EXHIBIT 10(T)
FIFTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This Fifth Amended and Restated Revolving Credit Agreement dated as of
September 22, 2003 (the "Agreement"), is between Max & Erma's Restaurants, Inc.,
a Delaware corporation (the "Company"), and The Provident Bank, individually and
as agent (the "Bank") amends and restates in its entirety the Fourth Amended and
Restated Revolving Credit Agreement between the parties dated September 19,
2001, as the same was amended from time to time. The parties agree as follows:
SECTION 1
AMOUNT AND TERMS OF THE CREDIT
1.1 Commitment of the Bank.
1.1.1. Commitment. The Bank agrees, on the terms and
conditions of this Agreement and provided that no Event of
Default or Default (the definitions of those and other
capitalized terms used herein have the meanings provided in
Section 9) then exists, to make Loans to the Company at the
main office of the Bank, ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇, from time to time on and after the date hereof but prior
to the Term Loan Maturity Date, the Revolving Credit Maturity
Date or the Draw Note Maturity Date.
1.1.2. Maximum Commitment. The Bank agrees to extend
the following credit term facilities: (a) a term loan (the
"Term Loan") in the original principal amount of $20,600,000,
evidenced by the Amended and Restated Term Promissory Note
dated as of March 1, 2003 in the amount of $20,600,000 (which
$19,400,000 is currently the outstanding principal balance),
payable by the Company to the Bank in 12 equal quarterly
installments of principal of $600,000 plus interest commencing
May 1, 2003 and terminating on March 1, 2006 (the "Term Loan
Maturity Date") pursuant to the terms thereof and Section 1.4
hereof, as such Term Loan Maturity Date may be extended
pursuant to Section 1.1.4 hereof (the "Term Note"), (b) a
revolving loan in the original principal amount of $15,000,000
pursuant to the terms of an Amended and Restated Revolving
Credit Note dated as of March 1, 2003 (the "Revolving Note")
and (c) a multiple draw term loan in the maximum amount of
$6,000,000 pursuant to the terms of a Draw Promissory Note
dated as of the date hereof (the "Draw Note" and, collectively
with the Revolving Note and the Term Note, the "Notes"). The
maximum amount of all outstanding Loans of the Bank to the
Company under this Agreement shall not exceed $40,400,000 (the
"Maximum Commitment"). The Maximum Commitment of the Bank
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as adjusted from time to time is hereinafter called the
"Commitment" of the Bank.
1.1.3. Revolving Commitment. The $15,000,000
available to the Company under the Revolving Note shall be
hereinafter called the "Revolving Commitment." As of the
Revolving Credit Maturity Date (as defined below), the Bank
shall have no further obligation to fund any Revolving Credit
Loans under this Agreement. Any amounts outstanding under the
Revolving Credit Note shall become due and payable on March 1,
2006 ("Revolving Credit Maturity Date") pursuant to the terms
thereof and Section 1.4 hereof, as such Revolving Credit
Maturity Date may be extended pursuant to Section 1.1.5
hereof. No Commitment shall become effective until each of the
parties hereto shall have executed this Agreement or a
counterpart hereof.
1.1.4. Term Note Extension. The Term Loan may, at the
option of the Bank, be extended for a 12 month period on each
March 1, commencing March 1, 2004. If the Bank agrees to
extend the Term Loan or fails to deliver a notice of
non-extension by March 1, then the Term Loan Maturity Date
will be automatically redefined to mean the date one year
hence (i.e., March 1, 2006 to March 1, 2007). If the Bank
delivers a notice of non-extension on or before any March 1,
then the Term Loan Maturity Date shall be automatically
extended to the date 36 months after the then existing Term
Loan Maturity Date (the "Former Term Loan Maturity Date")
(i.e., March 1, 2006 to March 1, 2009), and the Term Loan
shall become payable in $600,000 installments (commencing on
the May 1 occurring immediately after the delivery of the
Bank's notice of non-extension) until the Former Term Loan
Maturity Date, at which time the quarterly installments will
be paid in 12 installments equal to the amount of principal
outstanding on the Former Term Loan Maturity Date divided by
12, so that the Term Loan shall be paid in full when the final
equal quarterly installment is made on the extended Term Loan
Maturity Date.
1.1.5. Revolving Commitment; Extension and
Conversion. The Revolving Commitment may, at the option of the
Bank, be extended for a 12 month period on each March 1,
commencing March 1, 2004.
(a) If the Bank agrees to extend the
Revolving Commitment or fails to deliver a notice of
non-extension by March 1, then the Revolving Credit Maturity
Date will be automatically redefined to mean the date one year
hence (i.e., from March 1, 2006 to March 1, 2007). Each annual
extension shall be accompanied by an amendment fee of $10,000.
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(b) If the Bank delivers a notice of
non-extension on or before any March 1, then the Revolving
Credit Maturity Date shall not be further extended, and the
Company shall have the option to (i) pay off the remaining
principal balance on the Revolving Credit Maturity Date or
(ii) if the Company sends a conversion notice to the Bank by
the March 31 occurring immediately after the Company's receipt
of a notice of non-extension, to convert the Revolving Credit
Commitment to a term loan, in which case the balance of the
Revolving Note shall automatically convert to a term
obligation with a maturity 60 months thereafter (the "Extended
Revolving Credit Maturity Date"), and in which case the
Company shall pay the remaining principal balance over the
extended term, with equal installments due each quarter
(commencing on the May 1 occurring immediately after the
delivery of the Bank's notice of non-extension) in an amount
equal to the then-remaining (i.e., March 31) principal balance
divided by 20, so that the obligations incurred under the
Revolving Note shall be paid in full when the final equal
quarterly payment is made on the Extended Revolving Credit
Maturity Date.
1.1.6. Draw Note. The $6,000,000 available to the
Company under the Draw Note shall be hereinafter called the
"Draw Commitment." The Draw Commitment shall not become
effective until each of the parties hereto shall have executed
this Agreement or a counterpart hereof. The Company shall be
permitted to borrow (individually a "Draw Loan" and
collectively the "Draw Loans") an amount not to exceed the
Draw Commitment. Prior to requesting a Draw Loan, the Company
must fulfill the Draw Loan Conditions Precedent described
below. After the receipt of a Draw Loan, the Company must
fulfill the Draw Loan Conditions Subsequent described below.
(a) In connection with each request for a
Draw Loan, the Company must provide the Bank with (i) the
identity of the specific equipment lease being paid with the
proceeds of the Draw Loan (ii) a letter executed by the lessor
of the equipment that details the "payoff" amount for the
equipment (and which payoff amount corresponds to the amount
of the Draw Loan requested by the Company) and (iii) a list of
all the equipment being acquired with the proceeds of the Draw
Loan (collectively, the "Draw Loan Conditions Precedent"). In
addition, the Company must provide to the Bank as soon as
possible, but in no event later than sixty (60) days after the
receipt of a Draw Loan, (1) a copy of a release or the ▇▇▇▇ of
sale of the leased equipment executed by the lessor in form
reasonably acceptable to the Bank and (2) UCC termination
statements regarding any UCC-1 financing statements the lessor
filed against the equipment (collectively, the "Draw Loan
Conditions Subsequent").
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(b) As of the December 31, 2003 (the "Draw
Note Conversion Date"), the Bank shall have no further
obligation to fund any Draw Loans under this Agreement or the
Draw Note. Any principal amounts outstanding under the Draw
Note shall become due and payable on the last day of the month
commencing on December 31, 2003 in monthly installments of
$125,000 until December 31, 2007 (the "Draw Loan Maturity
Date"), when all remaining principal on the Draw Note shall
become due and payable.
(c) Interest shall accrue on each Draw Loan
from the date the Draw Loan is made, and interest on the Draw
Loans shall be paid, in accordance with the provisions of
Section 1.4 hereof.
1.2 Cancellation or Reduction of the Commitment by the Company.
During the period from and including the date of this
Agreement to but excluding the later of the Term Loan Maturity
Date (as extended), the Revolving Credit Maturity Date (or the
Extended Revolving Credit Maturity Date) or the Draw Loan
Maturity Date, the Commitment of the Bank may, subject to the
payment of the Interest Preservation Amount described in
Section 1.5, be cancelled or may be reduced permanently from
time to time by the Company in the amount of $100,000 or any
larger amount which is a whole multiple of $100,000 upon 10
Banking Days' written notice to the Bank of the Company's
election to do so, which notice shall specify the date when
such cancellation or reduction shall be effective and on the
effective date of such reduction the Commitment of the Bank
shall be reduced; provided that-
(a) any such cancellation or reduction shall be
irrevocable;
(b) in the event of a cancellation of the Commitment
of the Bank, (i) the Notes shall be paid in full, (ii) all
Commitment Fees due to the date of cancellation shall be paid
in full and (iii) all expenses due pursuant to Section 10.7
hereof shall be paid in full; and
(c) in the event of a reduction of the Commitment of
the Bank to an amount less than the principal amount then
outstanding hereunder, the Notes shall be prepaid so that the
unpaid aggregate principal amount of the then outstanding
Loans does not exceed the Commitment of the Bank as so
reduced.
1.3 Fees.
(a) Commitment Fee. As consideration for the Commitment of the
Bank, the Company shall pay to the Bank a Commitment Fee on the daily average
unused portion of the Bank's Revolving Commitment and the Draw Commitment at a
rate per annum equal to 1/2 of 1%, commencing with the effective date hereof
(calculated on the basis of the actual number of
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days elapsed over a year of 360 days). The Commitment Fee shall be payable
quarterly on the date for payment of interest pursuant to Section 1.4 commencing
with the first such date after the effective date hereof.
(b) Additional Commitment Fee. The Company hereby agrees to
pay an additional commitment fee equal to 0.25% of any new funds above the
amount of the Maximum Commitment made available to the Company by the Bank in
the future. Any such new funds shall be subject to the terms of this Agreement
as amended from time to time.
