EXHIBIT 10(aa)
AMENDMENT NO. 6 TO
FIFTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED AS OF SEPTEMBER 22, 2003
THIS AMENDMENT XX. 0 ("Xxxxxxxxx Xx. 0") dated as of August 31, 2005
between MAX & ERMA'S RESTAURANTS, INC., a Delaware corporation (the "Company"),
and NATIONAL CITY BANK, as successor by merger to The Provident Bank, an Ohio
banking corporation (the "Bank").
WITNESSETH:
WHEREAS, the Company and the Bank, parties to the Fifth Amended and
Restated Revolving Credit Agreement, dated as of September 22, 2003, as amended
by Amendment No.1 dated as of December 31, 2003, Amendment No. 2 dated as of May
17, 2004, Amendment No. 3 dated as of December 17, 2004, Amendment No. 4 dated
as of March 28, 2005 and Amendment No. 5 dated as of May 4, 2005 (the
"Agreement"), have agreed to amend the Agreement by this Amendment No. 6 on the
terms and conditions hereinafter set forth. Terms not otherwise defined herein
are used as defined in the Agreement as amended hereby.
NOW, THEREFORE, the Company and the Bank hereby agree as follows:
Section 1. Amendment of the Agreement. The Agreement is, effective the date
hereof, hereby amended as follows:
1.1. Section 6.2(b) is amended and restated in its entirety as
follows:
(b) Liabilities/Tangible Net Worth Ratio. Permit the ratio of
Liabilities to Tangible Net Worth to exceed (i) 5.15 to 1.00 on
August 31, 2005 through October 31, 2005, (ii) 5.00 to 1.00 on
November 1, 2005 through February 28, 2006, (iii) 4.80 to 1.00 on
March 1, 2006 through May 31, 2006, and (iv) 4.60 to 1.00 on June
1, 2006 and thereafter.
1.2. Section 6.2(c) is amended and restated in its entirety as
follows:
(c) Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio
shall not be less than (1) 0.85 to 1.00 from August 31, 2005
through October 31, 2005, (2) 0.90 to 1.00 from November 1, 2005
to February 28, 2006, (3) 0.95 to 1.00 from March 1, 2006 to May
31, 2006, and (4) 1.00 to 1.00 thereafter. "Fixed Charge Coverage
Ratio" means, for the Company during the Fiscal Period being
measured, the quotient of (a) the sum of (i) net income (adjusted
upward to the extent non-recurring, non-cash charges are
reflected therein and adjusted downward to the extent
non-recurring, non-cash gains are reflected therein), plus (ii)
amortization and depreciation plus (iii) accrued interest expense
plus (iv) income taxes payable during such period minus (v) one
time non-cash charges reflected
within net income, divided by (b) the sum of (v) current
maturities of other long term indebtedness plus (w) current
maturities of capitalized lease obligations plus (x) accrued
interest expense plus (y) during the Fiscal Period this ratio is
being measured, 20% of the Revolving Credit Usage (as defined
below), and (z) Store Capital Expenditures in the prior 12
months. "Store Capital Expenditures" means the greater of (A) the
product of (i) the number of Company restaurants that have been
open more than one year during the Fiscal Period this ratio is
being measured multiplied by (ii) $47,000 or (B) the actual
Capital Expenditures on such restaurants during the Fiscal
Period. "Revolving Credit Usage" means the amount of Revolving
Loans outstanding under the Revolving Note on the last day of the
Fiscal Period that is being measured.
1.3. Section 6.2(e) is amended and restated in its entirety as
follows:
(e) Tangible Net Worth. Permit its Tangible Net Worth to be less
than (i) $11,500,000 from August 31, 2005 through October 31,
2006, and (ii) $13,000,000 from November 1, 2006 to the later of
the Revolving Credit Maturity Date, the Draw Loan Maturity Date
or the Term Loan Maturity Date.
