THIRD AMENDMENT TO FIRST AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Exhibit
10.2
THIRD
AMENDMENT TO
FIRST
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS
THIRD AMENDMENT TO FIRST AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (herein
called this "Amendment") dated effective as of August 8, 2007 by and
among M/I FINANCIAL CORP., an Ohio corporation ("Financial"), M/I HOMES,
INC. (formerly known as M/I Schottenstein Homes, Inc.), an Ohio corporation
("M/I Homes") (Financial and M/I Homes are sometimes hereinafter referred
to collectively as the "Borrowers"), and GUARANTY BANK, a federal savings
bank ("Bank"),
W
I T N E
S S E T H:
WHEREAS,
Borrowers and Bank have entered into that certain First Amended and Restated
Revolving Credit Agreement dated as of April 27, 2006 (as heretofore
amended by the First Amendment to First Amended and Restated Revolving Credit
Agreement made as of November 13, 2006, and that certain Second Amendment
to First Amended and Restated Revolving Credit Agreement, dated as of
April 27, 2007, the "Original Credit Agreement"), for the purposes
and consideration therein expressed, pursuant to which Bank became obligated
to
make loans to Borrowers as therein provided; and
WHEREAS,
Borrowers and Bank desire to amend the Original Credit Agreement as provided
herein;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein and in the Original Credit Agreement, in
consideration of the loans which may hereafter be made by Bank to Borrowers,
and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto do hereby agree as
follows:
ARTICLE
I.
Definitions
and References
Section
1.1. Terms
Defined in the Original Credit Agreement. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Credit Agreement shall have the same meanings whenever
used in this Agreement.
Section
1.2. Other
Defined Terms. Unless the context otherwise requires, the
following terms when used in this Amendment shall have the meanings assigned
to
them in this Section 1.2.
"Amendment"
shall mean this Third Amendment to Credit Agreement.
"Credit
Agreement" shall mean the Original Credit Agreement, as amended
hereby.
ARTICLE
II.
Amendments
to Original Credit Agreement
Section
2.1. Definitions. The
definition of "Subprime Sublimit" in Section 1.1 of the Original
Credit Agreement is hereby amended in its entirety to read as
follows:
"Subprime
Sublimit" shall mean the amount of $3,000,000.
Section
2.2. Notices. The
notice address for the Bank set forth in Section 8.2 of the Original Credit
Agreement is hereby amended in its entirety to read as follows:
The
Bank: Guaranty
Bank
0000
Xxxxxxx Xxxxxx
Xxxxxx,
Xxxxx 00000
Attention: Xxxx
Xxxxx
Facsimile: (000)
000-0000
Section
2.3. Exhibits. Exhibit C
(Form of Compliance Certificate) attached to this Amendment is hereby
substituted for Exhibit C to the Original Credit Agreement.
ARTICLE
III.
Conditions
of Effectiveness
Section
3.1. Effective
Date. This Amendment shall become effective as of the date first
above written when and only when Bank shall have received, at Bank's
office,
(a) a
duly
executed counterpart of this Amendment, and
(b) a
duly
executed certificate of the president, chief executive officer or chief
financial officer and of the secretary of each Borrower certifying
(i) that, in the case of M/I Homes, the action of the executive committee
of the board of directors, and, in the case of Financial, the action of sole
shareholder, authorizing the execution, delivery and performance of this
Amendment and identifying the officers authorized to sign this Amendment, copies
of which actions are attached to the respective certificates, are in full force
and effect, (ii) that the specimen signatures of the officers so
authorized, copies of which specimen signatures are attached to the respective
certificates, are true and correct, and (iii) that the articles of
incorporation and code of regulations of such Borrower have not been amended
since the date of the Original Credit Agreement.
ARTICLE
IV.