(c) Agency Fee. As consideration for the Bank agreeing to
serve as agent and participate a portion of the Commitment, the Company shall
pay to the Bank an Agency Fee of $25,000 on each November 1 thereafter until the
later of the Term Loan Maturity Date (as extended), the Revolving Credit
Maturity Date (or the Extended Maturity Date) or the Draw Loan Maturity Date.
1.4 The Notes.
(a) Form. The Loans made by the Bank pursuant hereto shall be
evidenced by the Revolving Note of the Company substantially in the form of
Exhibit A-1,the Term Note of the Company substantially in the form of Exhibit
A-2 and the Draw Note of the Company substantially in the form of Exhibit A-3,
payable to the order of the Bank and representing the obligation of the Company
to pay the amount of the Commitment or, if less, the aggregate unpaid principal
amount of all Loans made by the Bank, with interest thereon as prescribed in
this Section 1.4. The Notes shall (i) be dated either March 1, 2003 (for the
Term Note and the Revolving Note) or the date hereof (for the Draw Note), (ii)
be stated to mature on the respective Maturity Dates; and (iii) bear interest at
the applicable interest rate per annum as provided in, and payable as specified
in this Section 1.4. Each Loan made by the Bank and each payment made on account
of principal on the Notes shall be recorded by the Bank, on its books and
records or endorsed on the grid attached to the applicable Note, such books and
records or endorsements to constitute prima-facie evidence of the amount of all
Loans and payments; provided, however, that the failure of the Bank to make such
recordation shall not limit or otherwise affect the obligations of the Company
under the Notes.
(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:
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Ratio at quarter end Rate for following quarter
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Less than 2.0:1.0 Either the Prime Rate minus 25 basis points or the LIBOR
Rate plus 250 basis points
2.01 through 2.5:1.0 Either the Prime Rate plus 25 basis points or the LIBOR
Rate plus 300 basis points
Greater than 2.51:1.0 Either the Prime Rate plus 75 basis points or the LIBOR
Rate plus 350 basis points
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.
(c) Interest Payments. Interest on the Loans shall be payable
quarterly on the last day of each January, April, July, and October, commencing
on the first such date following the initial Loan. To the extent permitted by
applicable law, the Bank may charge interest at the foregoing rates on all
interest and other amounts owing hereunder which are not paid when due.
(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 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
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pay an amount (the "Excess Cash Flow") equal to forty percent (40%) of the
Company's annual Net Income that exceeds the amount of principal paid by the
Company on the Term Loan during such fiscal year multiplied by 1.5; 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.
1.5 Prepayments and Right to Reborrow. Except as set forth below,
outstanding Loans may be prepaid in whole at any time or in part from time to
time without premium or penalty. No prepayment shall affect the Company's right
to reborrow from the Bank under the Revolving Commitment of the Bank up to the
permissible amount hereunder prior to the Revolving Credit Maturity Date. The
Company may prepay all or any portion of the principal amount of the Loans
bearing interest at a LIBOR Rate, provided that if the Company makes any such
prepayment other than on the last day of an Interest Period, the Company shall
pay all accrued interest on the principal amount prepaid with such prepayment
and, on demand, shall reimburse the Bank and hold the Bank harmless from all
losses and expenses incurred by the Bank as a result of such prepayment,
including, without limitation, any losses and expenses arising from the
liquidation or reemployment of deposits acquired to fund or maintain the
principal amount prepaid. Such reimbursement shall be calculated as though the
Bank funded the principal amount prepaid through the purchase of U.S. Dollar
deposits in the London, England interbank market having a maturity corresponding
to such Interest Period and bearing an interest rate equal to the LIBOR Rate for
such Interest Period, whether in fact that is the case or not. The Bank 's
determination of the amount of such reimbursement shall be conclusive in the
absence of manifest error.
1.6 Loans. Each Loan shall be made pursuant to the Bank's Automated
Line of Credit Service. Further, the Bank will, at the request of the Company
repay prior Loans pursuant to the Automated Line of Credit service. The Company
may request the Bank to make Loans by written or telephonic request made prior
to 2:00 p.m. Columbus, Ohio time. The proceeds of any such request will subject
to the satisfaction of the terms and conditions of this Agreement, promptly made
available to the Company by the Bank at the office of the Bank by crediting the
account of the Company on the books of such office of the Bank.
1.7 Letters of Credit.
(A) The Company may request a Letter of Credit by completing the
Bank's then standard application for a Letter of Credit and delivering the
application to the Bank at least two days before the date on which the Letter of
Credit is to be issued. On the date the Letter of Credit is to be issued, the
Bank shall deliver the Letter of Credit to the Company, or to the Person
designated by the Company. No Letter of Credit shall be issued with an
expiration date after the Revolving Credit Maturity Date or which is payable in
a currency other than United States dollars. Except as otherwise provided
herein, all the terms of the Letter of Credit and such standard application
shall govern the Letter of Credit. The amount of each Letter of Credit must be
approved by the Bank (provided that there shall never be more than $500,000 in
face amount of Letters of Credit outstanding), and the Bank may disapprove a
Letter of Credit request at any
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time for any reason. The Revolving Commitment shall be reduced by the face
amount of any Letter of Credit.
(B) The Company shall immediately reimburse the Bank for the
amount paid on all drafts drawn under Letters of Credit issued hereunder. If,
notwithstanding the foregoing sentence, the Company should fail to so
immediately reimburse the Bank, then, in addition to any other remedy which the
Bank may have with respect to such failure, any amount paid by the Bank on any
draft under a Letter of Credit shall be treated as a Loan (bearing interest as
provided in Section 1.4).
SECTION 2
GENERAL TERMS
2.1 Payments. The Company shall make all payments of principal,
interest and Commitment Fees to the Bank as payee at its main office, ▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, Ohio, in immediately available funds prior to 3:00
p.m., Cincinnati, Ohio time, on the date such payments shall become due in
accordance with the terms hereof and of the Notes.
2.2 Payment on Non-Banking Days. Whenever any payment to be made
hereunder or under the Notes shall be stated to be due on a day other than a
Banking Day, such payment shall be made on the next succeeding Banking Day and
such extension of time shall in such case be included in the computation of
payment of interest hereunder or under the Notes or the Commitment Fees
hereunder, as the case may be.
2.3 Setoffs. Upon the occurrence of any Event of Default, the Bank
shall ha the right to setoff against all obligations of the Company to the Bank
hereunder, under the Notes or under any of the Loan Documents, whether matured
or unmatured, all amounts owing to the Company by the Bank or any Affiliate of
the Bank, whether or not then due and payable, and all other funds or property
of the Company on deposit with or otherwise held by or in the custody of the
Bank or any Affiliate of the bank for the beneficial account of the Company.
2.4 Capital Adequacy. If, on or after the date hereof, the Bank shall
have determined that the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by the Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return below that achieved on the date of this Agreement on the Bank's
capital as a consequence of its obligations hereunder to a level below that
which the bank could have achieved but for such adoption, change or compliance
(taking into consideration the Bank's policies with respect to capital adequacy)
by an amount deemed by the Bank to be material, then, sixty days after the Bank
delivers notice to the Company regarding such circumstances, the Company shall
pay to the Bank such additional amount or amounts as will compensate the Bank
for such reduction.
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2.5 Interest After Maturity. Whenever any payment to be made hereunder,
under the Notes or under any of the Loan Documents shall become due and payable,
whether at the stated maturity thereof, by acceleration or otherwise, interest
thereon shall thereafter be payable at the interest rate per annum then in
effect plus 300 basis points.
2.6 Security. The obligations of the Company hereunder are secured
pursuant to the Security Agreements.
SECTION 3
CONDITIONS OF BORROWING
The obligation of the Bank to make the Loans to the Company provided
for hereunder shall be subject to the following conditions.
3.1 Conditions Precedent to Initial Loan. Prior to the initial Loan,
the Company shall furnish to the Bank all of the following, each dated the date
hereof (unless otherwise indicated) in form and substance satisfactory to the
Bank:
(a) Notes. Properly executed forms of the Revolving Note, the Term
Note and the Draw Note, each drawn to the order of the Bank in the principal
amount of the Bank's Commitment.
(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") and 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, collectively with the Personal Property Security Agreement, the
"Security Agreements").
(c) Financing Statements, Assignments, Etc.. Copies of duly
completed and executed Uniform Commercial Code financing statements and/or
statements of assignment and/or statements of amendment with respect to the
property covered by the Security Agreements in proper form for filing in all
jurisdictions in which such filing is necessary or appropriate to establish,
perfect, protect and preserve the rights, titles, interests, remedies, powers,
privileges and Liens of the Bank in such property.
(d) Liens and Other Searches. Results of record searches by a
Person satisfactory to the Bank, of the Uniform Commercial Code filings which
may have been filed with respect to the personal property of the Company in the
state and county filing offices and real estate records in each of the
jurisdictions requested by the Bank, and of judgment and tax Liens with respect
to the Company.
(e) Certified Resolutions, Certificate of Incorporation and Good
Standing Certificate of Company. A certified copy of the resolutions of the
Board of Directors of the
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Company authorizing the execution, delivery and performance of this Agreement,
the Notes issued hereunder, and the Security Agreements, a Certificate of
Incorporation (certified by the Delaware Secretary of State) of the Company and
a Good Standing Certificate (issued by the Delaware Secretary of State) of the
Company.
(f) Participation Agreement. The Fifth Amended and Restated
Participation Agreement among the Bank, National City Bank and The Huntington
National Bank shall have been acknowledged by the Company.
(g) Closing Fee. The Company shall pay a Closing Fee of $30,000 to
the Bank, to be divided among the Bank and the participant lenders.
(h) Payments Due at Closing. The Company shall pay the
out-of-pocket expenses of the Bank incurred in connection with the closing,
including, without limitation, legal fees and lien search expenses.
3.2 Conditions Precedent to Each Loan. The obligation of the Bank to
make any Loan hereunder (including the initial Loan) shall be subject to the
further condition precedent that, at the time of each Loan, the Company shall be
in compliance with all of the provisions, warranties, covenants and conditions
contained in this Agreement, and there shall exist no Default or Event of
Default as set forth in Section 7. In addition, each Draw Loan shall also be
subject to the Draw Loan Conditions Precedent. Each borrowing hereunder shall be
deemed to be a representation and warranty by the Company on the date of such
borrowing that the representations and warranties contained in Section 4 are
true and correct, and that the Company is then in compliance with the covenants
contained in Sections 5 and 6.