1.4. Section 6.2(g) is amended and restated in its entirety as
follows:
(g) Senior Debt to EBITDA. At the end of any Fiscal Period
commencing (1) on August 31, 2005 and ending on October 31, 2005,
permit the ratio of (i) the Company's Indebtedness during the
Fiscal Period being measured to (ii) the Company's EBITDA during
the Fiscal Period being measured to be greater than 2.95 to 1.00;
(2) on November 1, 2005 and ending on February 28, 2006, permit
the ratio of (i) the Company's Indebtedness during the Fiscal
Period being measured to (ii) the Company's EBITDA during the
Fiscal Period being measured to be greater than 2.80 to 1.00; (3)
on March 1, 2006 and ending on May 31, 2006, permit the ratio of
(i) the Company's Indebtedness during the Fiscal Period being
measured to (ii) the Company's EBITDA during the Fiscal Period
being measured to be greater than 2.65 to 1.00; and (4) on June
1, 2006 and thereafter, permit the ratio of (i) the Company's
Indebtedness during the Fiscal Period being measured to (ii) the
Company's EBITDA during the Fiscal Period being measured to be
greater than 2.50 to 1.00.
1.5. Exhibit C-8 attached hereto amends and restates in its entirety
Exhibit C-7.
Section 2. Governing Law. This Amendment No. 6 shall be governed by and
construed in accordance with the laws of the State of Ohio.
Section 3. Costs and Expenses. The Company hereby agree to pay on demand
all reasonable costs and expenses of the Bank in connection with the
preparation, execution and delivery of this Amendment No. 6 and the other
documents to be delivered in connection
herewith, including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel to the Bank with respect thereto.
Section 4. Counterparts. This Amendment No. 6 may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
when taken together shall constitute one and the same agreement.
Section 5. Warrant of Attorney. The undersigned and all indorsers authorize
any attorney at law, including an attorney engaged by the holder, to appear in
any court of record in Columbus, Ohio, after the indebtedness evidenced hereby,
or any part thereof, becomes due and waive the issuance and service of process
and confess judgment against any one or more than one of the undersigned and all
indorsers in favor of the holder, for the amount then appearing due, together
with costs of suit and, thereupon, to release all errors and waive all rights of
appeal and stay of execution, but no such judgment or judgments against any one
of the undersigned shall be a bar to a subsequent judgment or judgments against
any one or more than one of such persons against whom judgment has not been
obtained hereon. The foregoing warrant of attorney shall survive any judgment;
and if any judgment be vacated for any reason, the holder hereof nevertheless
may thereafter use the foregoing warrant of attorney to obtain an additional
judgment or judgments against the undersigned and all indorsers or any one or
more of them. The undersigned and all indorsers hereby expressly waive any
conflict of interest that the holder's attorney may have in confessing such
judgment against such parties and expressly consent to the confessing attorney
receiving a legal fee from the holder for confessing such judgment against such
parties.
Section 6. Conditions Precedent. Simultaneously with the execution hereof,
the Bank shall receive all of the following, each dated the date hereof, in form
and substance satisfactory to the Bank:
6.1. The certificate of an officer of the Company certifying the
resolutions of the board of directors of the Company evidencing authorization of
the execution, delivery, and performance of this Amendment No. 6 and all
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to the Loan Documents, or the transactions
contemplated.
6.2. Executed versions of Amendment No. 6.
6.3. Payment of a waiver and restructuring fee of $40,000.
6.4. Such other documents as the Bank may, in its reasonable
discretion, so require.
Section 7. Reaffirmation of Representations and Warranties; No Defaults.
The Company hereby expressly acknowledges and confirms that the representations
and warranties of the Company set forth in Section 4 of the Agreement, as
amended, are true and accurate on this date with the same effect as if made on
and as of this date; that no financial condition or circumstance exists which
would inevitably result in the occurrence of an Event of Default under Section 7
of the Agreement; and that no event has occurred or no condition exists which
constitutes, or with
the running of time or the giving of notice would constitute an Event of Default
under Section 7 of the Agreement.
