SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10.1
SECOND
AMENDMENT TO
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT (“Amendment”) dated as of March 27, 2008 is among
M/I HOMES, INC., an Ohio corporation (“Borrower”), the Lenders party hereto and
JPMORGAN CHASE BANK, N.A., as Agent (the “Agent”).
RECITALS
WHEREAS, Borrower, the Lenders and
Agent are parties to that certain Second Amended and Restated Credit Agreement
dated as of October 6, 2006 (as amended by a First Amendment to Second Amended
and Restated Credit Agreement dated as of August 28, 2007 and as further
amended, renewed and restated from time to time, the “Credit
Agreement”).
WHEREAS, Borrower and the Lenders
desire to amend the Credit Agreement to reduce the Aggregate Commitment (as such
term and other capitalized terms used, but not otherwise defined in this
Amendment, are defined in the Credit Agreement), to revise financial covenants
and to make certain other changes in the Credit Agreement.
NOW, THEREFORE, for good and valuable
consideration, the parties hereto hereby agree as follows:
1. Amendments.
(a) Amendments to
Definitions. Subsection 1.1 of the Credit Agreement is amended
to add, in correct alphabetical order, new definitions for “ACFO Ratio,”
“Adjusted Cash Flow from Operations,” “Deferred Tax Valuation Allowance,” “Loan
Party,” “Senior Notes,” “Second Amendment” and “Unrestricted Cash” and the
definitions of “Borrowing Base Indebtedness” and “Secured Indebtedness” are
amended, each to read as follows:
“ACFO Ratio” shall
mean, for the period ending the last day of any fiscal quarter, the ratio of (i)
Adjusted Cash Flow from Operations for the four fiscal quarters then ended to
(ii) Consolidated Interest Incurred by the Borrower and its
Subsidiaries for such four fiscal quarters.
“Adjusted Cash Flow from
Operations” shall mean, for any period of four consecutive fiscal
quarters of the Borrower, the sum of (a) cash provided by (used in) operating
activities, as calculated using the “net cash provided by (used in) operating
activities” line item of the Borrower and its Subsidiaries’ Consolidated
Statement of Cash Flow for the four consecutive quarters then ended as
determined in accordance with GAAP, plus (b) Consolidated Interest Incurred of
the Borrower and its Subsidiaries on a consolidated basis for such four
consecutive fiscal quarters.
“Borrowing Base
Indebtedness” shall mean at any date (i) the sum of (a) Consolidated
Indebtedness, (b) an amount equal to ten percent (10%) of the aggregate
commitment under the M/I Financial Corp. Loan Agreement, (c) an amount equal to
ten percent (10%) of the face amount of surety bonds and undrawn Performance
Letters of Credit issued by, for the account of or guaranteed by the Borrower or
any of its Subsidiaries and (d) to the extent not included in Consolidated
Indebtedness, Borrower’s and its Subsidiaries’ pro rata share of Indebtedness of
any Joint Venture in respect of which Borrower or any of its Subsidiaries has
made an Investment in Joint Venture, all as of such date less (ii) the sum of
(a) Secured Indebtedness, (b) Subordinated Indebtedness, (c) Indebtedness under
the M/I Financial Corp. Loan Agreement, and (d) to the extent included in
Consolidated Indebtedness, the Borrower’s and its Subsidiaries’ pro rata share
of Indebtedness of any Joint Venture in respect of which Borrower or any of its
Subsidiaries has made an Investment in Joint Venture, all as of such
date.
“Deferred Tax Valuation
Allowance” shall mean any valuation allowance applied to deferred income
tax assets as determined in accordance with GAAP and included in the financial
statements of the Borrower.
“Loan Party” shall
mean the Borrower or any Guarantor.
“Second Amendment”
shall mean the Second Amendment to this Agreement dated as of March 27, 2008
among Borrower, Agent and the Lenders.
“Secured Indebtedness”
shall mean, as of any date, all Indebtedness (including without limitation
purchase money Indebtedness, non-recourse Indebtedness and Capital Lease
obligations) of Borrower or any of its Subsidiaries (excluding Indebtedness
owing to Borrower or any of its Subsidiaries) that is non-recourse or fully
secured by a Lien on assets of Borrower or any of its Subsidiaries.