SECTION 4
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Bank, which representations
and warranties will survive the execution and delivery of this Agreement and the
Notes, as follows:
4.1 Organization and Authority. The Company is a corporation duly
incorporated, and is existing and in good standing under the laws of the
jurisdiction of its incorporation and has all requisite power and authority,
corporate or otherwise, to own or lease its properties and to carry on its
business as now conducted. The Company has all requisite power and authority,
corporate or otherwise, to enter into and perform all of its obligations under
this Agreement, the Notes, and the Security Agreements. The execution, delivery
and performance of this Agreement, the Notes and each of the Loan Documents have
been duly authorized by the Company by appropriate corporate action, there is no
prohibition, either in law, in its Certificate of Incorporation or Bylaws, in
any order, writ, injunction or decree of any court or arbitrator presently in
effect having applicability to the Company, or in any agreement to which it is a
party, which in any way prohibits or would be violated by the execution and
carrying out of this Agreement, the Notes or any of the Loan Documents in any
respect; this Agreement, the Notes and each of the Loan Documents have been duly
executed and delivered and are the legal, valid
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and enforceable obligations of the Company, except as enforceability hereof or
thereof may be limited by bankruptcy, insolvency or laws affecting creditors'
rights generally.
4.2 Qualification. The Company is duly qualified or licensed and in
good standing as a foreign corporation duly authorized to do business in each
jurisdiction in which the character of the properties owned or leased or the
nature of the activities conducted makes such qualifications or licensing
necessary.
4.3 Financial Statements. The Company has furnished to the Bank audited
financial statements of the Company including (a) an audited balance sheet as at
October 31, 2002; (b) an audited statement of operations for the year ended
October 31, 2002, (c) an audited statement of shareholders' equity for the year
ended October 31, 2002; and (d) an audited statement of cash flow for the year
ended October 31, 2002. The Company has also furnished to the Bank unaudited
financial statements for the interim period ending on, and as of August 3, 2003.
Except as disclosed to the Bank in writing prior to the date hereof, such
financial statements are complete and correct in all material respects, and
fairly reflect the financial condition of the Company as at such dates and the
results of operations of the Company for the periods ended on such dates. Since
August 3, 2003, no material or adverse change has occurred in the businesses
property or condition (financial or other) of the Company except as disclosed to
the Bank in writing prior to the date hereof.
4.4 Tax Returns and Payments. The Company has filed all tax returns
required by law to be filed and has paid all taxes, assessments and other
governmental charges levied upon any of its properties, assets, income or
franchises, other than those not yet delinquent. The charges, accruals and
reserves on the books of the Company in respect to income taxes for all fiscal
periods are adequate in the opinion of the Company, and the Company knows of no
unpaid assessment for additional income taxes for any fiscal period or of any
basis therefor.
4.5 Titles to Properties: Liens. The Company has good and marketable
title to all of its properties, in each case including the properties and assets
reflected in the balance sheet as of August 3, 2003 except properties held under
leases which are capitalized in accordance with GAAP and except properties and
assets disposed of since the date of such balance sheet in the ordinary course
of business, and none of such properties or assets is subject to any Lien except
as permitted by Section 6.1 (a). The Company enjoys peaceful and undisturbed
possession under all leases under which it operates, and all of such leases are
valid, subsisting and in full force and effect. None of such leases contains any
provision restricting incurrence of Indebtedness by the Company, or any
provision which materially adversely affects or in the future may (so far as the
Company can now foresee) materially adversely affect the operations of the
Company under any such lease.
4.6 Litigation, Etc. There is no action, proceeding or investigation
pending or, to the Company's knowledge, threatened (or any basis therefor known
to the Company) which questions the validity of this Agreement, the Notes or any
of the Loan Documents, or any action taken or to be taken pursuant hereto or
thereto, or which might result, either in any case or in the aggregate, in any
material adverse change in the business, operations, affairs or condition of the
11
Company or its properties and assets or in any material liability on the part of
the Company except as set forth on Schedule 4.6.
4.7 Compliance with Other Instruments, Etc. The Company is not in
violation of any provision of its Certificate of Incorporation or Bylaws, as
amended to date, or to the Company's knowledge, of any agreement, instrument,
judgment, decree, order, statute or governmental law, rule or regulation
applicable to the Company and the execution, delivery and performance of this
Agreement, the Notes or any of the Loan Documents will not result in any such
violation or be in conflict with or constitute a default under any such
provisions or result in the creation of any Lien upon any of the properties or
assets of the Company which now or in the future may (so far as the Company can
now foresee) materially and adversely affect the business, operations, affairs
or condition of the Company or its properties or assets.
4.8 ERISA. Without in any way limiting the scope of Section 4.7, the
Company has not (a) incurred any material accumulated funding deficiency within
the meaning of the Employee Retirement Income Security Act of 1974, as amended
from time to time ("ERISA") (b) incurred any material liability to the Pension
Benefit Guaranty Corporation established under ERISA (or any successor thereto
under ERISA) in connection with any employee benefit plan established or
maintained by the Company; nor (c) had any tax assessed against it by the
Internal Revenue Service for any alleged violation under Section 4975 of the
Internal Revenue Code.
4.9 Patents, Trademarks, Etc. The Company owns or possesses all the
patents, trademarks, service marks, trade names, copyrights, licenses and rights
in respect of the foregoing, necessary for the conduct of its business as now
conducted, without any known conflict with the rights of others except such
conflicts which would not materially and adversely affect the business of the
Company.
4.10 Liabilities. The Company has no material Liabilities, direct or
contingent except (a) as disclosed in the balance sheet of the Company as of
August 5, 2001; (b) as disclosed to the Bank in writing prior to the execution
of this Agreement; and (c) debt, contractual commitments, canceled purchase
orders, and accruals, all arising out of the ordinary course of business.
4.11 Subsidiaries and Affiliates. The Company has no Subsidiaries or
Affiliate except those set forth on Schedule 4.11 attached hereto.
4.12 Disclosure. Neither this Agreement nor any other document,
certificate or statement furnished to the Bank or to special counsel for the
Bank by the Company or its counsel in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained herein
and therein not misleading. There is no fact known to the Company which
materially and adversely affects or in the future may (so far as the Company can
now foresee) materially and adversely affect the business, operations, affairs
or condition of the Company or any of its properties or assets which has not
been set forth in this Agreement or in the other documents, certificates or
statements furnished to the Bank by or on behalf of the Company prior to the
date hereof in connection with the transactions contemplated hereby.
12
4.13 No Governmental Approvals. No authorization, consent, approval or
exemption of, or registration, qualification or filing with, any governmental
authority is required to permit the execution, delivery and performance by the
Company of this Agreement, the Notes, or the Security Agreements. The Company is
not an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
4.14 Investments, Loans and Advances. The Company (a) is not a general
partner in any partnership or a member in any joint venture other than as
disclosed on Schedule 4.1 1, (b) does not own or hold the assets, stocks, bonds,
notes or other evidence of Indebtedness or any other security of any Person
other than as disclosed on Schedule 4.11 or in the financial statements
delivered to the Bank pursuant to Section 4.3, nor (c) is a party to any
agreement relating to commodity futures, financial futures or similar
investments.
4.15 Insurance. All of the properties and operations of the Company of
a character usually insured by Persons of established reputation engaged in the
same or a similar business similarly situated are adequately insured, by
financially sound and reputable insurers, against loss or damage of the kinds
and in the amounts customarily insured against by such Persons; and the Company
carries, with such insurers in customary amounts, such other insurance,
including public and product liability insurance, as is usually carried by
Persons of established reputation engaged in the same or a similar business
similarly situated.
4.16 Environmental Matters. To the best of the Company's knowledge,
there are no materials presently located- on any real property owned by, leased
to or operated by the Company which are radioactive or toxic, or which under
federal, state or local law, statute, ordinance or regulations, or court or
administrative order or decree, or private agreement (the "Environmental
Requirements") require special handling in collection, storage, treatment or
disposal ("Hazardous Materials") which are not being handled in accordance with
the Environmental Requirements and no part of such real property has been
contaminated by any Hazardous Materials.
4.17 Security. Each Note is entitled to the benefits of, and is secured
by valid Liens created by the Security Agreements.
4.18 Perfection. The provisions of the Security Agreements are
effective to create in favor of the Bank legal, valid and enforceable security
interests in all right, title and interest of the Company in the Collateral, as
defined therein. All necessary filings, recordings and actions have been taken
so that the security interests created by the Security Agreements constitute
perfected security interests in all right, title and interest of the Company in
the Collateral superior in right to any "Collateral Interest" (as defined
below), existing or future, which the Company or any third Person may have
against the Collateral or interests therein except as expressly permitted under
this Agreement or the Security Agreements, and such filings are the only filings
necessary to give constructive notice to third Persons of the security interest
created thereby. The term "Collateral Interest" shall include Liens created
under the Uniform Commercial Code, Liens of record, and consensual Liens created
by the Company which are not of record.
13
4.19. Stock Redemption. Since October 1, 2001, the Company has redeemed
190,844 shares of is issued and outstanding common stock and has paid a total of
$2,789,375 in such redemptions.
SECTION 5
AFFIRMATIVE COVENANTS
Until all Loans and other sums due and owing under this Agreement to
the Bank have been paid in full and the Company no longer has any right to
borrow hereunder, the Company covenants and agrees as follows.
5.1 Use of Proceeds. The Company shall use the Loan proceeds disbursed
pursuant to this Agreement for (a) repayment of term indebtedness owing to the
Bank, (b) store expansion, (c) common stock repurchases and (d) general working
capital purposes; provided, however, that the maximum amount of Loan proceeds
that may be used to repurchase common stocks is $20,000,000.
