EXHIBIT 10(z)
AMENDMENT NO. 5 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 4, 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 and Amendment No. 4
dated as of March 28, 2005 (the "Agreement"), have agreed to amend the Agreement
by this Amendment No. 5 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 3.1(b) is amended and restated in its entirety as
follows:
(b) Security Agreements. A properly executed Amendment No. 4 to
Third Amended and Restated Security Agreement in the form
attached hereto as Exhibit B-1 (the "Personal Property Security
Agreement"), a properly executed Amendment No. 2 to Amended and
Restated Intellectual Property Security Agreement in the form
attached hereto as Exhibit B-2 (the "Intellectual Property
Security Agreement") and various Leasehold Open End Mortgage,
Fixture Filing, Security Agreements and Assignment of Subleases
and Rents dated as of May 4, 2005 (the "Leasehold Mortgages" and,
collectively with the Personal Property Security Agreement and
the Intellectual Property Security Agreement, the "Security
Agreements").
1.3. Exhibit C-8 attached hereto amends and restates in its entirety
Exhibit C-7.
Section 2. Governing Law. This Amendment No. 5 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. 5 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. 5 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. 5 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. 5.
6.3. Executed versions of the Leasehold Mortgages.
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. 5 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. 5 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 00xx Xx., XX, Xxxxx Xxxxxx, XX 00000 Kent
0000 X. 00xx Xxxxxx, Xxxxxxxxx, Xxx 00000 DuPage
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
0000 Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000 Xxxxxxxx
ADDRESS COUNTY
------- ------
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
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
