SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

EXHIBIT 10.15

SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 25, 2004 (the “Amendment”), is by and among RED XXXXX INTERNATIONAL, INC., a Nevada corporation (the “Borrower”), RED XXXXX GOURMET BURGERS, INC. (the “Parent”), those Domestic Subsidiaries of the Borrower identified as a “Guarantor” on the signature pages hereto and such other Domestic Subsidiaries of the Borrower as may from time to time become a party hereto (together with the Parent, each individually a “Guarantor” and collectively the “Guarantors”), the Lenders party hereto and WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).

W I T N E S S E T H

WHEREAS, the Borrower, the Guarantors, the lenders from time to time party thereto (the “Lenders”) and the Administrative Agent are parties to that certain Amended and Restated Credit Agreement dated as of May 20, 2003 (as previously amended and modified and as further amended, modified, supplemented or restated from time to time, the “Credit Agreement”; capitalized terms used herein shall have the meanings ascribed thereto in the Credit Agreement unless otherwise defined herein);

WHEREAS, the Borrower has requested that the Required Lenders (on behalf of the Lenders) agree to amend certain terms of the Credit Agreement as set forth below; and

WHEREAS, the Required Lenders have agreed to such amendments of the Credit Agreement, subject to the terms and conditions contained herein.

NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1

AMENDMENTS

1.1 Amendment to Section 2.2(a). The LOC Committed Amount in Section 2.2(a) of the Credit Agreement is hereby increased to FIVE MILLION DOLLARS ($5,000,000).

1.2 Amendment to Section 5.9(e). The Consolidated Capital Expenditure limit for fiscal year 2004 set forth in Section 5.9(e) of the Credit Agreement is hereby increased to $80,000,000.

SECTION 2

CLOSING CONDITIONS

2.1 Conditions Precedent. This Amendment shall become effective as of the date hereof upon the receipt by the Administrative Agent of counterparts of this Amendment, which collectively shall have been duly executed on behalf of (a) the Borrower, (b) the Guarantors and (c) the Required Lenders.

SECTION 3

MISCELLANEOUS

3.1 Amended Terms. The term “Credit Agreement” as used in each of the Credit Documents shall hereafter mean the Credit Agreement as amended by this Amendment. Except as specifically amended hereby or otherwise agreed, the Credit Agreement is hereby ratified and confirmed and shall remain in full force and effect according to its terms.

3.2 Representations and Warranties of Credit Parties. Each Credit Party hereby represents and warrants as follows:

(a) It has taken all necessary action to authorize the execution, delivery and performance of this Amendment.

(b) This Amendment has been duly executed and delivered by such Person and constitutes such Person’s legal, valid and binding obligations, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

(c) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or Governmental Authority or third party is required in connection with the execution, delivery or performance by such Person of this Amendment.

(d) Both before and after giving effect to this Amendment, the representations and warranties set forth in Article III of the Credit Agreement are, subject to the limitations set forth therein, true and correct in all respects as of the date hereof (except for those which expressly relate to an earlier date).

(e) Both before and after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.

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3.3 Credit Document. This Amendment shall constitute a Credit Document under the terms of the Credit Agreement and shall be subject to the terms and conditions thereof (including, without limitation, Sections 9.14 and 9.17 of the Credit Agreement).

3.4 Entirety. This Amendment and the other Credit Documents embody the entire agreement between the parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereof.

3.5 Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument.

3.6 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.

[Signature Pages to Follow]

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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.

BORROWER:		RED XXXXX INTERNATIONAL, INC., a Nevada corporation
		By:		/s/ Xxxxx X. XxXxxxxxx
		Name:		Xxxxx X. XxXxxxxxx
		Title:		Chief Financial Officer
GUARANTORS:		RED XXXXX GOURMET BURGERS, INC., a Delaware corporation
		RED XXXXX XXXX, INC.,
		a Nevada corporation
		RED XXXXX DISTRIBUTING COMPANY, INC.,
		a Colorado corporation
		WESTERN FRANCHISE DEVELOPMENT, INC.,
		a California corporation
		By:		/s/ Xxxxx X. XxXxxxxxx
		Name:		Xxxxx X. XxXxxxxxx
		Title:		Chief Financial Officer of each of the foregoing Guarantors
		RED XXXXX OF XXXX ARUNDEL COUNTY, INC.,
		a Maryland corporation
		RED XXXXX OF BALTIMORE COUNTY, INC.,
		a Maryland corporation
		RED XXXXX OF XXXXXXXXXX COUNTY, INC.,
		a Maryland corporation
		RED XXXXX OF XXXXXX COUNTY, INC.,
		a Maryland corporation
		RED XXXXX OF XXXXXXX COUNTY, INC.,
		a Maryland corporation
		By:		/s/ Xxxxx X. XxXxxxxxx
		Name:		Xxxxx X. XxXxxxxxx
		Title:		Secretary & Treasurer of each of the foregoing Guarantors

[signature pages continue]

RED XXXXX INTERNATIONAL, INC.

SECOND AMENDMENT TO CREDIT AGREEMENT

ADMINISTRATIVE AGENT AND LENDERS:		WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent and as a Lender
		By:		/s/ Xxxxx Xxxxxxx
		Name:		Xxxxx Xxxxxxx
		Title:		Vice President

[signature pages continue]

RED XXXXX INTERNATIONAL, INC.

SECOND AMENDMENT TO CREDIT AGREEMENT

XXXXX FARGO BANK, N.A., as Syndication Agent and as a Lender
By:		/s/ Xxxx X. Xxxxxx for Xxxxxx Xxxx
Name:		Xxxx X. Xxxxxx
Title:		Assistant Vice President

[signature pages continue]

RED XXXXX INTERNATIONAL, INC.

SECOND AMENDMENT TO CREDIT AGREEMENT

U.S. BANK NATIONAL ASSOCIATION, as Documentation Agent and as a Lender
By:		/s/ XXXXXX XXXXXXXX
Name:		XXXXXX XXXXXXXX
Title:		VICE PRESIDENT

[signature pages continue]

RED XXXXX INTERNATIONAL, INC.

SECOND AMENDMENT TO CREDIT AGREEMENT

BANK OF AMERICA, N.A., as a Lender
By:		/s/ Xxxxxxxxx Xxxxx
Name:		Xxxxxxxxx Xxxxx
Title:		Director

[signature pages continue]

RED XXXXX INTERNATIONAL, INC.

SECOND AMENDMENT TO CREDIT AGREEMENT

KEY BANK N.A., as a Lender
By:		/s/ XXXXXXXX XXXXXXXX
Name:		XXXXXXXX XXXXXXXX
Title:		SENIOR VICE PRESIDENT

[signature pages continue]

RED XXXXX INTERNATIONAL, INC.

SECOND AMENDMENT TO CREDIT AGREEMENT

SUNTRUST BANK, as a Lender
By:		/s/ XXXXX X. XXXX
Name:		XXXXX X. XXXX
Title:		Managing Director

RED XXXXX INTERNATIONAL, INC.

SECOND AMENDMENT TO CREDIT AGREEMENT