5.2 Periodic Financial Statements. The Company shall furnish to the
Bank:
(a) Within 45 days after the end of its first three quarterly
accounting periods of its fiscal year (i) a balance sheet of the Company as at
the close of such period; (ii) a statement of operations for the Company for
such period and for the year to date; and (iii) a statement of cash flows as at
the close of such period; all in reasonable detail, prepared in accordance with
GAAP and certified as complete and correct, subject to changes resulting from
year-end adjustments, by the chief financial officer of the Company.
(b) On or before the 15th day of each four week accounting period a
statement of operations for each of the Company's restaurants for the preceding
month, prepared in accordance with GAAP and certified as complete and correct,
subject to changes resulting from year-end adjustments, by the chief financial
officer of the Company.
(c) Within 45 days after the end of each quarterly accounting
period of the Company's fiscal year, a report that lists (i) all new store
openings in such quarter, (ii) the addresses of all new stores (including the
county where such store is located), (iii) the proceeds used by the Company from
Loans made hereunder to acquire assets that are intended to be financed in a
Permitted Sale/Leaseback with an Approved Sale/Leaseback Creditor and (iv) the
total number of shares of the common stock of the Company redeemed by the
Company, and the total of the redemption prices paid by the Company, during such
quarter.
5.3 Annual Financial Statements. The Company shall furnish to the Bank
within 90 days after the close of each fiscal year a complete annual audit
report, including (a) a balance sheet of the Company as at the end of such
fiscal year; and (b) statements of operations, shareholders' equity and cash
flow for such fiscal year; all in reasonable detail and prepared in accordance
with GAAP and accompanied by an unqualified opinion thereon of Deloitte &
14
Touche, or other independent auditors of recognized national standing selected
by the Company and acceptable to the Bank.
5.4 Quarterly Compliance Certificate. The quarterly and annual
financial statements furnished pursuant to Sections 5.2 and 5.3 shall be
accompanied by a certificate of the chief financial officer of the Company:
(a) No Event of Default. Stating that except as
disclosed in the certificate, such officer, after reasonable investigation, has
no knowledge of any (i) Event of Default or (ii) Default;
(b) Financial Ratios. Setting forth, in summary form,
calculations showing the financial status of the Company (at the end of, or, in
the case of incurrence tests, during such accounting Period) in respect of the
restrictions contained in Sections 6.2 and 6.3 hereof; and
(c) Interest Rate. Setting forth, in summary form,
calculations showing the ratio set forth in Section 1.4(b).
5.5 Notice of Event of Default. In addition to the certificate
furnished pursuant to Section 5.4, the Company shall furnish to the Bank,
forthwith upon any executive officer of the Company obtaining knowledge of any
Default or Event of Default, a certificate specifying the nature and period of
the existence thereof, and what action the Company has taken or is taking or
proposes to take in respect thereof.
5.6 Auditors' Certificate. The annual audit report called for by
Section 5.3 shall be accompanied by a certificate prepared by the Company's
independent auditors stating that except as disclosed in the certificate they
have knowledge of any Event of Default or Default which relates to the financial
and accounting matters set forth in Sections 6 and 7.
5.7 Maintenance of Properties and Insurance. The Company shall at all
times maintain in good repair, working order and condition all properties used
or useful in the business of the Company and from time to time will make all
appropriate repairs, renewals and replacements thereof- maintain insurance upon
its property of such character and amounts as are usually maintained by
companies engaged in like business; furnish to the Bank, upon request, a
statement of its insurance coverage.
5.8 Inspection. Upon request of the Bank, the Company shall allow any
authorized representatives of the Bank to visit and inspect any of its
properties, to examine and make copies of and from its books of record and
account and to discuss its affairs, finances and accounts with its officers,
employees and independent accountants, and shall furnish to the Bank any
information regarding its business affairs and financial condition within a
reasonable time after receipt of a written request therefor. Except (i) as the
Bank deems it necessary in connection with the enforcement of its rights arising
out of any Default or as required by law or with respect to disclosures to bank
regulatory authorities or the independent auditors or counsel or the employees,
officers or directors of the Bank, (ii) disclosure to any actual or potential
participant
15
or assignee of the Bank's rights under this Agreement, or (iii) as consented to
by the Company, the Bank will not publish or disclose to any third Person any
information gained under any inspection conducted pursuant to this Section 5.8
unless and until such information is or becomes a matter of public knowledge.
5.9 Payment of Taxes and Claims. The Company shall promptly pay and
discharge all taxes and assessments levied and assessed or imposed upon its
property or upon its income as well as all claims which, if unpaid, might by law
become a Lien upon its property; provided, however, that nothing herein
contained shall require the Company to pay any such taxes, assessments or claims
so long as the Company shall in good faith contest the validity and stay the
execution and enforcement thereof.
5.10 Reports, Etc. The Company shall furnish to the Bank copies of all
material which the Company shall send to any class of its security holders or
file with the Securities and Exchange Commission or any national securities
exchange including, but not limited to, all registration statements, annual
reports on Form 10-K, quarterly reports on Form 10-Q, reports on Form 8-K, proxy
material and annual reports to shareholders, and any and all amendments thereof
or supplements thereto, within 15 days after mailing or filing such materials.
5.11 Preservation of Corporate Existence, Etc.: Business. Subject to
the provisions of Section 6.1(d) hereof, the Company shall, at all times
preserve and keep in full force and effect its corporate existence, rights and
franchises. The Company will engage primarily in a business of the same general
character as that now conducted.
5.12 Compliance with Laws, Etc. The Company shall comply in all
material respects with all statutes, laws, ordinances and governmental rules,
regulations and orders to which it is subject or which are applicable to its
business, properties and assets.
5.13 Books and Records. The Company shall keep adequate records and
books of account in which complete entries will be made in accordance with
generally accepted accounting procedures consistently applied, reflecting all
financial transactions.
5.14 Notice of Litigation. The Company shall notify the Bank in writing
promptly of any litigation, arbitration proceeding or administrative
investigation, inquiry or other proceeding to which the Company is or hereafter
may become a party which may involve any risk of any material judgment or
liability which would exceed the amounts covered by insurance by $100,000 or
more or which may otherwise result in any materially adverse change in the
business or assets or in the condition (financial or otherwise) of the Company
or which may impair the ability of the Company to perform this Agreement.
5.15 ERISA. The Company shall comply in all material respects with the
applicable provisions of ERISA. The Company shall furnish to the Bank (a) as
soon as possible, and in any event within one Banking Day after any executive
officer of the Company knows or has reason to know that any Reportable Event (as
described in ERISA) with respect to any plan of the Company has occurred, a
statement of the chief financial officer of the Company setting forth details as
to such Reportable Event and the action which is proposed to be taken with
respect
16
thereto, together with a copy of the notice of such Reportable Event given to
the Pension Benefit Guaranty Corporation, (b) promptly after filing with the
Internal Revenue Service, copies of each annual report with respect to each plan
subject to ERISA, (c) promptly upon filing with the Pension Benefit Guaranty
Corporation, a copy of any notice from the Company or the administrator of any
such plan to the Pension Benefit Guaranty Corporation that any such plan is to
be terminated, (d) promptly after receipt thereof, a copy of any notice the
Company, any such plan or the administrator of any such plan may receive from
the Pension Benefit Guaranty Corporation to terminate any such plan or to
appoint a trustee to administer any such plan, (e) promptly after receipt
thereof, a copy of any notice the Company or the administrator of such plan may
receive from the Internal Revenue Service relating to the disqualification of
any previously qualified plan, and (f) promptly after any executive officer of
the Company knows or has reason to know that the Company will be involved in a
withdrawal or partial withdrawal from a multiemployer plan, a statement to that
effect and setting forth the details of such withdrawal or partial withdrawal,
including the estimated liability of the Company with respect thereto.
5.16 Performance of Contracts. The Company shall perform and comply
with all of its agreements if non-performance thereof could materially adversely
affect the business or credit of the Company or could impair the ability of the
Company to perform this Agreement, the Notes or any of the Loan Documents.
5.17 Environmental Matters. If at any time the Company obtains notice
that any real property owned by, leased to or operated by the Company has
located therein Hazardous Materials, the Company shall, within 30 days after
receipt of such notice, take or cause to be taken, at its sole expense, such
actions as may be necessary to comply with all Environmental Requirements.
5.18. Landlord Waivers. Immediately after execution hereof, the Company
shall use its best efforts to obtain from its landlords, in those jurisdictions
where such landlords are given a statutory Lien superior to or pari passu with
the Lien granted to the Bank under the Loan Documents, a Landlord's Waiver and
Consent in a form acceptable to the Bank.
5.19. Management. The Company shall retain ▇▇▇▇ ▇. ▇▇▇▇▇▇ in the
capacity of Chairman of the Board and Chief Executive Officer of the Company, or
replaced by an individual performing similar duties who shall be satisfactory to
the Bank within 180 days from the date ▇▇. ▇▇▇▇▇▇ shall cease to function in
such capacity.
5.20. Bank Accounts. The Company will establish and maintain the Bank
as its principal bank of account and primary depositary. The Company will, at
all times, maintain a compensating balance of at least $100,000 in its
depository account maintained at the Bank.
5.21. Interest Rate Protection. The Company shall maintain an interest
rate protection agreement concerning a minimum of $20,000,000 of the Commitment
in a form substantially similar to the interest rate swap described in the
letter agreement dated December 1, 1999 between the Company and National City
Bank. In addition, the Company shall have the option
17
of entering into an interest rate protection agreement for all amounts
outstanding under the Draw Note after the Draw Note Conversion Date.
SECTION 6
NEGATIVE COVENANTS
Until all Loans and other sums due and owing under this Agreement to
the Bank have been paid and the Company no longer has the right to borrow
hereunder, unless the Bank shall have otherwise agreed in writing, the Company
covenants and agrees as follows.
6.1 Restrictions. The Company will not either directly or indirectly:
(a) Liens. Create, assume, or suffer to exist any mortgage, pledge,
encumbrance, security interest, lien or charge of any kind (collectively,
"Liens") upon any of its property or assets, whether now owned or hereafter
acquired, or assign or otherwise convey any right to receive income, except.