Representations
and Warranties
Section
4.1. Representations
and Warranties of Borrowers. In order to induce Bank to enter
into this Amendment, each Borrower represents and warrants to Bank
that:
(a) The
representations and warranties contained in Section 3 of the Original
Credit Agreement are true and correct at and as of the time of the effectiveness
hereof;
(b) Each
Borrower is duly authorized to execute and deliver this Amendment and is and
will continue to be duly authorized to borrow and to perform its obligations
under the Original Credit Agreement. Each Borrower has duly taken all
corporate action necessary to authorize the execution and delivery of this
Amendment and to authorize the performance of the obligations of such Borrower
hereunder and thereunder;
(c) The
execution and delivery by each Borrower of this Amendment, the performance
by
each Borrower of its obligations hereunder and thereunder and the consummation
of the transactions contemplated hereby do not and will not conflict with any
provision of law, statute, rule or regulation or of the articles of
incorporation and bylaws of such Borrower, or of any material agreement,
judgment, license, order or permit applicable to or binding upon such Borrower,
or result in the creation of any lien, charge or encumbrance upon any assets
or
properties of such Borrower. Except for those which have been duly
obtained, no consent, approval, authorization or order of any court or
governmental authority or third party is required in connection with the
execution and delivery by Borrowers of this Amendment or to consummate the
transactions contemplated hereby and thereby; and
(d) When
duly
executed and delivered, this Amendment will be a legal and binding instrument
and agreement of Borrowers, enforceable in accordance with its terms, except
as
limited by bankruptcy, insolvency and similar laws applying to creditors' rights
generally and by principles of equity applying to creditors' rights
generally.
ARTICLE
V.
Miscellaneous
Section
5.1. Ratification
of Agreement. The Original Credit Agreement as hereby amended is
hereby ratified and confirmed in all respects. Any reference to the
Credit Agreement in any Loan Document shall be deemed to refer to this Amendment
also. The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of Bank under the Original Credit Agreement or any other
Loan Document nor constitute a waiver of any provision of the Original Credit
Agreement or any other Loan Document.
Section
5.2. Survival
of Agreements. All representations, warranties, covenants and
agreements of Borrowers herein shall survive the execution and delivery of
this
Amendment and the performance hereof, and shall further survive until all of
the
Obligations are paid in full. All statements and agreements contained
in any certificate or instrument delivered by Borrowers hereunder or under
the
Original Credit Agreement to Bank shall be deemed to constitute representations
and warranties by, or agreements and covenants of, Borrowers under this
Agreement and under the Original Credit Agreement.
Section
5.3. Loan
Documents. This Amendment is a Loan Document, and all provisions
in the Original Credit Agreement pertaining to Loan Documents apply hereto
and
thereto.
Section
5.4. Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Texas and any applicable laws of the
United States of America in all respects, including construction, validity
and
performance.
Section
5.5. Counterparts;
Fax. This Amendment may be separately executed in counterparts
and by the different parties hereto in separate counterparts, each of which
when
so executed shall be deemed to constitute one and the same
Amendment. This Amendment may be duly executed by facsimile or other
electronic transmission.
THIS
AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT
BLANK
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IN
WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
GUARANTY
BANK M/I
FINANCIAL CORP.
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By:
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By:
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Xxxx
Xxxxx
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Xxxxxxx
X. Creek
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Vice
President
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Chief
Financial Officer
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M/I HOMES, INC.
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By:
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Xxxxxxx
X. Creek
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Chief
Financial Officer
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EXHIBIT
C
FORM
OF COMPLIANCE CERTIFICATE
[Letterhead
of M/I-Financial Corp.]
[Date]
Mr.
Xxxx
Xxxxx
Guaranty
Bank
0000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx,
XX 00000
Dear
Xxxx:
This
letter is to comply with Section 5.2(a), Certificates, Other
Information, related to the First Amended and Restated Revolving Credit
Agreement dated April 27, 2006 (as amended, the "Revolving Credit
Agreement") and is for the period ending [Insert Appropriate Period] except
the calculations for EBIT and Interest Expense have been calculated for the
rolling 12 month period indicated on the attached
statement. Capitalized terms used but not defined have the meanings
given to such terms in the Revolving Credit Agreement.
The
undersigned certifies that, after due examination by the undersigned and to
the
best of my knowledge, M/I Financial Corp. during the period stated above has
observed or performed in all material respects all of its covenants and the
agreements, and satisfied every condition, contained in the Revolving Credit
Agreement and Note to be observed, performed or satisfied by it, and that the
undersigned has no knowledge of any Default of Event of Default except [List
any
defaults or events of defaults; if none, end sentence before
"except."]
Additionally,
I have enclosed a statement showing in detail the calculation of certain
sections of the Revolving Credit Agreement as required in the Revolving Credit
Agreement. All figures in this calculation are as of the end of the
accounting period stated in the first paragraph of this letter. The
undersigned certifies that the enclosed calculation is accurate in all material
respects.
Certified
by:
Enclosure: Statement
of Calculation of Certain Covenants
C-1
M/I
FINANCIAL CORP.
STATEMENT
OF CALCULATION OF CERTAIN COVENANTS
[Date]
Capitalized
terms used but not defined in this Compliance Certificate shall have the
meanings specified in the Revolving Credit Agreement.
