(b) The execution and delivery of this Amendment will result in valid and legally binding
obligation of such Person enforceable against it in accordance with the respective terms and
provisions hereof and thereof, except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally the enforcement of
creditors’ rights and except to the extent that availability of the remedy of specific performance or injunctive relief is subject to the discretion of the
court before which any proceeding therefore may be brought.
(c) Except as set forth on Schedule 8.2 of the Credit Agreement and where a failure thereof
would not have a Materially Adverse Effect, the execution, delivery and performance by each of the
Borrowers and their Subsidiaries of the Amendment, does not require the approval or consent of, or
filing with, any governmental agency or authority other than those already obtained.
(d) Each of the representations and warranties of any of the Borrowers and their Subsidiaries
contained in the Credit Agreement, the other Loan documents or in any document or instrument
delivered pursuant to or in connection with the Credit Agreement shall be true as of the dated as
of which they were made and shall also be true at and as of the time and after giving effect to
this Amendment, with the same effect as if made at and as of that time (except to the extent of
changes resulting from transactions contemplated or permitted by the Credit Agreement and the other
Loan or Documents and changes occurring in the ordinary course of business that singly of in the
aggregate are not materially adverse, and to the extent that such representations and warranties
relate expressly to an earlier date) and except for the Specified Default no Default or Event of
Default shall have occurred and be continuing.
4. Execution in Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which when taken together shall
constitute but one and the same instrument.
5. Continuing Effect of the Credit Agreement. Except as expressly set forth herein,
this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of, or
otherwise affect the rights and remedies of the Lenders, the Agents or the Borrowers under the
Credit Agreement and shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit Agreement, all of which
are ratified and affirmed in all respects and shall continue in full force and effect. Nothing
herein shall be deemed to entitle the Borrowers to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement in similar or different circumstances. This Agreement shall apply
and be effective only with respect to the provisions of the Credit Agreement specifically referred
to herein. After the effectiveness of this Agreement, any reference to the Credit Agreement shall
mean the Credit Agreement as amended and modified hereby.
6. Cost and Expenses. As provide in Section 8.1 of the Credit Agreement,
Borrowers agree to reimburse Agent in connection with this Amendment for all fees, cost, and
expenses incurred by or on behalf of the Agent, including, without limitation, reasonable fees,
costs, client charges and expenses of counsel for the Agent.
7. Applicable Law. THIS AMENDMENT IS A CONTRACT UNDER THE LAWS OF THE STATE OF
ILLINOIS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
SAID STATE OF ILLINOIS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
8. Headings. Headings herein are included herein for convenience of reference only and
shall not constitute a part hereof for any other purpose or be given any substantive effect.
9. Loan Document. This Amendment shall constitute a Loan Document.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by
their respective officers thereunto duly authorized as of the date first written above.
| REAL MEX RESTAURANTS, INC. | ||
| ACAPULCO RESTAURANTS, INC. | ||
| EL TORITO FRANCIHISING COMPANY | ||
| EL TORITO RESTAURANTS, INC. | ||
| TARV, INC. | ||
| ACAPULCO RESTAURANT OF VENTURA, INC. | ||
| ACAPULCO RESTAURANT OF WESTWOOD, INC. | ||
| ACAPULCO XXXX CORP. | ||
| XXXXXX PACIFIC | ||
| ALA DESIGN, INC. | ||
| REAL MEX FOODS, INC. | ||
| ACAPULCO RESTAURANT OF XXXXXX INC. | ||
| ACAPULCO RESTAURANT OF XXXXXX VALLEY INC. | ||
| EL PASO CANTINA, INC. | ||
| CKR ACQUISITION CORP. | ||
| CHEVYS RESTAURANTS, LLC |
| /s/ Xxxxxx Xxxxxx | ||||
| Xxxxxx Xxxxxx | ||||
| Chief Financial Officer | ||||
| GENERAL ELECTRIC CAPITAL CORPORATION, as Agent and sole Lender |
||||
| /s/ Xxxxxxxx Xxxxxx | ||||
| Xxxxxxxx Xxxxxx | ||||
| Authorized Signatory | ||||