“Senior Notes” shall
mean the 6-7/8% Senior Notes due 2012 issued under and pursuant to the Indenture
dated as of March 24, 2005 among Borrower, the guarantors named therein and U.S.
Bank National Association, as Trustee.
“Unrestricted Cash”
shall mean cash and Cash Equivalents of the Loan Parties that are maintained
with Agent free and clear of all Liens (other than Liens securing the
Obligations) and not subject to any restrictions on the use thereof to pay
Indebtedness and other obligations of the Borrower and its
Subsidiaries.
(b) Reduction of Aggregate
Commitment. Pursuant to subsection 2.6(a) of the Credit
Agreement, the Aggregate Commitment is hereby reduced from $500,000,000 to
$250,000,000 and allocated to each Lender’s Commitment ratably in proportion to
its Ratable Share. The amounts of the reduced Commitments of the
Lenders are set forth in Schedule 1
hereto.
(c) Pricing. Subsection
2.5(d) of the Credit Agreement is amended to read “Intentionally Omitted,” and
subsection 2.5(b) of the Credit Agreement is amended and restated to read as
follows:
(b) The
Applicable Margins and the Applicable Commitment Rate shall be determined by
reference to the Senior Debt Rating in accordance with the following table and
provisions of this subsection 2.5(b):
|
Level
I
|
Level
II
|
Level
III
|
Level
IV
|
Level
V
|
|
|
Senior
Debt Rating
|
BB+/Ba1
or higher
|
BB/Ba2
|
BB-/Ba3
|
B+/B1
|
B/B2
or lower or no Senior Debt Rating
|
|
Applicable
Eurodollar Margin
and
Applicable Facility L/C Rate
|
2.00%
|
2.25%
|
2.50%
|
2.75%
|
3.00%
|
|
Applicable
ABR Margin
|
0.375%
|
0.375%
|
0.375%
|
0.375%
|
0.375%
|
|
Applicable
Commitment Rate
|
0.375%
|
0.375%
|
0.375%
|
0.375%
|
0.375%
|
(d) Payment of
Obligations. Subsection 6.6 of the Credit Agreement is amended
to add at the end thereof:
Except
for payments made when due on the Senior Notes in accordance with their terms in
effect on the date of the Second Amendment to this Agreement, Borrower shall not
directly or indirectly prepay, redeem or otherwise acquire any Senior Note or
make any payments, transfers on account of or, unless contemporaneously
therewith effective provision is made similarly to secure the Obligations on an
equal and ratable basis, provide a Lien to secure the Senior Notes.
(e) Consolidated Tangible Net
Worth. Subsection 6.11 of the Credit Agreement is amended and
restated to read as follows:
6.11 Maintenance of Consolidated
Tangible Net Worth. Maintain at all times during the
Commitment Period a Consolidated Tangible Net Worth (“Minimum Tangible Net
Worth”) in amounts equal to or exceeding (i) $400,000,000 plus (ii) fifty
percent (50%) of the Consolidated Earnings for each quarter after December 31,
2007 (excluding any quarter in which the Consolidated Earnings are less than
zero) plus (iii) fifty percent (50%) of the net proceeds or other consideration
received by Borrower for any capital stock issued on or after December 31, 2007
minus (iv) the cumulative net amount of any Deferred Tax Valuation Allowance as
of the date of determination; provided, however, that in no event shall the
Minimum Tangible Net Worth be less than $335,000,000.
(f) Leverage
Ratio. Subsection 6.12 of the Credit Agreement is amended and
restated to read as follows:
6.12 Maintenance of Leverage
Ratio. Maintain during the Commitment Period a Leverage Ratio
not in excess of (a) 1.00 to 1.00 at any time at which the Interest Coverage
Ratio is less than 1.00 to 1.00, (b) 1.20 to 1.00 at any time at which the
Interest Coverage Ratio is greater than or equal to 1.00 to 1.00 and less than
1.25 to 1.00, and (c) 1.40 to 1.00 at all other times.
