EXHIBIT 10(s)
AMENDMENT NO. 1 TO
FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED AS OF OCTOBER 19, 2001
THIS AMENDMENT XX. 0 ("Xxxxxxxxx Xx. 0") dated as of April 30, 2002
between MAX & ERMA'S RESTAURANTS, INC., a Delaware corporation (the "Company"),
and THE PROVIDENT BANK, an Ohio banking corporation (the "Bank").
WITNESSETH:
WHEREAS, the Company and the Bank, parties to the Fourth Amended and
Restated Revolving Credit Agreement, dated as of October 19, 2001 (the
"Agreement"), have agreed to amend the Agreement by this Amendment No. 1 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 1.1 is amended and restated in its entirety as follows:
1.1 Commitment of the Bank.
1.1.1. Commitment. The Bank agrees, on the terms and
conditions of this Agreement and provided that no Event of
Default or Default (the definitions of those and other
capitalized terms used herein have the meanings provided in
Section 9) then exists, to make Loans to the Company at the
main office of the Bank, 0 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxx, from time to time on and after the date hereof but prior
to the Term Loan Maturity Date or the Revolving Credit
Maturity Date.
1.1.2. Maximum Commitment. The Bank agrees to extend
the following credit term facilities: (a) a term loan (the
"Term Loan") in the original principal amount of $23,000,000,
evidenced by the Term Promissory Note dated as of the date
hereof in the amount of $23,000,000, payable by the Company to
the Bank in 12 equal quarterly installments of principal of
$600,000 plus interest commencing May 1, 2002 and terminating
on February 1, 2005 (the "Term Loan Maturity Date") pursuant
to the terms thereof and Section 1.4 hereof, as such Term Loan
Maturity Date may be extended pursuant to Section 1.1.4 hereof
(the "Term Note") and (b) a revolving loan in the original
principal amount of $12,800,000 pursuant to the terms of a
Revolving Credit Note dated as of the date hereof (the
"Revolving Note" and, collectively with the Term Note, the
"Notes"). The maximum amount of all outstanding Loans of the
Bank to the Company under this Agreement shall not exceed
$35,800,000 (the "Maximum Commitment"). The Maximum Commitment
of the Bank
as adjusted from time to time is hereinafter called the
"Commitment" of the Bank.
1.1.3. Revolving Commitment. The $12,800,000
available to the Company under the Revolving Note shall be
hereinafter called the "Revolving Commitment." As of the
Revolving Credit Maturity Date, the Bank shall have no further
obligation to fund any Revolving Credit Loans under this
Agreement. Any amounts outstanding under the Revolving Credit
Note shall become due and payable on February 1, 2005
("Revolving Credit Maturity Date") pursuant to the terms
thereof and Section 1.4 hereof, as such Revolving Credit
Maturity Date may be extended pursuant to Section 1.1.5
hereof. No Commitment shall become effective until each of the
parties hereto shall have executed this Agreement or a
counterpart hereof.
1.1.4. Term Note Extension. The Term Loan may, at the
option of the Bank, be extended for a 12 month period on each
February 1, commencing February 1, 2003. If the Bank agrees to
extend the Term Loan or fails to deliver a notice of
non-extension by February 1, then the Term Loan Maturity Date
will be automatically redefined to mean the date one year
hence (i.e., February 1, 2005 to February 1, 2006). If the
Bank delivers a notice of non-extension on or before any
February 1, then the Term Loan Maturity Date shall be
automatically extended to the date 36 months after the then
existing Term Loan Maturity Date (the "Former Term Loan
Maturity Date") (i.e., February 1, 2005 to February 1, 2008),
and the Term Loan shall become payable in $600,000
installments (commencing on the May 1 occurring immediately
after the delivery of the Bank's notice of non-extension)
until the Former Term Loan Maturity Date, at which time the
quarterly installments will be paid in 12 installments equal
to the amount of principal outstanding on the Former Term Loan
Maturity Date divided by 12, so that the Term Loan shall be
paid in full when the final equal quarterly installment is
made on the extended Term Loan Maturity Date.
1.1.5. Revolving Commitment; Extension and
Conversion. The Revolving Commitment may, at the option of the
Bank, be extended for a 12 month period on each February 1,
commencing February 1, 2003.
(a) If the Bank agrees to extend the
Revolving Commitment or fails to deliver a notice of
non-extension by February 1, then the Revolving Credit
Maturity Date will be automatically redefined to mean the date
one year hence (i.e., from February 1, 2005 to February 1,
2006).