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Subsection
No.
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Covenant
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1.
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5.7,
page 22
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M/I
Financial must maintain at all times its Tangible Net Worth equal
to at
least $3,500,000.
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M/I
Financial's Tangible Net Worth = $_______________
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2.
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5.8,
page 22
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M/I
Financial must maintain at all times a ratio of Liabilities to Tangible
Net Worth not in excess of 10.0 to 1.0.
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M/I
Financial's Liabilities = $______________
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M/I
Financial's Tangible Net Worth (from line 1) =
$__________
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Ratio
of Liabilities to Tangible Net Worth = ___:___.
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3.
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5.9,
page 22
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M/I
Financial must maintain a ratio of EBIT to Interest Expense, determined
as
of the end of each monthly accounting period of each fiscal year
and as of
the end of each fiscal year, on a rolling 12 month basis (with the
period
of determination being the 12 month period ending on the date as
to which
such determination is made), of not less than 1.50 to
1.0.
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EBIT
for the 12 month period beginning ______________ and ending ____________
=
$______________.
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Interest
Expense for the 12 month period beginning _____________ and ending
_______________ = $__________
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Ratio
of EBIT to Interest Expense = ___:___.
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4.
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6.3,
page 24
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M/I
Financial may not incur any Contingent Obligations, except as specifically
stated:
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In
making first mortgage loans permitted under the Revolving Credit
Agreement, M/I Financial may, lieu of requiring down payments from
mortgagors, purchase and pledge to investors purchasing such first
mortgage loans, certificates of deposit in an aggregate amount not
to
exceed $2,500,000. Aggregate amount of certificates of deposit
= $________________.
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Other
Contingent Obligations = $______________.
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5.
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6.5,
page 24
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M/I
Financial may not make any investments except as specifically
stated:
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(i)
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Eligible
Mortgage Loans:
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(a)
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First
mortgage loans in the ordinary course of M/I Financial's business
to
natural persons for the purchase of residential real property =
$_______.
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(b)
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First
mortgage loans made by M/I Financial for the purpose of homes from
any
Person other than M/I Homes = $________________.
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The
amount of mortgage loans in (b) cannot exceed $5,000,000 in aggregate
at
any one time outstanding.
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(c)
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First
mortgage loans in the ordinary course of M/I Financial's business
to
natural persons to refinance an existing first mortgage loan =
$___________.
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The
amount of first mortgage loans in (c) cannot exceed $5,000,000 in
aggregate at any one time outstanding.
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(d)
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CD
Enhanced loans in the ordinary course of M/I Financial's business
=
$______________.
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The
amount of CD Enhanced loans in (d) cannot exceed $5,000,000 in aggregate
at any one time outstanding.
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(e)
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Second
mortgage loans in the ordinary course of M/I Financial's business
to
natural persons for the purchase of residential real property =
$__________.
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The
amount of mortgage loans in (e) cannot exceed $10,000,000 in aggregate
at
any one time outstanding.
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Are
all of the mortgage loans in (e) made in connection with a specific
financing program to natural persons who have a first mortgage from
M/I
Financial with respect to the same real property?
_________
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(f)
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Mortgage
loans having a Risk Rating of less than A =
$___________.
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The
amount of mortgage loans having a Risk Rating of less than A cannot
exceed
$3,000,000 in the aggregate at any one time
outstanding.
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(g)
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Mortgage
loans subject to a deferred payment repurchase obligation described
in
clause (G) of the definition of Mortgage Loan Repurchase Obligations
= $______________.
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The
amount of mortgage loans in (g) cannot exceed $5,000,000 in aggregate
at
any one time outstanding.
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(ii)
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Cash
Equivalents = $_____________.
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(iii)
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Investments
in ordinary course of M/I Financial's business in standard instruments
hedging against interest rate risk incurred in the origination and
sale of
mortgage loans = $___________
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Is
each hedging instrument(s) matched to specific groups of mortgages?
__________
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Are
any hedging transactions:
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(A)
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investments
in future contracts? ____
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(B)
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investments
in options contracts? _____
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(C)
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investments
in other derivative investment vehicles acquired as independent
investments? ______
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(See
attached schedule.)
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(iv)
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Loan
and advances to M/I Homes = $________
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(Subsection
6.5 imposes no limit on loans and advances to M/I
Homes.)
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Does
M/I Financial have any investments other than specifically listed
above?
____________
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