(g) Interest Coverage
Ratio. Subsection 6.13 of the Credit Agreement is amended and
restated to read as follows:
6.13 Maintenance of Interest
Coverage Ratio. As of the end of each fiscal quarter, maintain
during the Commitment Period an Interest Coverage Ratio of not less than 1.50 to
1.00. Notwithstanding the foregoing, the maintenance of an Interest
Coverage Ratio of less than 1.50 to 1.00 as of the end of any fiscal quarter
shall not constitute a violation of this subsection 6.13(a) as long as Borrower,
as of the end of such fiscal quarter, is in compliance with subsections 6.12 and
6.17.
(h) Minimum
Liquidity. A new subsection 6.17 is added immediately after
subsection 6.16 of the Credit Agreement to read as follows:
6.17 Minimum
Liquidity. If, for the period ending the last day of any
fiscal quarter during the Commitment Period (a) the Interest Coverage Ratio is
less than 1.50 to 1.00 and (b) the ACFO Ratio is less than 1.50 to 1.00, the
Borrower shall thereafter maintain Unrestricted Cash in an amount not less than
$25,000,000 until the last day of the next succeeding fiscal quarter when either
the Interest Coverage Ratio is not less than 1.50 to 1.00 or the ACFO Ratio is
not less than 1.50 to 1.00.
(i) Secured
Indebtedness. Subsection 7.1 of the Credit Agreement is
amended to replace the amount of “$50,000,000” with “$25,000,000.”
(j) Limitation on
Investments. Subsection 7.6(b) of the Credit Agreement is
amended to replace the words “two and one-half percent (2.5%)” with “five
percent (5%).”
(k) Events of
Default. Subsection (4) in Section 9 of the Credit Agreement
is amended to insert “6.17,” immediately after “6.16;” “or” is added after
subsection (10); and a new subsection (11) is added immediately after subsection
(10) to read as follows:
(11) Borrowing
Base Indebtedness shall exceed the Pro Forma Borrowing Base for more than five
(5) consecutive calendar days, where "Pro Forma Borrowing Base" means the
Borrowing Base reflected in any Borrowing Base Certificate delivered pursuant to
subsection 6.3 recalculated by replacing twenty-five percent (25%) in clause
(vi) with ten percent (10%) and replacing forty-five percent (45%) in the last
paragraph with forty percent (40%);
2. Form of
Certificate. Exhibit F to the
Credit Agreement is hereby replaced by Exhibit F
hereto.
3. Conditions
Precedent. This Amendment shall be effective as of the date
("Amendment Effective Date") upon which the following conditions are
satisfied:
(a) The
Agent shall have received from the Borrower and the Required Lenders a
counterpart of this Amendment signed on behalf of each such party.
(b) The
Agent shall have received from the Guarantors the Consent and Agreement
substantially in the form attached hereto as Appendix
A.
(c) The
Agent shall have received such documents and certificates as the Agent or its
counsel may reasonably request relating to the organization or formation,
existence and good standing of the Borrower, the authorization of this Amendment
and any other legal matters relating to the Borrower, the Agreement or this
Amendment, all in form and substance satisfactory to the Agent and its
counsel.
(d) The
Agent shall have received all fees and other amounts due and payable on or prior
to the Amendment Effective Date, including reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.
The
Agent shall notify the Borrower and the Lenders of the Amendment Effective Date,
and such notice shall be conclusive and binding.
4. Representations and
Warranties. The Borrower hereby represents and warrants that
as of the date hereof:
(a) The
representations and warranties of the Borrower in the Credit Agreement are true
and correct in all material respects.
(b) There
exists no Default or Event of Default.
5. Ratification. This
Amendment supersedes the Letter Amendment. The Credit Agreement, as amended
hereby, is hereby ratified and remains in full force and effect.
6. Counterparts. This
Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one agreement and any of the parties hereto may
execute this Amendment by signing any such counterpart.
IN
WITNESS WHEREOF, the Borrower and the Lenders have caused this Amendment to be
duly executed as of the date first above written.
|
BORROWER:
M/I
HOMES, INC.