(i) Liens securing taxes, assessments, fees or other
governmental charges or levies or securing the claims
of materialmen, mechanics, carriers, warehousemen,
landlords and other similar persons, the payment of
which is not at the time required by Section 5.9;
(ii) Liens incurred or deposits made in the ordinary course
of business (A) in connection with workers'
compensation, unemployment insurance, social security
and other similar laws, or (B) to secure the
performance of bids, tenders, sales, contracts, public
or statutory obligations, surety, customs, appeal and
performance bonds and other similar obligations not
incurred in connection with the borrowing of money, the
obtaining of advances or the payment of the purchase
price of property;
(iii) Attachment, judgment and other similar Liens arising in
connection with court proceedings, provided, however,
that the execution or other enforcement of such Liens
is effectively stayed and the claims secured thereby
are currently being contested in good faith by
appropriate proceedings and as to which the Company
shall have set aside on its books adequate reserves in
accordance with GAAP;
(iv) Easements, rights of way, restrictions, leases,
installations of public utilities, title imperfections
and restrictions, reservations in land patents, zoning
ordinances and other similar encumbrances affecting
real or tangible personal property, which in the
aggregate do not materially detract from the value of
such property or
18
materially impair its use in the operations of the
business of the Company taken as a whole;
(v) Liens securing purchase money obligations respecting
personal property of the Company so long as such Liens
apply only to the personal property being purchased or
leased and not otherwise subject to the Lien of the
Bank;
(vi) Other Liens existing on the date hereof to the extent
shown in Schedule 6.1 attached hereto;
(vii) Liens securing the repayment of Indebtedness owed by
the Company to the Bank;
(viii) Existing Liens of General Electric Capital Corporation
encumbering not more than four (4) restaurant locations
which shall secure Indebtedness of the Company incurred
in a Permitted Sale/Leaseback; and
(ix) Liens related to Indebtedness incurred in a Permitted
Sale/Leaseback.
(b) Subsidiaries. Create or suffer to exist any Subsidiaries
other than those listed on Schedule 4.11 hereof unless such Subsidiaries sign
the appropriate documentation subjecting each such Subsidiary to the terms and
conditions of this Agreement including, without limitation, terms which evidence
that the repayment of the Indebtedness is secured by all of the assets of such
Subsidiary.
(c) Contingent Liabilities. Assume, guarantee, endorse,
contingently agree to purchase or otherwise become liable upon the obligation of
any one or more Persons if the amount of all such guaranties, endorsements, and
other contingent Liabilities at any one time outstanding exceeds $100,000 except
those liabilities associated with the establishment of a new wholly-owned
subsidiary, the sole purpose of which is to operate one or more Italian theme
restaurants, or become a general partner in any partnership other than (i) those
partnerships reflected in Schedule 6.1(c) or (ii) those partnerships established
to own and operate one or more Max & Erma's restaurants as long as the
partnership(s) are consolidated into the financial statements of the Company
provided to the Bank pursuant to Sections 5.2 and 5.3 hereof and such
partnerships and the Company execute documents, in form and substance acceptable
to the Bank, that allow the Bank to obtain a first priority security interest in
the assets of the partnerships, prohibit transfers of assets from the Company to
the partnerships and prohibit the assumption of partnership Indebtedness by the
Company.
(d) Merger, Consolidation and Sale of Assets; Change of Control;
Change of Management. Merge or consolidate with any other corporation, or
liquidate, or sell, lease, transfer or otherwise dispose of (whether in one
transaction or in a series of transactions) all or a substantial part of its
assets; provided, however, that a Permitted Sale/Leaseback with an
19
Approved Sale/Leaseback Creditor shall be permitted. The Company shall not
suffer a Change of Control to occur. "Change of Control" means that the
individuals serving as the officers and the Board of Directors of the Company as
of the date of this Agreement fail to own at least 30% of the outstanding common
stock of the Company or the composition of the Board of Directors of the Company
changes so that at least 6 (which 6 Directors must include ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇
▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.) of the 8 Directors sitting in such
office as of the date of this Agreement are not serving as a Director of the
Company without the prior written consent of the Bank. The Company shall not
suffer a change in management of the Company such that ▇▇▇▇ ▇. ▇▇▇▇▇▇ is no
longer the President and either ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. is no
longer an officer of the Company, without the prior written consent of the Bank.
(e) Sale and Leaseback. Enter into any agreement with any Person
providing for the leasing by the Company of real or personal property which has
been or is to be sold or transferred by the Company to such Person or of real or
personal property intended to be used for substantially the same purpose as the
property sold or transferred by the Company; provided, however, that any future
sale and leaseback transaction with Franchise Finance Corporation of America,
General Electric Capital Corporation or any other creditor that issues a
commitment (in form and substance satisfactory to the Bank) to provide
sale/leaseback financing to the Company (an "Approved Sale/Leaseback Creditor")
shall be deemed to be permitted hereunder if it meets all the following
conditions: (1) no Default or Event of Default exists hereunder and (2) the
Company has received reasonably equivalent value in the transaction (a
"Permitted Sale/Leaseback").
(f) Accounts Receivable. Discount or sell any of its notes or
accounts receivable.
(g) Investments. Acquire or purchase the assets of any Person or
acquire or purchase the outstanding securities of any Person, or make any
additional investments in or capital contributions to any Person; provided,
however, that this prohibition shall not apply to the following: (i) purchases
of (A) U. S. Government securities directly or pursuant to repurchase agreements
with the Bank, (B) certificates of deposit of the Bank and (C) commercial paper
rated A-1 or P-1 if all of such investments have a maturity of one year or less;
or (ii) any such purchase or acquisition of assets for the sole purpose of
establishing or converting such assets into one or more Max & Erma's restaurants
as long as (A) the assets are consolidated into the financial statements of the
Company provided to the Bank pursuant to Sections 5.2 and 5.3 hereof and (B) the
Company executes documents, in form and substance acceptable to the Bank, that
allow the Bank to obtain a first priority security interest in such assets,
prohibit the transfer of assets from the Company to any entity owning the assets
and prohibit the assumption of Indebtedness by the Company in connection with
the acquisition of such assets; or (iii) the investment or capital contribution
of up to $2,500,000 in a new wholly owned subsidiary established to operate one
or more Italian theme restaurants. The investment limitation for this subsidiary
shall no longer apply after the Company has provided certification to the Bank
along with any supporting documentation which the Bank may reasonably request
that for the six months immediately preceding the date of such certification (A)
a minimum of four such restaurants have been in existence, and (B) the aggregate
Net Income for all such restaurants as
20
evidenced by the restaurant Income Statements for the six month period prepared
in the form attached hereto as Exhibit 6.1(g) is equal to or in excess of
$250,000.
(h) Loans and Advances. Make any loans or advances in excess of an
aggregate of $100,000 at any one time outstanding.
6.2 Financial Ratios. The Company will not:
(a) Current Ratio. After November 1, 2002, permit the ratio of
Current Assets to Current Liabilities at any time to be less than 0.35 to 1.
(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, and (iv) 3.5
to 1 on October 31, 2004 and thereafter.
(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 1.25 to 1. "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 Capital Expenditures on such restaurants during the Fiscal
Period. "Revolving Credit Usage" means the amount of Revolving Loans outstanding
under the Revolving Note on the last day of the Fiscal Period that is being
measured.
(d) Earnings Before Taxes. As of each fiscal quarter end, permit
the sum of its net income before taxes plus one time non-cash charges reflected
within net income for the then-present fiscal quarter and the one immediately
preceding fiscal quarter to be less than $0.
(e) Tangible Net Worth. Permit its Tangible Net Worth to be less
than (i) $7,500,000 from November 1, 2002 through October 31, 2003, (ii)
$9,000,000 from November 1, 2003 through October 31, 2004, (iii) $10,500,000
from November 1, 2004 through October 31, 2005, and (iv) $12,000,000 from
November 1, 2005 to the later of the Revolving Credit Maturity Date, the Draw
Loan Maturity Date or the Term Loan Maturity Date.
(f) Interest Coverage Ratio. As of the end for each Fiscal Period,
permit the ratio of (a) (i) the Company's net income during the Fiscal Period
being measured plus (ii) interest of the Company during the Fiscal Period being
measured plus (iii) taxes of the Company
21
during the Fiscal Period being measured plus (iv) one time non-cash charges
reflected within net income for the Company during the Fiscal Period being
measured to (b) the Company's interest expense during the Fiscal Period being
measured to be less than 2.15 to 1.0 for each fiscal quarter end.
(g) Senior Debt to EBITDA. At the end of any Fiscal Period,
permit the ratio of (i) the Company's Indebtedness during the Fiscal Period
being measured to (ii) the Company's EBITDA during the Fiscal Period being
measured to be greater than 3.0 to 1.0.
6.3 Dividends and Purchases. The Company will not declare or pay any
dividends on, or make any distribution with respect to, any shares of capital
stock of the Company of any class.
6.4 Transactions with Affiliates. The Company will not enter into any
transaction, including, without limitation, the purchase, sale or exchange of
any property or the rendering of any service, with any Affiliate of the Company
except in the ordinary course of and pursuant to the reasonable requirements of
the business of the Company and upon fair and reasonable terms no less favorable
to the Company than would obtain in an arm's length transaction with a Person
not an Affiliate of the Company.
6.5 Limitation on Store Openings; Notice of Store Openings. The Company
will not open more than ten new stores per fiscal year. The company will notify
the Bank of each new store opening by delivering an updated Exhibit C that
contains a complete list of all borrower's operating stores.