(b) If the Bank delivers a notice of
non-extension on or before any February 1, then the Revolving
Credit Maturity Date shall not be further extended, and the
Company shall have the option to (i) pay off the remaining
principal balance on the Revolving Credit Maturity Date or
(ii) if the Company sends a conversion notice to the Bank by
the March 1 occurring immediately after the Company's receipt
of a notice of non-extension, to convert the Revolving Credit
Commitment to a term loan, in
which case the balance of the Revolving Note shall
automatically convert to a term obligation with a maturity 60
months thereafter (the "Extended Maturity Date"), and in which
case the Company shall pay the remaining principal balance
over the extended term, with equal installments due each
quarter (commencing on the May 1 occurring immediately after
the delivery of the Bank's notice of non-extension) in an
amount equal to the then-remaining (i.e., March 1) principal
balance divided by 20, so that the obligations incurred under
the Revolving Note shall be paid in full when the final equal
quarterly payment is made on the Extended Maturity Date.
1.2. Section 1.2 is amended and restated in its entirety as follows:
1.2 Cancellation or Reduction of the Commitment by the
Company. During the period from and including the date of this
Agreement to but excluding the later of the Term Loan Maturity
Date (as extended) or the Revolving Credit Maturity Date (or
the Extended Maturity Date), the Commitment of the Bank may,
subject to the payment of the Interest Preservation Amount
described in Section 1.5, be cancelled or may be reduced
permanently from time to time by the Company in the amount of
$100,000 or any larger amount which is a whole multiple of
$100,000 upon 10 Banking Days' written notice to the Bank of
the Company's election to do so, which notice shall specify
the date when such cancellation or reduction shall be
effective and on the effective date of such reduction the
Commitment of the Bank shall be reduced; provided that-
(a) any such cancellation or reduction shall be
irrevocable;
(b) in the event of a cancellation of the Commitment
of the Bank, (i) the Notes shall be paid in full, (ii) all
Commitment Fees due to the date of cancellation shall be paid
in full and (iii) all expenses due pursuant to Section 10.7
hereof shall be paid in full; and
(c) in the event of a reduction of the Commitment of
the Bank to an amount less than the principal amount then
outstanding hereunder, the Notes shall be prepaid so that the
unpaid aggregate principal amount of the then outstanding
Loans does not exceed the Commitment of the Bank as so
reduced.
1.3. Section 1.3(c) is amended and restated in its entirety as follows:
(c) Agency Fee. As consideration for the Bank
agreeing to serve as agent and participate a portion of the
Commitment, the Company shall pay to the Bank an Agency Fee of
$25,000 on each November 1 thereafter until the later of the
Term Loan Maturity Date (as extended) or the Revolving Credit
Maturity Date (or the Extended Maturity Date).
1.4. Section 1.4(a) is amended and restated in its entirety as follows:
1.4 The Notes.
(a) Form. The Loans made by the Bank pursuant hereto
shall be evidenced by the Revolving Note of the Company
substantially in the form of Exhibit A-6 and the Term Note of
the Company substantially in the form of Exhibit A-7, payable
to the order of the Bank and representing the obligation of
the Company to pay the amount of the Commitment or, if less,
the aggregate unpaid principal amount of all Loans made by the
Bank, with interest thereon as prescribed in this Section 1.4.
The Notes shall (i) be dated the date of this Agreement, (ii)
be stated to mature on the respective Maturity Dates; and
(iii) bear interest at the applicable interest rate per annum
as provided in, and payable as specified in this Section 1.4.
Each Loan made by the Bank and each payment made on account of
principal on the Notes shall be recorded by the Bank, on its
books and records or endorsed on the grid attached to the
applicable Note, such books and records or endorsements to
constitute prima-facie evidence of the amount of all Loans and
payments; provided, however, that the failure of the Bank to
make such recordation shall not limit or otherwise affect the
obligations of the Company under the Notes.
1.5. Section 1.4(d) is amended and restated in its entirety as follows:
(d) Principal. Principal on the Loans shall be due
and payable pursuant to the terms of the Notes and shall be
due and payable in full on the respective Maturity Dates;
provided, however, that any Excess Cash Flow payments the
Company makes shall be applied to principal reduction of the
Term Note in the inverse order of maturity. The Company shall
be required to make additional principal payments on the Term
Loan based on the annual Net Income of the Company, commencing
for the fiscal year ending in 2003. The Company shall pay an
amount (the "Excess Cash Flow") equal to forty percent (40%)
of the Company's annual Net Income that exceeds the amount of
principal paid by the Company on the Term Loan during such
fiscal year multiplied by 1.5; provided, however, that such
payment shall never be greater than $500,000 for any fiscal
year. The Company shall pay the Excess Cash Flow on the
February 1 occurring immediately after each fiscal year end.