By:
Xxxxxxx
X. Creek
Executive
Vice President, Chief Financial Officer and Assistant
Secretary
|
|
LENDERS:
JPMORGAN CHASE BANK,
N.A., As Lender and Agent
By:
Name:
_________________________________
Title: __________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
WACHOVIA
BANK, NATIONAL ASSOCIATION
By:
Name:
_________________________________
Title: _________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
THE
HUNTINGTON NATIONAL BANK
By:
Name:
_________________________________
Title: __________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
KEYBANK
NATIONAL ASSOCIATION
By:
Name:
_________________________________
Title: __________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
CHARTER
ONE BANK, N.A.
By:
Name:
_________________________________
Title: __________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
SUNTRUST
BANK
By:
Name:
_________________________________
Title: __________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
REGIONS
BANK
By:
Name:
_________________________________
Title: __________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
BANK
OF MONTREAL
By:
Name:
_________________________________
Title: __________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
GUARANTY
BANK
By:
Name:
_________________________________
Title: __________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
NATIONAL
CITY BANK
By:
Name:
_________________________________
Title: __________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
U.S. BANK NATIONAL
ASSOCIATION
By:
Name:
_________________________________
Title: __________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
LASALLE
BANK NATIONAL ASSOCIATION
By:
Name:
_________________________________
Title: __________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
PNC
BANK, NATIONAL ASSOCIATION
By:
Name:
_________________________________
Title: __________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
CITY
NATIONAL BANK, a national banking association
By:
Name:
_________________________________
Title: _________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
FIFTH
THIRD BANK, an Ohio banking corporation
By:
Name:
_________________________________
Title: __________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
FRANKLIN
BANK, S.S.B., a Texas chartered bank
By:
Name:
_________________________________
Title: __________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
COMERICA
BANK
By:
Name:
_________________________________
Title: __________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
COMPASS
BANK
By:
Name:
_________________________________
Title: __________________________________
|
SIGNATURE
PAGE TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT WITH M/I HOMES, INC.
|
BANK
UNITED, FSB
By:
Name:
_________________________________
Title: __________________________________
|
SCHEDULE
1
COMMITMENTS
|
Lender
|
Commitment
|
Ratable Share
|
||
|
JPMorgan
Chase Bank, N.A.
|
$22,115,384.62
|
8.846153846%
|
||
|
Wachovia
Bank, National Association
|
$22,115,384.62
|
8.846153846
|
||
|
The
Huntington National Bank
|
$21,153,846.15
|
8.461538461
|
||
|
KeyBank
National Association
|
$17,307,692.31
|
6.923076923
|
||
|
Charter
One Bank, N.A.
|
$15,384,615.38
|
6.153846153
|
||
|
SunTrust
Bank
|
$15,384,615.38
|
6.153846153
|
||
|
Regions
Bank
|
$13,461,538.46
|
5.000000000
|
||
|
Bank
of Montreal
|
$13,461,538.46
|
5.000000000
|
||
|
Guaranty
Bank
|
$13,461,538.46
|
5.384615384
|
||
|
National
City Bank
|
$13,461,538.46
|
5.384615384
|
||
|
US
Bank National Association
|
$13,461,538.46
|
5.384615384
|
||
|
LaSalle
Bank National Association
|
$11,538,461.54
|
4.615384615
|
||
|
PNC
Bank, N.A.
|
$11,538,461.54
|
4.615384615
|
||
|
City
National Bank
|
$9,615,384.62
|
3.846153846
|
||
|
Fifth
Third Bank
|
$9,615,384.62
|
3.846153846
|
||
|
Franklin
Bank, S.S.B.
|
$9,615,384.62
|
3.846153846
|
||
|
Comerica
Bank
|
$7,692,307.69
|
3.076923076
|
||
|
Compass
Bank
|
$5,769,230.77
|
2.307692307
|
||
|
Bank
United, F.S.B.
|
$3,846,153.84
|
1.538461538
|
||
|
Total
|
$
250,000,000.00
|
100%
|
EXHIBIT
F
[LETTERHEAD
OF M/I HOMES, INC.]