SECTION 7
EVENTS OF DEFAULT AND REMEDIES
If any of the following events ("Events of Default") shall occur and be
continuing:
(a) Principal Payments. The Company shall default in the payment of
the principal of the Notes when and as the same shall become due and payable,
after having received written notification of such payment being due, whether at
the due date thereof or by acceleration or otherwise;
(b) Interest Payments and Fees. The Company shall default in the
payment of interest on the Notes, or the payment of any Commitment Fee, when and
as the same shall become due and payable, whether at the due date thereof or by
acceleration or otherwise, provided such default shall continue for a period of
10 days;
(c) Representations and Warranties. Any representation or warranty
made by the Company in this Agreement or in connection with any Loans hereunder,
or in any Loan Document, agreement, report, certificate, financial statement, or
other instrument furnished in connection with this Agreement or the Loans
hereunder shall prove to be false or misleading in any material respect;
22
(d) Negative Covenants. The Company shall fail to observe or
perform any covenant, condition or agreement in Section 6 of this Agreement;
(e) Other Covenants. The Company shall fail to observe or perform
any covenant, condition or agreement (other than those mentioned in Section 6)
to be observed or performed pursuant to the terms hereof or the terms of any
Loan Document, provided such default shall continue unremedied for 30 days after
written notice thereof to the Company by the Bank;
(f) Cross Default. (i) The Company or any Subsidiary shall default
with respect to the payment of any Indebtedness other than Indebtedness
represented by the Notes, or (ii) any event or condition shall occur which
enables the holder of any Indebtedness (other than Indebtedness represented by
the Notes) or any Person acting on such holder's behalf to accelerate the
maturity thereof, or (iii) the holder of any Indebtedness other than
Indebtedness represented by the Notes shall accelerate the maturity of such
Indebtedness; provided no Default under this Section 7(f) shall be deemed to
occur where the amount, individually or in the aggregate, of such Indebtedness
does not exceed $200,000;
(g) Judgments. One or more judgments from which no appeal may be
taken or with respect to which the time to appeal has expired for the payment of
money aggregating $200,000 or more shall be rendered against the Company and/or
any Subsidiary and the same shall remain undischarged for a period of 30
consecutive days during which the execution shall not be effectively stayed;
(h) Bankruptcy, Etc. The Company shall (i) apply for or consent to
the appointment of a receiver, trustee or liquidator for it or for any of its
property- (ii) admit in writing its inability to pay its debts as they mature;
(iii) make a general assignment for the benefit of creditors; (iv) be
adjudicated a bankrupt or insolvent; or (v) file a voluntary petition in
bankruptcy, or a petition or an answer seeking reorganization or an arrangement
with creditors or to take advantage of any bankruptcy, reorganization,
insolvency, readjustment of debt, dissolution or liquidation law or statute, or
answer admitting the material allegations of a petition filed against it in any
proceeding under any such law or if corporate action shall be taken by the
Company for the purpose of effecting any of the foregoing;
(i) Reorganization, Receiver, Etc. An order, judgment or decree
shall be entered without the application, approval or consent of the Company by
any court of competent jurisdiction, approving a petition seeking reorganization
of the Company or appointing a receiver, trustee or liquidator of the Company or
of all or a substantial part of the assets thereof, and such order, judgment or
decree shall continue unstayed and in effect for any period of 60 days,
(j) ERISA. A Reportable Event (as defined in ERISA) shall have
occurred with respect to any Plan (as defined therein) and, within 30 days after
the reporting of such Reportable Event to the Bank, the Bank shall have notified
the Company in writing that (i) it has made a determination that, on the basis
of such Reportable Event, there are reasonable grounds
23
for the termination of such Plan by the Pension Benefit Guaranty Corporation or
for the appointment by the appropriate United States District Court of a trustee
to administer such Plan; and (ii) as a result thereof an Event of Default exists
hereunder; or a trustee shall be appointed by a United States District Court to
administer any Plan; or the Pension Benefit Guaranty Corporation shall institute
proceedings to terminate any Plan;
(k) Collateral Default. Any default shall occur pursuant to the
terms of any of the Loan Documents.
then (i) the Bank at any time thereafter during the
continuance of any such Event of Default specified above (other than in Section
(h) or (i)), may, by written notice to the Company terminate the Commitment of
the Bank (if still in existence), and declare the entire principal amount of the
Notes to be due and payable forthwith, whereupon the Notes including all
principal and interest and all other amounts payable hereunder or under any Loan
Document shall forthwith become due and payable; and (ii) automatically upon the
occurrence of any of the events specified in Section (h) or (i) the Commitment
of the Bank shall terminate (if still in existence) and the Notes, including all
principal and interest and all other amounts payable hereunder or under any Loan
Document shall become immediately due and payable, in either case without
presentment, demand, protest, or notice of any kind, all of which are hereby
expressly waived, anything contained herein or in the Notes or the Loan
Documents to the contrary notwithstanding.
SECTION 8
ASSIGNMENTS/PARTICIPATIONS
8.1 Assignment by the Company. The Company may not assign its rights or
obligations hereunder or under the Notes without the prior written consent of
the Bank.
8.2 Assignments by the Bank. The Bank may assign any of the Loans, the
Notes, or its Commitment without the prior consent of the Company.
8.3 Participations. The Bank may sell or agree to sell to one or more
other Persons a participation in all or any part of any Loans held by it or any
Loan made or to be made by it.
8.4 Information. Upon the request of the Bank, the Company shall
furnish any information concerning the Company required to be furnished under
this Agreement to assignees and participants (including prospective assignees
and participants).
SECTION 9
DEFINITIONS
9.1 Definitions. For purposes of this Agreement, the following terms
shall have the meanings specified.
24
"Affiliate" with respect to any Person shall mean each Person
that directly or indirectly (through one or more intermediaries or otherwise),
controls, is controlled by, or is under common control with such Person.
"Agreement" is defined in the preamble.
"Approved Sale/Leaseback Creditor" is defined at Section 6.1(e).
"Bank" is identified in the preamble.
"Banking Days" shall mean days other than Saturdays, Sundays and
other legal holidays or days on which the principal office of the Bank is
closed.
"Capital Expenditures" shall mean, as to any Person, for any
period, expenditures (including the aggregate amount due under capital leases
incurred during such period but excluding such amounts under capital leases of
assets as to which inclusion of which would cause such amount to be double
counted for such period) made by such Person to acquire or construct fixed
assets, plant and equipment (including renewals, improvements and replacements)
during such period, computed in accordance with GAAP.
"Commitment" is defined at Section 1.1.2.
"Commitment Fee" is defined at Section 1.3.
"Company" is identified in the preamble.
"Counsel" is identified at Section 3.1 (f).
"Current Assets" shall mean all assets which may properly be
classified as current assets in accordance with GAAP.
"Current Liabilities" shall mean all Liabilities as may properly be
classified as current Liabilities in accordance with GAAP and, prior to the
later of the Revolving Credit Maturity Date (or the Extended Maturity Date), the
Term Loan Maturity Date (as extended) or the Draw Loan Maturity Date, shall
include the amount of all Loans which are outstanding hereunder which are due
within the next twelve months.
"Default" shall mean any condition or event which constitutes an
Event of Default or which would become an Event of Default with the giving of
notice or lapse of time or both (unless cured or waived).
"Draw Commitment" is defined at Section 1.1.6.
"Draw Loan" is defined at Section 1.1.6.
"Draw Loan Maturity Date" means December 31, 2007.
25
"Draw Note" is defined at Section 1.1.2.
"Draw Note Conditions Precedent" is defined at Section 1.1.6(a).
"Draw Note Conditions Subsequent" is defined at Section 1.1.6(a).
"Draw Note Conversion Date" is defined at Section 1.1.6.
"EBITDA" shall mean earnings of the Company before interest, taxes,
depreciation and amortization, as determined in accordance with GAAP.
"Environmental Requirements" is defined at Section 4.16.
"ERISA" is defined at Section 4.8.
"Events of Default" is defined at Section 7.
"Extended Revolving Credit Maturity Date" is defined at Section
1.1.5(b).
"Fiscal Period" for purposes of calculating the ratios pursuant to
Sections 6.2(c), (f) and (g) prior to October 29, 2001, each Fiscal Period will
begin on October 30, 2000 and end on each Fiscal quarter end date, commencing
with the Fiscal quarter ending February 18, 2001. After October 29, 2001, the
Period will end on each fiscal quarter end date, and will include the
immediately preceding four fiscal quarters. Prior to October 29, 2001, the
income and expenses relating to the Period will be annualized for the purpose of
this calculation by multiplying such income or expense by the ratio of fifty-two
divided by the number of weeks contained within the Period.
"Former Term Loan Maturity Date" is defined at Section 1.1.4.
"GAAP" means generally accepted accounting principles consistently
applied, as reflected in the financial statements delivered pursuant to Section
4.3 hereof.
"Hazardous Materials" is defined at Section 4.16.
"Indebtedness" shall mean any Liabilities representing obligations
for borrowed money or the deferred purchase price of property or services
(except accruals and trade accounts payable arising in the ordinary course of
business) including, without limitation, capitalized lease obligations, and
Liabilities similar to the foregoing of other Persons which are secured by a
Lien on any asset of the Company, or guaranteed directly or indirectly by the
Company; provided, however, that Indebtedness shall not include any Capital
Expenditures which qualify for a Permitted Sale/Leaseback with an Approved
Sale/Leaseback Creditor.
"Inventory" shall mean all raw materials, work in process, finished
goods and materials and supplies of any kind, nature or description which are or
might be used or consumed
26
in the business of the Company or used in connection with the manufacturing,
packing, shipping, advertising, selling or finishing of such goods, merchandise
and other personal property, and all goods, merchandise and other personal
property wherever located, to be furnished by the Company under any contract or
contract for service or held for sale or lease, whether now owned or hereafter
acquired, and all documents of title or other documents representing the
foregoing.
"Letter of Credit" means a commercial letter of credit issued
hereunder by the Bank pursuant to this Agreement on behalf of the Company.
"Liabilities" as applied to any Person, shall mean (a) all items
(except items of capital stock of capital surplus, of general contingency
reserves or of retained earnings and amounts attributable to minority interest,
if any) which in accordance with GAAP would be included in determining total
liabilities as shown on the liability side of a balance sheet of such Person as
at the date as of which Liabilities are to be determined, including specifically
capitalized lease obligations and the reimbursement obligations under a Letter
of Credit and (b) all obligations secured by any Lien or conditional sale or
other title retention agreement to which any property or asset owned or held by
such Person is subject, whether or not the obligations secured thereby shall
have been assumed (excluding non-capitalized leases which may amount to title
retention agreements).