The Company shall be required to pay any Excess Cash Flow to
the Bank.
1.6. Section 1.5 is amended and restated in its entirety as follows:
1.5 Prepayments and Right to Reborrow. Except as set
forth below, outstanding Loans may be prepaid in whole at any
time or in part from time to time without premium or penalty.
No prepayment shall affect the Company's right to reborrow
from the Bank under the Revolving Commitment of the Bank up to
the permissible amount hereunder prior to the Revolving Credit
Maturity Date. The Company may prepay all or any portion of
the principal amount of the Loans bearing interest at a LIBOR
Rate, provided that if the Company makes any such prepayment
other than on the last day of an Interest Period, the Company
shall pay all accrued interest on the principal amount prepaid
with such prepayment and, on demand, shall reimburse the Bank
and hold the Bank harmless from all losses and expenses
incurred by the Bank as a result of such prepayment,
including, without limitation, any losses and expenses arising
from the
liquidation or reemployment of deposits acquired to fund or
maintain the principal amount prepaid. Such reimbursement
shall be calculated as though the Bank funded the principal
amount prepaid through the purchase of U.S. Dollar deposits in
the London, England interbank market having a maturity
corresponding to such Interest Period and bearing an interest
rate equal to the LIBOR Rate for such Interest Period, whether
in fact that is the case or not. The Bank 's determination of
the amount of such reimbursement shall be conclusive in the
absence of manifest error.
1.7. Section 1.7(A) is amended and restated in its entirety as follows:
1.7 Letters of Credit.
(A) The Company may request a Letter of
Credit by completing the Bank's then standard application for
a Letter of Credit and delivering the application to the Bank
at least two days before the date on which the Letter of
Credit is to be issued. On the date the Letter of Credit is to
be issued, the Bank shall deliver the Letter of Credit to the
Company, or to the Person designated by the Company. No Letter
of Credit shall be issued with an expiration date after the
Revolving Credit Maturity Date or which is payable in a
currency other than United States dollars. Except as otherwise
provided herein, all the terms of the Letter of Credit and
such standard application shall govern the Letter of Credit.
The amount of each Letter of Credit must be approved by the
Bank (provided that there shall never be more than $500,000 in
face amount of Letters of Credit outstanding), and the Bank
may disapprove a Letter of Credit request at any time for any
reason. The Revolving Commitment shall be reduced by the face
amount of any Letter of Credit.
1.8. Section 5.4 is amended and restated in its entirety as follows:
5.4 Quarterly Compliance Certificate. The quarterly
and annual financial statements furnished pursuant to Sections
5.2 and 5.3 shall be accompanied by a certificate of the chief
financial officer of the Company:
(a) No Event of Default. Stating that except
as disclosed in the certificate, such officer, after
reasonable investigation, has no knowledge of any (i) Event of
Default or (ii) Default;
(b) Financial Ratios. Setting forth, in
summary form, calculations showing the financial status of the
Company (at the end of, or, in the case of incurrence tests,
during such accounting Period) in respect of the restrictions
contained in Sections 6.2 and 6.3 hereof; and
(c) Interest Rate. Setting forth, in summary
form, calculations showing the ratio set forth in Section
1.4(b).
1.9. Sections 6.2(b), 6.2(c), 6.2(e) and 6.2(f) are hereby amended and
restated in their entirety as follows:
(b) Liabilities/Tangible Net Worth Ratio.
Permit the ratio of Liabilities to Tangible Net Worth to
exceed (i) 8.5 to 1 on April 30, 2002, (ii) 7.5 to 1 on
October 31, 2002, (iii) 5.0 to 1 on October 31, 2003, and (iv)
3.5 to 1 on October 31, 2004 and thereafter.
(c) Fixed Charge Coverage Ratio. Permit the
ratio of Fixed Charge Coverage Ratio at the end of any Fiscal
Period (as defined in Section 9) to be less than 1.25 to 1.
"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.
