Amendment No. 5 to Fifth Amended and Restated Revolving Credit Agreement between Max & Erma's Restaurants, Inc. and National City Bank

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Summary

This amendment updates the existing revolving credit agreement between Max & Erma's Restaurants, Inc. and National City Bank. It modifies certain security agreements, restates an exhibit, and confirms that all previous terms and security interests remain in effect. The amendment requires the company to provide specific documents and reaffirm its representations and warranties. It also includes a warrant of attorney allowing the bank to confess judgment if the company defaults. The agreement is governed by Ohio law and does not extinguish any prior obligations.

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EX-10.Z 4 l17754aexv10wz.txt EX-10(Z) EXHIBIT 10(z) AMENDMENT NO. 5 TO FIFTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT DATED AS OF SEPTEMBER 22, 2003 THIS AMENDMENT NO. 5 ("Amendment No. 5") 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/ William C. Niegsch, Jr. By: /s/ Douglas E. Houser --------------------------------- ------------------------------------ Name: William C. Niegsch, Jr. Name: Douglas E. Houser Its: Chief Financial Officer Its: Senior Vice President Address for Notices: Address for Notices: 4849 Evanswood Drive 155 East Broad Street Columbus, OH 43229 Columbus, OH 43215 Attn: William C. Niegsch, Jr. Attention: Douglas E. Houser Telephone No.: 614 ###-###-#### Telephone No.: 614 ###-###-#### Telecopy No.: 614 ###-###-#### EXHIBIT C-8 MAX & ERMA'S RESTAURANTS, INC. AT THE FOLLOWING LOCATIONS:
ADDRESS COUNTY ------- ------ 739 S. Third St., Columbus, Ohio 43206 Franklin 1904 Lake Club Drive, Columbus, Ohio 43232 Franklin 8901 Kingsridge Drive, Dayton, Ohio 45459 Montgomery 8930 Wesleyan Road, Indianapolis, IN 46268 Marion 4550 Kenny Road, Columbus, Ohio 43220 Franklin 31205 Orchard Lake Road, Farmington Hills, MI 48334 Oakland 1275 E. Dublin-Granville Road, Columbus, Ohio 43229 Franklin 8817 US 31 South, Indianapolis, IN 46227 Marion 630 Stanwix St., Pittsburgh, PA 15222 Allegheny 37714 Six Mile Road, Livonia, MI 48152 Wayne 411 Metro Place North, Dublin, Ohio 43017 Franklin 5533 Walnut Street, Shadyside, PA 15232 Allegheny 1910 Cochran Road, Pittsburgh, PA 15220 Allegheny 250 Merrill Street, Birmingham, MI 48009 Oakland 5899 East 86th Street, Indianapolis, IN 46250 Marion 220 City Center Drive, Columbus, Ohio 43215 Franklin 445 E. Eisenhower Blvd., Suite 1, Ann Arbor, MI 48108 Washtenaw 306 Rand Road, Arlington Heights, IL 60004 Cook 3750 W. Market St., Fairlawn, Ohio 44333 Summit 30105 Detroit Road, Westlake, Ohio 44115 Cuyahoga 2739 Fairfield Commons, Beavercreek, OH 45431 Greene 447 N. Milwaukee Ave., Vernon Hills, IL 60061 Lake 7800 Montgomery Road, Kenwood, Ohio 45236 Hamilton 27466 Novi Road, #B237, Novi, MI 48377 Oakland 3191 28th St., SE, Grand Rapids, MI 49508 Kent 2020 W. 75th Street, Woodridge, Ill 60517 DuPage
ADDRESS COUNTY ------- ------ 2475 Higgins Road, Hoffman Estates, IL 60195 Cook 1317 Hamilton Road, Gahanna, OH 43230 Franklin 8619 J.W. Clay Blvd., Charlotte, NC 28262 Mecklenburg 6930 Miller Lane, Dayton, Ohio 45414 Montgomery 936 Sheraton Drive, Mars, PA 16046 Allegheny 201 S. Bridewell Drive, Burr Ridge, IL 60521 DuPage 33675 Solon Road, Solon, OH 44139 Cuyahoga 6420 Grand Avenue, Gurnee, IL 60031 Lake 3030 Lakecrest Circle, Lexington, KY 40513 Fayette 130 Andrew Drive, Pittsburgh, PA 15275 Allegheny 2240 Canton Center North, Canton, MI 48187 Wayne 1155 Mt. Vernon Highway, Atlanta, GA 30338 Fulton 3040 Steve Reynolds Blvd., Duluth, GA 30095 Gwinnett 1515 Polaris Parkway, Columbus, OH 43240 Franklin 4279 Cemetery Road, Hilliard, OH 43026 Franklin 1391 Arrowhead Drive, Maumee, OH 43537 Lucas 28254 Diehl Road, Warrenville, IL 60555 DuPage 1848 Alysheba Way, Lexington, KY 40509 Fayette 7085 Engle Road, Middleburg Heights, OH 44130 Cuyahoga 2740 Mosside Blvd, Monroeville, PA 15146 Allegheny 2080 Interchange Road, Erie PA 16509 Erie 9226 Schulze Drive, West Chester, OH 45069 Butler 5792 Youngstown-Warren Road, Niles, OH 44446 Trumbull 300 Monticello Avenue #156 (MacArthur Center), Norfolk, VA 23510 Norfolk 44899 Mound Road, Sterling Heights, MI 48314 Macomb 2901 South Hurstbourne Parkway, Louisville, KY 40220 Jefferson 12195 North Meridian Street, Carmel, IN 46032 Marion 7480 Sawmill Road, Dublin, OH 43016 Franklin 900 Gamma Drive, Pittsburgh, PA 15238 Allegheny 6051 Timber Ridge Drive, Prospect, KY 40059 Jefferson 8700 Sam Furr Road, Huntersville, NC 28078 Mecklenburg 2631 Edmondson Road, Norwood, OH 45209 Hamilton
ADDRESS COUNTY ------- ------ 3940 Rivertown Parkway SW, Grandville, MI 49418 Kent 6260 Intech Commons Drive, Indianapolis, IN 46278 Marion 4255 Baldwin Road, Auburn Hills, MI 48326 Oakland 20506 North Rand Road, Deer Park, IL 60010 Lake 178 Easton Town Center, Columbus, OH 43219 Franklin 5150 William Flynn Highway, Gibsonia, PA 15044 Allegheny 2515 Lake Lansing Road, Lansing, MI 48912 Ingham 7890 Mentor Avenue, Mentor, OH 44060 Lake 4093 Washington Road, McMurray, PA 15317 Washington 122 North Adams Road, Rochester Hills, MI 48309 Oakland 3921 Summit Plaza Drive, Louisville, KY 40241 Jefferson 5020 Tiedeman Road, Brooklyn, OH 44144 Cuyahoga 805 Eastgate North Drive, Cincinnati, OH 45245 Clermont 8050 East Broad Street, Reynoldsburg, OH 43068 Franklin 7050 W. Central Avenue, Toledo, OH 43617 Lucas 6601 Newburgh Road, Westland, MI 48185 Wayne 4512 Virginia Beach Blvd., Virginia Beach, VA 23462 Virginia Beach 790 N. State Street, Westerville, OH 43081 Franklin 4320 Everhard Road, N.W., Canton, OH 44718 Stark 1210 Levis Commons Blvd., Perrysburg, OH 43551 Lucas