<PAGE>
EXHIBIT 10(t)
AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED AS OF SEPTEMBER 22, 2003
THIS
AMENDMENT NO. 1 ("Amendment No. 1") dated as of December 31,
2003
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 (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 1.4 (b) is amended and restated in its entirety as
follows:
(b) Interest. Each Loan shall bear interest on the unpaid
principal balance of all Loans made by the Bank for each day from
the
day such Loan is made until it becomes due, at a fluctuating rate
per
annum which rate will be immediately adjusted upon the execution
of
this Amendment. Thereafter such rate will be adjusted based upon
the
Company's submission of financial information pursuant to Section
5.2
herein beginning with the quarter ending November, 1999. The
interest
rate adjustment will be effective the first Monday following
receipt
by the Bank of the Quarterly Compliance Certificate pursuant to
Section 5.4(c) herein. The interest rate will be established
according to the following schedule based upon the ratio of the
Indebtedness of the Company to EBITDA of the Company during the
immediately preceding twelve month period as of the date of
each
fiscal quarter end:
<TABLE>
<CAPTION>
Ratio at quarter end
Rate for following quarter
--------------------
------------------------------
<S>
<C>
Less than
Either the Prime Rate minus 25
2.0:1.0
basis points or the LIBOR Rate
plus 250 basis points
2.01 through
Either the Prime Rate plus 25
2.5:1.0
basis points or the LIBOR Rate
plus 300 basis points
Greater than
Either the Prime Rate plus 75
2.51:1.0
basis points or the LIBOR Rate
plus 350 basis points
</TABLE>
1
<PAGE>
;provided, however, that the interest rate will be Either the
Prime
Rate plus 75 basis points or the LIBOR Rate plus 350 basis
points
until the Company achieves a Fixed Charge Coverage Ratio of 1.25
to
1.0 as further described in Section 6.2(c).
Interest on all Loans shall be calculated on the basis of the
actual
number of days elapsed over a year of 360 days. As used in this
Agreement, the term "Prime Rate" on any day shall mean the rate
published or announced by the Bank as its prime rate which rate
may
not be the Bank's lowest rate. Any change in the interest rate on
a
Loan due to a change in the Prime Rate shall take effect on the
date
of such change in the Prime Rate. "LIBOR Rate" shall mean the
offered rate for U.S. Dollar deposits of not less than
$1,000,000.00
for a period of time equal to each Interest Period as of 11:00
A.M.
City of London, England time two London Business Days prior to
the
first date of each Interest Period of the Notes as shown on the
display designated as "British Bankers Assoc. Interest
Settlement
Rates" on the Telerate System ("Telerate"), Page 3750 or Page
3740,
or such other page or pages as may replace such pages on
Telerate
for the purpose of displaying such rate; provided, however, that
if
such rate is not available on Telerate then such offered rate
shall
be otherwise independently determined by the Bank from an
alternate,
substantially similar independent source available to the Bank
or
shall be calculated by the Bank by a substantially similar
methodology as that theretofore used to determine such offered
rate
in Telerate. "London Business Day" means any day other than a
Saturday,
Sunday or a day on which banking institutions are
generally authorized or obligated by law or executive order to
close
in the City of London, England. Each change in the rate to be
charged hereunder will become effective without notice on the
commencement of each Interest Period based upon the LIBOR Rate
then
in effect. "Interest Period" means each consecutive one, two,
three
or six month period (the first of which shall commence on the
date
of this Agreement) effective as of the first day of each
Interest
Period and ending on the last day of each Interest Period,
provided
that if any Interest Period is scheduled to end on a date for
which
there is no numerical equivalent to the date on which the
Interest
Period commenced, then it shall end instead on the last day of
such
calendar month. Under no circumstances will the interest rate on
the
Notes be more than the maximum rate allowed by applicable law.
1.2.
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
2
<PAGE>
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 fifty
percent
(50%) of the Company's annual Net Income that exceeds the amount
of
principal paid by the Company on the Term Loans during such
fiscal
year ; 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.
1.3.
Section 6.2(c) is amended and restated in its entirety as
follows:
(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 (I) 1.10 to 1.0 for the Fiscal
Period
ending February 15, 2004, (II) 1.15 to 1.0 for the Fiscal
Period
ending May 19, 2004, (III) 1.15 to 1.0 for the Fiscal Period
ending
August 1, 2004 and (IV) 1.25 to 1 for each Fiscal Period
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 C