(e) Tangible Net Worth. Permit its Tangible
Net Worth to be less than (i) $6,000,000 from April 30, 2002
through October 31, 2002, (ii) $7,500,000 from November 1,
2002 through October 31, 2003, (iii) $9,000,000 from November
1, 2003 through October 31, 2004, (iv) $10,500,000 from
November 1, 2004 through October 31, 2005, and (v) $12,000,000
from November 1, 2005 to the later of the Revolving Credit
Maturity Date or the Term Loan Maturity Date.
(f) Interest Coverage Ratio. As of the end
for each Fiscal Period, permit the ratio of (a) (i) the
Company's net income during the Fiscal Period being measured
plus (ii) interest of the Company during the Fiscal Period
being measured plus (iii) taxes of the Company during the
Fiscal Period being measured plus (iv) one time non-cash
charges reflected within net income for the Company during the
Fiscal Period being measured to (b) the Company's interest
expense during the Fiscal Period being measured to be less
than 2.15 to 1.0 for each fiscal quarter end.
1.10. In Section 9, the following definitions are amended and restated
in their entirety:
"Commitment" is defined at Section 1.1.2.
"Current Liabilities" shall mean all Liabilities as
may properly be classified as current Liabilities in
accordance with GAAP and, prior to the
later of the Revolving Credit Maturity Date (or the Extended
Maturity Date) or the Term Loan Maturity Date (as extended),
shall include the amount of all Loans which are outstanding
hereunder which are due within the next twelve months.
"Net Income" shall mean for any period the net income
(loss) of the Company incurred during such period as
determined in accordance with GAAP.
"Notes" is defined at Section 1.1.2.
"Revolving Commitment" is defined at Section 1.1.2.
"Revolving Note" is defined at Section 1.1.2.
1.11. In Section 9, the definitions of Maturity Date, Term Note A, and
Term Note B are deleted and the following definitions are inserted:
"Extended Maturity Date" is defined at Section
1.1.5(b).
"Revolving Credit Maturity Date" is defined at
Section 1.1.3.
"Term Loan Maturity Date" is defined at Section
1.1.2.
"Term Note" is defined at Section 1.1.2.
1.12. Exhibits X-0, X-0 and A-5 to the Agreement are deleted from the
Agreement and Exhibits A-6 and A-7, in the forms attached to this Amendment No.
1, are added to the Agreement.
1.13. Exhibit C to the Agreement is deleted and is replaced by Exhibit
C-2 attached hereto.
Section 2. Governing Law. This Amendment No. 1 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. 1 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. 1 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.
1, the $12,800,000 Revolving Credit Note dated as of the date hereof, the
$23,000,000 Term Promissory Note dated as of the date hereof, Amendment No. 1 to
the Third Amended and Restated Security Agreement dated as of the date hereof
and such other instruments and agreements contemplated hereby (collectively, the
"Loan Documents") 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 the Loan Documents.
6.3. Payment of an $80,000 amendment fee.
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. 1 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. 1 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. THE PROVIDENT BANK
By: By:
------------------------------- ----------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx. Name: Xxxxxxx X. Xxxxx
Its: Chief Financial Officer Its: Vice President
Address for Notices: Address for Notices:
0000 Xxxxxxxxx Xxxxx 00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Xx. Attention: Xxxxxxx X. Xxxxx
Telephone No.: 000-000-0000 Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
EXHIBIT A-6
REVOLVING CREDIT NOTE
================================================================================
$12,800,000 Columbus, Ohio
April 30, 2002
================================================================================
On or before the later to occur of the Revolving Credit Maturity Date
or the Extended Maturity Date, for value received, the undersigned, MAX & ERMA'S
RESTAURANTS, INC., a Delaware corporation (the "Company"), hereby promises to
pay to the order of THE PROVIDENT BANK, an Ohio banking association (the "Bank")
or its assigns, as further provided herein, the principal amount of Twelve
Million Eight Hundred Thousand Dollars ($12,800,000) or, if such principal is
less, the aggregate unpaid principal amount of all loans made by the Bank to the
Company pursuant to this Revolving Credit Note under the Agreement referred to
in Section 1 hereof, together with interest on the unpaid principal balance from
time to time outstanding hereunder until paid in full at the rates determined in
accordance with the provisions of Section 1.4 of the Agreement, payable
quarterly on the last day of each January, April, July, and October, commencing
on the first such date following the date hereof. Both principal and interest
are payable in federal funds or other immediately available money of the United
States of America at the Main Office of the Bank, Xxx Xxxx Xxxxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000.