"Liens" are identified at Section 6.1 (a).
"Loan" shall mean a loan made by the Bank pursuant to Section 1,
including without limitation Draw Loans, Revolving Credit Loans and Term Loans.
"Loan Documents" shall mean the Notes, the Security Agreements and
all other documents, instruments and certificates to be delivered hereunder or
thereunder.
"Maximum Commitment" is defined at Section 1.1(b).
"Net Income" shall mean for any period the net income (loss) of the
Company incurred during such period as determined in accordance with GAAP.
"Notes" is defined at Section 1.1.2.
"Permitted Sale/Leaseback" is defined at Section 6.1(e).
"Person" shall mean and include an individual, partnership,
corporation, trust, unincorporated organization, a government or any department
or agency thereof or any other entity.
"Prime Rate" is defined at Section 1.4(b).
"Revolving Commitment" is defined at Section 1.1.2.
27
"Revolving Credit Loan" means a Loan made pursuant to the Revolving
Commitment.
"Revolving Credit Maturity Date" is defined at Section 1.1.3.
"Revolving Note" is defined at Section 1.1.2.
"Security Agreements" is defined at Section 3.1 (b).
"Subordinated Debt" shall mean all unsecured Indebtedness of the
Company maturing more than 12 months from the date of determination thereof
which in each case shall be subordinated to all Loans and all other amounts owed
to the Bank, all on specific terms and conditions satisfactory to and approved
in writing by the Bank prior to the incurrence thereof.
"Subsidiary" shall mean any corporation which is incorporated under
the laws of the United States or Canada at least a majority of the outstanding
voting stock of which shall, at the time as of which any determination is being
made, be owned by the Company either directly or through Subsidiaries.
"Tangible Net Worth" shall mean the total of the capital stock (net
of treasury stock), paid in surplus and retained earnings (deficit) as
determined in accordance with GAAP, minus the following items (without
duplication of deductions), if any, appearing on the balance sheet of the
Company:
(a) all deferred charges (net of amortization);
(b) the book amount of all assets which would be treated as
intangibles (including capital leases) under GAAP, including, without
limitation, such items as good will, unamortized debt discount and
expense and corporate organization expenses, treasury stock, trademarks,
trademark applications, trade names, service marks, brand names,
copyrights, patents, patent applications and licenses, and rights with
respect to the foregoing; and
(c) any write-up in the book amount of any asset resulting from a
revaluation thereof from the book amount entered upon acquisition.
"Term Loan Maturity Date" is defined at Section 1.1.2.
"Term Note" is defined at Section 1.1.2.
"Unsubordinated Indebtedness" as applied to any Person, shall mean
all Indebtedness of such Person less Subordinated Debt of such Person.
"Wholly Owned Subsidiary" shall mean a Subsidiary, all of the
voting stock (other than directors' qualifying shares) of which and all other
stock and equity securities of
28
which are owned by the Company, or by the Company and one or more Wholly Owned
Subsidiaries.
9.2 Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP consistent with those applied
in the preparation of the financial statements of the Company at the date
hereof.
SECTION 10
MISCELLANEOUS
10.1 Term of Agreement: Successors and Assigns. This Agreement and all
covenants, agreements, representations and warranties made herein and in the
certificates delivered pursuant hereto shall survive the making by the Bank of
the Loans and the execution and delivery to the Bank of the Notes and shall
continue in full force and effect until the termination of the Commitment or
until payment in full of the Notes, whichever is later. Whenever in this
Agreement either of the parties hereto are referred to, such reference shall be
deemed to include the permitted successors and assigns of such party; and all
terms and provisions of this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective permitted successors and
assigns.
10.2 Notices. Notices, demands and communications shall be deemed to
have been properly given to the Company when deposited in the United States
mail, registered or certified, postage prepaid, and addressed to the Company at
▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention- Chief
Financial Officer, whether or not the same are actually received by the Company.
Except for purposes of notification of an Event of Default hereunder, such
communication shall be effective only upon receipt by the Company at the address
indicated. Any communication to the Bank shall be deemed properly given if
similarly mailed and addressed to The Provident Bank, ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
10.3 No Implied Waivers. No delay on the part of the bank in exercising
any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
privilege preclude any other or further exercise thereof. The rights and
remedies herein expressly specified are cumulative and not exclusive of any
other rights and remedies which the Bank would otherwise have.
10.4 Amendments, Modifications, Etc. No amendment, modification,
termination, or waiver of any provision of this Agreement or of the Notes nor
consent to any departure by the Company therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Bank, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. No notice or demand on the Company in any
case shall entitle the Company to any other or further notice or demand in
similar or other circumstances.
29
10.5 Applicable Law. This Agreement and the Notes shall be deemed to be
contracts made under the laws of the State of Ohio, and for all purposes shall b
construed in accordance with the laws of such state.
10.6 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
10.7 Expenses. All legal fees, costs or expenses, incurred by the Bank
in connection with the preparation, execution, delivery and enforcement of this
Agreement, the Notes or any of the Loan Documents shall be paid by the Company.
10.8 Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereto were upon the
same instrument. Complete sets of counterparts shall be lodged with the Company
and the Bank.
10.9 Merger. This Agreement, the Notes and the Loan Documents reflect
the entire understanding of the parties with respect to their subject matter and
supersede all prior agreements or understandings with respect thereto in their
entirety.
10.10 Headings. Headings of the sections of this Agreement are for
convenience only and shall not affect the construction of this Agreement.
10.11 Effective Date. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties.
10.12 Confession of Judgment. The undersigned Company 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 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. 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.
30
The parties hereto have caused this Agreement to be duly executed by
their respective duly authorized officers 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: By:
-------------------------------- --------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Its: Chief Financial Officer Its: Vice President
31
EXHIBIT A-1
AMENDED AND RESTATED REVOLVING CREDIT NOTE
================================================================================
$15,000,000 Columbus, Ohio
March 1, 2003
================================================================================
On or before the later to occur of the Revolving Credit Maturity Date
or the Extended Maturity Date, for value received, the undersigned, MAX & ERMA'S
RESTAURANTS, INC., a Delaware corporation (the "Company"), hereby promises to
pay to the order of THE PROVIDENT BANK, an Ohio banking association (the "Bank")
or its assigns, as further provided herein, the principal amount of Fifteen
Million Dollars ($15,000,000) or, if such principal is less, the aggregate
unpaid principal amount of all loans made by the Bank to the Company pursuant to
this Amended and Restated Revolving Credit Note under the Agreement referred to
in Section 1 hereof, together with interest on the unpaid principal balance from
time to time outstanding hereunder until paid in full at the rates determined in
accordance with the provisions of Section 1.4 of the Agreement, payable
quarterly on the last day of each January, April, July, and October, commencing
on the first such date following the date hereof. Both principal and interest
are payable in federal funds or other immediately available money of the United
States of America at the Main Office of the Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
SECTION 1. LOAN AGREEMENT. This Amended and Restated Revolving Credit
Note is the Revolving Note referred to in the Fourth Amended and Restated
Revolving Credit Agreement dated as of October 19, 2001, as amended by Amendment
No. 1 dated as of April 30, 2002 and Amendment No. 2 dated as of the date hereof
(the "Agreement") among the Company and the Bank, as the same may be amended,
modified or supplemented from time to time, which Agreement, as amended, is
incorporated by reference herein. All capitalized terms used herein shall have
the same meanings as are assigned to such terms in the Agreement. This Amended
and Restated Revolving Credit Note is entitled to the benefits of and is subject
to the terms, conditions and provisions of the Agreement and the Security
Agreements referred to therein. The Agreement, among other things, contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events, and also for repayments and reborrowings on account of the
principal hereof prior to maturity upon the terms, conditions and provisions
specified. This Amended and Restated Revolving Credit Note amends and restates
in its entirety the Revolving Credit Note dated April 30, 2002 in the original
principal amount of $12,800,000.
SECTION 2. CONFESSION OF JUDGMENT. The undersigned Company 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 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. 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
32
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 3. WAIVER OF JURY TRIAL. THE BANK AND THE COMPANY HEREBY
VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN THE BANK AND THE COMPANY ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE BANK AND
THE COMPANY IN CONNECTION WITH THE LOAN DOCUMENTS, THIS NOTE, OR ANY OTHER
AGREEMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THEREWITH
OR THE TRANSACTIONS RELATED HERETO OR THERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT TO THE BANK TO ENTER INTO THE FINANCING TRANSACTION. IT SHALL NOT IN
ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY THE BANK'S ABILITY TO PURSUE ITS
REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY CONFESSION OF JUDGMENT OR COGNOVIT
PROVISION CONTAINED IN THE LOAN DOCUMENTS OR ANY OTHER DOCUMENT RELATED HERETO
OR THERETO.
The Company has caused this Amended and Restated Revolving Credit Note
to be duly executed by its duly authorized officer 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.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Its: Chief Financial Officer
33
EXHIBIT A-2
AMENDED AND RESTATED TERM PROMISSORY NOTE
================================================================================
$20,600,000 Columbus, Ohio
March 1, 2003
================================================================================
For value received, the undersigned, MAX & ERMA'S RESTAURANTS, INC., a
Delaware corporation (the "Company"), hereby promises to pay to the order of THE
PROVIDENT BANK, an Ohio banking corporation, individually and as agent (the
"Bank") or its assigns, as further provided herein, the principal amount of
Twenty Million Six Hundred Thousand Dollars ($20,600,000) as provided in the
Loan Agreement (as defined in Section 1 below) on the dates specified in Section
2 hereof, with all unpaid principal payable on the Term Loan Maturity Date. Both
principal and interest are payable in federal funds or other immediately
available money of the United States of America at the offices of the Bank at ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇.
SECTION 1. LOAN AGREEMENT. This Amended and Restated Term Promissory
Note is the Term Note referred to in the Fourth Amended and Restated Revolving
Credit Agreement dated as of October 19, 2001, as amended by Amendment No. 1
dated as of April 30, 2002 and Amendment No. 2 dated as of the date hereof (the
"Loan Agreement") between the Company and the Bank, as the same may be amended,
modified or supplemented from time to time, is incorporated by reference herein.