Section 8. Reaffirmation of Documents. Except as herein expressly modified,
the parties hereto ratify and confirm all of the terms, conditions, warranties
and covenants of the Agreement, and all security agreements, pledge agreements,
mortgage deeds, assignments, subordination agreements, or other instruments or
documents executed in connection with the Agreement, including provisions for
the payment of the Notes pursuant to the terms of the Agreement. The parties
hereto agree that this Amendment No. 6 does not constitute the extinguishment of
any obligation or indebtedness previously incurred nor does it in any manner
affect or impair any security interest granted to the Bank, all of such security
interests to be continued in full force and effect until the indebtedness
described herein is fully satisfied.
The parties have executed this Amendment No. 6 as of the date first
above written.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
MAX & ERMA'S RESTAURANTS, INC. NATIONAL CITY BANK
By: /s/ Xxxxxxx X. Xxxxxxx, Xx. By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx. Name: Xxxxxxx X. Xxxxxx
Its: Chief Financial Officer Its: Senior Vice President
Address for Notices: Address for Notices:
0000 Xxxxxxxxx Xxxxx 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Xx. Attention: Xxxxxxx X. Xxxxxx
Telephone No.: 000-000-0000 Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
EXHIBIT C-8
MAX & ERMA'S RESTAURANTS, INC.
AT THE FOLLOWING LOCATIONS:
ADDRESS COUNTY
------- ------
000 X. Xxxxx Xx., Xxxxxxxx, Xxxx 00000 Franklin
0000 Xxxx Xxxx Xxxxx, Xxxxxxxx, Xxxx 00000 Franklin
0000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000 Xxxxxxxxxx
0000 Xxxxxxxx Xxxx, Xxxxxxxxxxxx, XX 00000 Xxxxxx
0000 Xxxxx Xxxx, Xxxxxxxx, Xxxx 00000 Franklin
00000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxxx Xxxxx, XX 00000 Oakland
0000 X. Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 Franklin
0000 XX 00 Xxxxx, Xxxxxxxxxxxx, XX 00000 Xxxxxx
000 Xxxxxxx Xx., Xxxxxxxxxx, XX 00000 Allegheny
00000 Xxx Xxxx Xxxx, Xxxxxxx, XX 00000 Xxxxx
000 Xxxxx Xxxxx Xxxxx, Xxxxxx, Xxxx 00000 Franklin
0000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 Allegheny
0000 Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 Allegheny
000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 Oakland
0000 Xxxx 00xx Xxxxxx, Xxxxxxxxxxxx, XX 00000 Xxxxxx
000 Xxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000 Franklin
000 X. Xxxxxxxxxx Xxxx., Xxxxx 0, Xxx Xxxxx, XX 00000 Washtenaw
000 Xxxx Xxxx, Xxxxxxxxx Xxxxxxx, XX 00000 Xxxx
0000 X. Xxxxxx Xx., Xxxxxxxx, Xxxx 00000 Summit
00000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 Cuyahoga
0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxx, XX 00000 Xxxxxx
000 X. Xxxxxxxxx Xxx., Xxxxxx Xxxxx, XX 00000 Lake
0000 Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxx 00000 Xxxxxxxx
00000 Xxxx Xxxx, #X000, Xxxx, XX 00000 Oakland
0000 X. 00xx Xxxxxx, Xxxxxxxxx, Xxx 00000 DuPage
0000 Xxxxxxx Xxxx, Xxxxxxx Xxxxxxx, XX 00000 Xxxx
ADDRESS COUNTY