SECTION 1. LOAN AGREEMENT. This Revolving Credit Note is the Revolving
Note referred to in the Fourth Amended and Restated Revolving Credit Agreement
dated as of October 19, 2001, as amended by Amendment No. 1 dated as of the date
hereof (the "Agreement") among the Company and the Bank, as the same may be
amended, modified or supplemented from time to time, which Agreement, as
amended, is incorporated by reference herein. All capitalized terms used herein
shall have the same meanings as are assigned to such terms in the Agreement.
This Revolving Credit Note is entitled to the benefits of and is subject to the
terms, conditions and provisions of the Agreement and the Security Agreements
referred to therein. The Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events,
and also for repayments and reborrowings on account of the principal hereof
prior to maturity upon the terms, conditions and provisions specified.
SECTION 2. CONFESSION OF JUDGMENT. The undersigned Company 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 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. 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 3. WAIVER OF JURY TRIAL. THE BANK AND THE COMPANY HEREBY
VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN THE BANK AND THE COMPANY ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE BANK AND
THE COMPANY IN CONNECTION WITH THE LOAN DOCUMENTS, THIS NOTE, OR ANY OTHER
AGREEMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THEREWITH
OR THE TRANSACTIONS RELATED HERETO OR THERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT TO THE BANK TO ENTER INTO THE FINANCING TRANSACTION. IT SHALL NOT IN
ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY THE BANK'S ABILITY TO PURSUE ITS
REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY CONFESSION OF JUDGMENT OR COGNOVIT
PROVISION CONTAINED IN THE LOAN DOCUMENTS OR ANY OTHER DOCUMENT RELATED HERETO
OR THERETO.
The Company has caused this Revolving Credit Note to be duly executed
by its duly authorized officer 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.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Its: Chief Financial Officer
EXHIBIT A-7
TERM PROMISSORY NOTE
================================================================================
$23,000,000 Columbus, Ohio
April 30, 2002
================================================================================
For value received, the undersigned, MAX & ERMA'S RESTAURANTS, INC., a
Delaware corporation (the "Company"), hereby promises to pay to the order of THE
PROVIDENT BANK, an Ohio banking corporation, individually and as agent (the
"Bank") or its assigns, as further provided herein, the principal amount of
Twenty Three Million Dollars ($23,000,000) as provided in the Loan Agreement (as
defined in Section 1 below) on the dates specified in Section 2 hereof, with all
unpaid principal payable on the Term Loan Maturity Date. Both principal and
interest are payable in federal funds or other immediately available money of
the United States of America at the offices of the Bank at 00 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx.
SECTION 1. LOAN AGREEMENT. This Term Promissory Note is the Term Note
referred to in the Fourth Amended and Restated Revolving Credit Agreement dated
as of October 19, 2001, as amended by Amendment No. 1 dated as of the date
hereof (the "Loan Agreement") between the Company and the Bank, as the same may
be amended, modified or supplemented from time to time, is incorporated by
reference herein. All capitalized terms used herein shall have the same meanings
as are assigned to such terms in the Loan Agreement. This Note is entitled to
the benefits of and is subject to the terms, conditions and provisions of the
Loan Agreement. The Loan Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events,
and for repayments of principal prior to maturity hereof upon the terms,
conditions and provisions specified therein.
SECTION 2. PRINCIPAL AND INTEREST PAYMENTS. The principal hereof shall
be payable in quarterly installments of $600,000 commencing May 1, 2002 and
continuing until all remaining unpaid principal and interest is paid in full, as
the same may be adjusted as provided in the Loan Agreement. Interest shall be
paid at the terms and at the rates specified in Section 1.4 of the Loan
Agreement.
SECTION 3. CONFESSION OF JUDGMENT. 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 4. WAIVER OF JURY TRIAL. THE BANK AND THE COMPANY HEREBY
VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN THE BANK AND THE COMPANY ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE BANK AND
THE COMPANY IN CONNECTION WITH THE LOAN DOCUMENTS, THIS NOTE, OR ANY OTHER
AGREEMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THEREWITH
OR THE TRANSACTIONS RELATED HERETO OR THERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT TO THE BANK TO ENTER INTO THE FINANCING TRANSACTION. IT SHALL NOT IN
ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY THE BANK'S ABILITY TO PURSUE ITS
REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY CONFESSION OF JUDGMENT OR COGNOVIT
PROVISION CONTAINED IN THE LOAN DOCUMENTS OR ANY OTHER DOCUMENT RELATED HERETO
OR THERETO.
The Borrower has caused this Term Promissory Note to be duly executed
by its duly authorized officer 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.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Its: Chief Financial Officer