[DATE]
To:
Agent and each Lender
Ladies
and Gentlemen:
This
letter is being sent to you to comply with subsection 6.2 of the Second Amended
and Restated Credit Agreement effective as of October 6, 2006 (as amended, the
"Credit Agreement") and is being delivered to you for the period of [insert
yearly or quarterly period as appropriate] for which period the undersigned has
heretofore delivered, or is herewith delivering, the financial statements
provided for in subsection 6.1 of the Credit Agreement (the "Financial
Statements"). [The undersigned hereby certifies that such Financial Statements
are true and accurate in all material respects, subject to normal year-end audit
adjustments (Note: only required with delivery of unaudited Financial
Statements)]. Capitalized terms used but not defined herein have the meanings
given to such terms in the Credit Agreement.
The
undersigned certifies that, after due examination by the undersigned and to the
best of the knowledge of the undersigned, M/I Homes, Inc. and each of its
Subsidiaries during the period stated above has observed or performed in all
material respects all of its covenants and other agreements, and satisfied every
condition, contained in the Credit Agreement, the Notes and the Guaranty
Agreement to be observed, performed or satisfied by it, and that the undersigned
has no knowledge of any Default or Event of Default except [list any Defaults or
Events of Default; if none, end sentence before "except"].
Additionally,
I have enclosed a statement showing in detail the calculation of ratios and
other covenants, in accordance with corresponding subsections of the Credit
Agreement, as required by the Credit Agreement.
Yours
very truly,
By:
Printed
Name:
Title:
Enclosure
CONFIDENTIAL
STATEMENT
OF CALCULATION OF CERTAIN COVENANTS
[Date]
|
Subsection No.
|
Covenant
|
|
1. 6.11
|
Maintain
Consolidated Tangible Net Worth of: (i) $400,000,000 plus (ii) fifty
percent (50%) of the Consolidated Earnings for each quarter after December
31, 2007 (excluding any quarter in which Consolidated Earnings are less
than zero (0)) plus (iii) fifty percent (50%) of the net proceeds or other
consideration received by Borrower for any capital stock issued or sold
after December 31, 2007 minus (iv) the cumulative net amount of any
Deferred Tax Valuation Allowance as of the date of determination;
provided, however, that in no event shall the Minimum Tangible Net Worth
be less than $300,000,000.
(i)
above:
$400,000,000
Plus
(ii)
above:
$
Plus
(iii)
above:
$
Minus
(iv)
above:
$
Minimum
Consolidated Tangible Net
Worth:
$
[greater
of sum of above or [$335,000,000]]
Consolidated
Tangible Net Worth
=
$
|
|
2. 6.12
|
Maintain
a Leverage Ratio not in excess of _____1 to
1.00
|
|
Consolidated
Indebtedness:
$
|
|
|
Consolidated
Tangible Net
Worth:
$
|
|
|
Leverage
Ratio = _____________ to 1.00
|
|
|
3. 6.13
|
Maintain
an Interest Coverage Ratio of not less than 1.50 to 1.00
The
maintenance of an Interest Coverage Ratio of less than 1.50 to 1.00 as of
the end of any fiscal quarter shall not constitute a violation of
subsection 6.13(a) as long as Borrower, as of the end of such fiscal
quarter, is in compliance with subsections 6.12 and
6.17.
|
|
EBITDA
(for four
quarters)
$
|
|
|
Consolidated
Interest Incurred (for four
quarters):
$
|
|
|
Interest
Coverage Ratio = _____________ to 1.00
|
|
|
5. 6.17
|
If,
for the period ending the last day of the most recently ended fiscal
quarter (a) the Interest Coverage Ratio is less than 1.50 to 1.00 and (b)
the ratio of (i) Adjusted Cash Flow from Operations (“ACFO Ratio”) for the
four fiscal quarters then ended to (ii) Consolidated Interest Incurred by
the Borrower
and its Subsidiaries for such four fiscal quarters is less than 1.50 to
1.00, until the end of the next fiscal quarter when the Interest Coverage
Ratio is not less than 1.50 to 1.00 or the ACFO Ratio is not less than
1.50 to 1.00, the Borrower shall maintain Unrestricted Cash in an amount
not less than $25,000,000.