------- ------
0000 Xxxxxxxx Xxxx, Xxxxxxx, XX 00000 Franklin
0000 X.X. Xxxx Xxxx., Xxxxxxxxx, XX 00000 Mecklenburg
0000 Xxxxxx Xxxx, Xxxxxx, Xxxx 00000 Xxxxxxxxxx
000 Xxxxxxxx Xxxxx, Xxxx, XX 00000 Allegheny
000 X. Xxxxxxxxx Xxxxx, Xxxx Xxxxx, XX 00000 DuPage
00000 Xxxxx Xxxx, Xxxxx, XX 00000 Cuyahoga
0000 Xxxxx Xxxxxx, Xxxxxx, XX 00000 Lake
0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 Fayette
000 Xxxxxx Xxxxx, Xxxxxxxxxx, XX 00000 Allegheny
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx, XX 00000 Xxxxx
0000 Xx. Xxxxxx Xxxxxxx, Xxxxxxx, XX 00000 Xxxxxx
0000 Xxxxx Xxxxxxxx Xxxx., Xxxxxx, XX 00000 Gwinnett
0000 Xxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000 Franklin
0000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000 Franklin
0000 Xxxxxxxxx Xxxxx, Xxxxxx, XX 00000 Xxxxx
00000 Xxxxx Xxxx, Xxxxxxxxxxx, XX 00000 DuPage
0000 Xxxxxxxx Xxx, Xxxxxxxxx, XX 00000 Fayette
0000 Xxxxx Xxxx, Xxxxxxxxxx Xxxxxxx, XX 00000 Cuyahoga
0000 Xxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000 Allegheny
0000 Xxxxxxxxxxx Xxxx, Xxxx XX 00000 Erie
0000 Xxxxxxx Xxxxx, Xxxx Xxxxxxx, XX 00000 Xxxxxx
0000 Xxxxxxxxxx-Xxxxxx Xxxx, Xxxxx, XX 00000 Trumbull
000 Xxxxxxxxxx Xxxxxx #000 (XxxXxxxxx Xxxxxx), Xxxxxxx, XX 00000 Norfolk
00000 Xxxxx Xxxx, Xxxxxxxx Xxxxxxx, XX 00000 Macomb
0000 Xxxxx Xxxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, XX 00000 Jefferson
00000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000 Xxxxxx
0000 Xxxxxxx Xxxx, Xxxxxx, XX 00000 Franklin
000 Xxxxx Xxxxx, Xxxxxxxxxx, XX 00000 Allegheny
0000 Xxx Xxxx Xxxx, Xxxxxxxxxxxx, XX 00000 Mecklenburg
0000 Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000 Xxxxxxxx
0000 Xxxxxxxxx Xxxxxxx XX, Xxxxxxxxxx, XX 00000 Kent
0000 Xxxxxx Xxxxxxx Xxxxx, Xxxxxxxxxxxx, XX 00000 Xxxxxx
ADDRESS COUNTY
------- ------
0000 Xxxxxxx Xxxx, Xxxxxx Xxxxx, XX 00000 Oakland
00000 Xxxxx Xxxx Xxxx, Xxxx Xxxx, XX 00000 Lake
000 Xxxxxx Xxxx Xxxxxx, Xxxxxxxx, XX 00000 Franklin
0000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxxxx, XX 00000 Allegheny
0000 Xxxx Xxxxxxx Xxxx, Xxxxxxx, XX 00000 Xxxxxx
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Lake
0000 Xxxxxxxxxx Xxxx, XxXxxxxx, XX 00000 Washington
000 Xxxxx Xxxxx Xxxx, Xxxxxxxxx Xxxxx, XX 00000 Oakland
0000 Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, XX 00000 Jefferson
0000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000 Cuyahoga
000 Xxxxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, XX 00000 Clermont
0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 Franklin
0000 X. Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 Xxxxx
0000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000 Xxxxx
0000 Xxxxxxxx Xxxxx Xxxx., Xxxxxxxx Xxxxx, XX 00000 Virginia Beach
000 X. Xxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000 Franklin
0000 Xxxxxxxx Xxxx, X.X., Xxxxxx, XX 00000 Xxxxx
0000 Xxxxx Xxxxxxx Xxxx., Xxxxxxxxxx, XX 00000 Xxxxx
0000 Xxxxx Xxxxxxx, Xxxxxxxxx Xxxxx, XX 00000 Kenton
00000 Xxxx Xxxx, Xxxxxxxx, XX 00000 Xxxxx
