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EXHIBIT 10(u)
AMENDMENT NO. 2 TO
FIFTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED AS OF SEPTEMBER 22, 2003
THIS AMENDMENT NO. 2 ("Amendment No. 2") 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.
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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 Comp
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