EXHIBIT 10(u)
AMENDMENT NO. 2 TO
FIFTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED AS OF SEPTEMBER 22, 2003
THIS AMENDMENT XX. 0 ("Xxxxxxxxx Xx. 0") dated as of May 17, 2004 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 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 (the "Agreement"), have agreed
to amend the Agreement by this Amendment No. 2 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) 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, (iv) 4.5 to 1 on November 1, 2004 and (v) 4.0 to 1
on October 31, 2005 and thereafter.
1.7. Exhibit C-5 attached hereto amends and restates in its entirety
Exhibit C-4.
Section 2. Governing Law. This Amendment No. 2 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. 2 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. 2 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. 2 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. 2.
6.3. 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
2
Agreement. The parties hereto agree that this Amendment No. 2 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. 2 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: /s/ Xxxxxxx X. Xxxxxxx. Jr. By: /s/ Xxxxxx X. Xxxxx
--------------------------------- ---------------------------
Name: Xxxxxxx X. Xxxxxxx. Jr. Name: Xxxxxx 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: Xxxxxx X. Xxxxx
Telephone No.: 000-000-0000 Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
3
EXHIBIT C-4
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 00xx Xx., XX, Xxxxx Xxxxxx, XX 00000 Kent
0000 X. 00xx Xxxxxx, Xxxxxxxxx, I11 60517 DuPage
4
ADDRESS COUNTY
0000 Xxxxxxx Xxxx, Xxxxxxx Xxxxxxx, XX 00000 Xxxx
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 Xxxxxx Xxxxx Xxxxx, Xxxxxxxx, XX 00000 Jefferson
0000 Xxx Xxxx Xxxx, Xxxxxxxxxxxx, XX 00000 Mecklenburg
5
ADDRESS COUNTY
0000 Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000 Xxxxxxxx
0000 Xxxxxxxxx Xxxxxxx XX, Xxxxxxxxxx, XX 00000 Kent
0000 Xxxxxx Xxxxxxx Xxxxx, Xxxxxxxxxxxx, XX 00000 Xxxxxx
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
6