All capitalized terms used herein shall have the same meanings as are assigned
to such terms in the Loan Agreement. This Amended and Restated Term Promissory
Note is entitled to the benefits of and is subject to the terms, conditions and
provisions of the Loan Agreement. The Loan Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events, and for repayments of principal prior to maturity
hereof upon the terms, conditions and provisions specified therein. This Amended
and Restated Term Promissory Note amends and restates in its entirety the Term
Promissory Note dated April 30, 2002 in the original principal amount of
$23,000,000.
SECTION 2. PRINCIPAL AND INTEREST PAYMENTS. The principal hereof shall
be payable in quarterly installments of $600,000 commencing May 1, 2003 and
continuing until all remaining unpaid principal and interest is paid in full, as
the same may be adjusted as provided in the Loan Agreement. Interest shall be
paid at the terms and at the rates specified in Section 1.4 of the Loan
Agreement.
SECTION 3. CONFESSION OF JUDGMENT. 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
34
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 4. WAIVER OF JURY TRIAL. THE BANK AND THE COMPANY HEREBY
VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN THE BANK AND THE COMPANY ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE BANK AND
THE COMPANY IN CONNECTION WITH THE LOAN DOCUMENTS, THIS NOTE, OR ANY OTHER
AGREEMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THEREWITH
OR THE TRANSACTIONS RELATED HERETO OR THERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT TO THE BANK TO ENTER INTO THE FINANCING TRANSACTION. IT SHALL NOT IN
ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY THE BANK'S ABILITY TO PURSUE ITS
REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY CONFESSION OF JUDGMENT OR COGNOVIT
PROVISION CONTAINED IN THE LOAN DOCUMENTS OR ANY OTHER DOCUMENT RELATED HERETO
OR THERETO.
The Borrower has caused this Amended and Restated Term Promissory Note
to be duly executed by its duly authorized officer 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.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Its: Chief Financial Officer
35
EXHIBIT A-3
DRAW PROMISSORY NOTE
================================================================================
$6,000,000 Columbus, Ohio
September 22, 2003
================================================================================
For value received, the undersigned, MAX & ERMA'S RESTAURANTS, INC., a
Delaware corporation (the "Company"), hereby promises to pay to the order of THE
PROVIDENT BANK, an Ohio banking corporation, individually and as agent (the
"Bank") or its assigns, as further provided herein, the principal amount of Six
Million Dollars ($6,000,000) as provided in the Loan Agreement (as defined in
Section 1 below) on the dates specified in Section 2 hereof, with all unpaid
principal payable on the December 31, 2007. Both principal and interest are
payable in federal funds or other immediately available money of the United
States of America at the offices of the Bank at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇.
SECTION 1. LOAN AGREEMENT. This Draw Promissory Note is the Draw Note
referred to in the Fifth Amended and Restated Revolving Credit Agreement dated
as of the date hereof (the "Loan Agreement") between the Company and the Bank,
as the same may be amended, modified or supplemented from time to time, is
incorporated by reference herein. All capitalized terms used herein shall have
the same meanings as are assigned to such terms in the Loan Agreement. This Draw
Promissory Note is entitled to the benefits of and is subject to the terms,
conditions and provisions of the Loan Agreement. The Loan Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events, and for repayments of principal prior to
maturity hereof upon the terms, conditions and provisions specified therein.
SECTION 2. PRINCIPAL AND INTEREST PAYMENTS. The principal hereof shall
be payable on the last day of each month in installments of $125,000 commencing
December 31, 2003 and continuing until all remaining unpaid principal and
interest is paid in full, as the same may be adjusted as provided in the Loan
Agreement. Interest shall be paid at the terms and at the rates specified in
Section 1.4 of the Loan Agreement.
SECTION 3. CONFESSION OF JUDGMENT. 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
36
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 4. WAIVER OF JURY TRIAL. THE BANK AND THE COMPANY HEREBY
VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN THE BANK AND THE COMPANY ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE BANK AND
THE COMPANY IN CONNECTION WITH THE LOAN DOCUMENTS, THIS NOTE, OR ANY OTHER
AGREEMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THEREWITH
OR THE TRANSACTIONS RELATED HERETO OR THERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT TO THE BANK TO ENTER INTO THE FINANCING TRANSACTION. IT SHALL NOT IN
ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY THE BANK'S ABILITY TO PURSUE ITS
REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY CONFESSION OF JUDGMENT OR COGNOVIT
PROVISION CONTAINED IN THE LOAN DOCUMENTS OR ANY OTHER DOCUMENT RELATED HERETO
OR THERETO.
The Borrower has caused this Draw Promissory Note to be duly executed
by its duly authorized officer 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.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Its: Chief Financial Officer
37
EXHIBIT B-1
AMENDMENT NO. 4 TO THIRD AMENDED AND RESTATED PERSONAL
PROPERTY SECURITY AGREEMENT
THIS AMENDMENT NO. 4 ("Amendment No. 4") dated as of September 22,
2003, between MAX & ERMA'S RESTAURANT, INC., a Delaware corporation (the
"Company") and THE PROVIDENT BANK (together with its successors, the "Bank").
WITNESSETH:
WHEREAS, the Company and the Bank, parties to that Third Amended and
Restated Security Agreement dated as of January 7, 2000 (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 hereby amended
as follows:
1.1. In Section 1, the following defined terms are deleted in
their entirety and restated as follows:
"Collateral" means and includes all Accounts,
Inventory, instruments, deposit accounts, letter of credit rights, investment
property, money, documents, Tangible Assets , payment intangibles, machinery,
commercial tort claims, furniture, fixtures, leasehold improvements, all
property now or at any time hereafter in the Bank's possession (including claims
and credit balances), and all other property in which the Company at any time
grants a Lien to the Bank pursuant to the Loan Documents or otherwise (including
the assignment of partnership interests of the Company in any partnerships that
the Company becomes a partner of from time to time), whether now existing or
hereafter acquired or arising, together with (a) all books, records, ledger
cards and other property pertaining to any of the foregoing, and any equipment
on which any such items are stored or maintained and (b) all products and
proceeds of any of the foregoing, and all insurance proceeds related to any of
the foregoing, including, without limitation, any claims against third parties
for loss or damage to or destruction of any or all of the foregoing and any
cash, negotiable instruments and other instruments of money, chattel paper,
security agreements or other documents. The term "Collateral" includes
computers, modems, printers, software, and related equipment, media and data
necessary to run software owned or used by the Company to keep track of its
Inventory but shall exclude software licensed exclusively for the use of the
Company.
"Loan" Documents" means this Agreement, the Loan
Agreement, the Intellectual Property Security Agreement, the Notes and all other
instruments or agreements required or contemplated hereby or thereby.
38
1.2. The definition for "Note" shall be deleted in its entirety and
substituted with the following:
"Notes" means (a) the $15,000,000 Revolving Credit
Note issued by the Company to the Bank dated as of ▇▇▇▇▇ ▇, ▇▇▇▇, (▇) the
$20,600,000 Term Promissory Note issued by the Company to the Bank dated as of
March 1, 2003, and (c) the $6,000,000 Draw Promissory Note issued by the Company
to the Bank dated as of the date hereof.
Section 2. Reaffirmation of Agreement. Except as herein expressly
modified, the parties hereto ratify and confirm all of the terms, conditions,
warranties and covenants of the Agreement.
IN WITNESS WHEREOF, the parties have hereunto set their hands 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.
THE PROVIDENT BANK MAX & ERMA'S RESTAURANTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------ -------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Its: Vice President It: Chief Financial Officer
39
EXHIBIT B-2
AMENDMENT NO. 2 TO AMENDED AND RESTATED INTELLECTUAL PROPERTY
SECURITY AGREEMENT
THIS AMENDMENT NO. 2 ("Amendment No. 2") dated as of September 22,
2003, between MAX & ERMA'S RESTAURANTS, INC., a Delaware corporation (the
"Company") and THE PROVIDENT BANK (together with its successors, the "Bank").
WITNESSETH:
WHEREAS, the Company and the Bank, parties to that Amended and Restated
Intellectual Property Security Agreement dated as of January 7, 2000 (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 hereby amended
as follows:
1.1 The second recital shall be deleted in its entirety and
restated as follows:
WHEREAS, as a condition to the Secured Party making any loans or
advances to Debtor pursuant to the Fifth Amended and Restated Revolving Credit
Agreement (as amended supplemented or restated from time to time, the "Loan
Agreement") between Debtor and the Secured Party, the Secured Party has required
the execution and delivery of this Amended and Restated Intellectual Property
Security Agreement.
Section 2. Reaffirmation of Agreement. Except as herein expressly
modified, the parties hereto ratify and confirm all of the terms, conditions,
warranties and covenants of the Agreement.
40
IN WITNESS WHEREOF, the parties have hereunto set their hands 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.
THE PROVIDENT BANK MAX & ERMA'S RESTAURANTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------ -------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Its: Vice President It: Chief Financial Officer
41
EXHIBIT C
MAX & ERMA'S RESTAURANTS, INC.
AT THE FOLLOWING LOCATIONS:
[TO BE AMENDED BY BORROWER]
ADDRESS COUNTY
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Franklin
▇▇▇ ▇. ▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Franklin
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Franklin
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Franklin
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Oakland
▇▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Franklin
▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Allegheny
▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Oakland
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Franklin
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Allegheny
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Allegheny
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Oakland
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Franklin
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Washtenaw
▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Summit
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Cuyahoga
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Lake
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, #▇▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇ Oakland
42
ADDRESS COUNTY
▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Kent
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ DuPage
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Franklin
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Mecklenburg
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇ Allegheny
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ DuPage
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Cuyahoga
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Lake
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Fayette
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Allegheny
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Gwinnett
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Franklin
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Franklin
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ DuPage
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Fayette
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Cuyahoga
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Allegheny
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇ Erie
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Trumbull
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇ (▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇), ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Norfolk
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Macomb
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Jefferson
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ADDRESS COUNTY
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