|
|
(i)
Adjusted Cash Flow From
Operations: $
(ii)
Consolidated Interest
Incurred:
$
(iii)
Ratio of (i) to
(ii): _______
to _____
|
|
|
Unrestricted
Cash
=
$_____________
|
|
|
6. 7.1
|
Secured
Indebtedness not to exceed $25,000,000
|
|
Secured
Indebtedness
=
$
|
|
7. 7.5
|
Adjusted
Land Value not to exceed 125% of the sum of (a) Consolidated Tangible Net
Worth plus (b) 50% of Subordinated Indebtedness
Adjusted Land Value
(i)
book value of all
Land:
$
less
(ii) the sum of
(a)
book value of Land and Lots under Contract:$
and
(b) the lesser of (1) the product of (x) number
of Housing
Units contracted for during the last
six
months and (y) average book value of all
Finished
Lots and Lots under Contract
or: $
(2)
25% of Consolidated Tangible Net
Worth: $
Adjusted Land
Value:
$
(a)
Consolidated Tangible Net
Worth:
$
Plus
(b) 50% of Subordinated
Indebtedness:
$
Total
[(a) + (b)]
=
$
X
1.25
=
$
|
|
8. 7.6(b)
|
Limit
on extension of credit in connection
with $
the
sale of land of 5% of Consolidated
Tangible
Net Worth
5%
of Consolidated Tangible Net
Worth:
$
Aggregate
amount of extensions of credit
in
$
connection
with the sale of land:
Maximum
maturity of any such extensions of
credit
not to exceed five
years: ________________
|
|
9. 7.6(e)
|
Limit
on Investments in Joint Ventures of fifteen percent (15%) of Consolidated
Tangible Net Worth, provided that Borrower has no less than a 20% interest
in each such joint venture and that management and control decisions for
each such joint venture require Borrower's consent and
approval.
15%
of Consolidated Tangible Net
Worth: $
Investments
in Joint
Ventures: $
Lowest
percentage interest of Borrower in a joint
venture: ___________%
|
|
10. 7.13
|
The
number of Speculative Housing Units, as at the end of any fiscal quarter,
not to exceed the greater of (a) the number of Housing Unit Closings
occurring during the period of twelve (12) months ending on the last day
of such fiscal quarter, multiplied by thirty percent (30%) or (b) the
number of Housing Unit Closings occurring during the period of six (6)
months ending on the last day of such fiscal quarter, multiplied by sixty
percent (60%).
Speculative
Housing Units:
(a)
Housing Unit Closings in last 12 months:________ x 30% =
(b)
Housing Unit Closings in last 6 months:________ x 60% =
(c) Speculative
Housing
Units:
|
Appendix
A
CONSENT
AND AGREEMENT OF GUARANTORS
THIS
CONSENT AND AGREEMENT OF GUARANTORS ("Consent") is executed and delivered as of
March 27, 2008, by the undersigned (the "Guarantors"), in favor of the "Lenders"
under that certain Second Amended and Restated Credit Agreement dated October 6,
2006, among M/I Homes, Inc., the Lenders from time to time parties thereto and
JPMorgan Chase Bank, N.A., in its capacity as Agent. Such Credit Agreement, as
it has been and may be amended, modified or supplemented from time to time, is
hereinafter referred to as the "Credit Agreement." Unless otherwise defined
herein, capitalized terms used herein shall have the meanings ascribed to them
in the Credit Agreement.
WITNESSETH:
WHEREAS,
the Guarantors have executed and delivered a Guaranty dated October 6, 2006 in
favor of the Lenders under the Credit Agreement or a Supplemental Guaranty
thereto (collectively, the "Guaranty"); and
WHEREAS,
the Borrower, the Agent and certain Lenders have entered into that certain
Second Amendment to Second Amended and Restated Credit Agreement of even date
herewith amending the Credit Agreement (the "Amendment"); and
WHEREAS,
it is a condition to the Amendment that the Guarantors shall have executed this
Consent;
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Guarantors hereby consent to the Amendment
and agree that the Guaranty continues in full force and effect.
IN
WITNESS WHEREOF, this Consent has been duly executed by the Guarantors as of the
day and year first set forth above.
M/I
FINANCIAL CORP., an Ohio corporation
By:
Name: Xxxxxxx
X. Creek
Title: Chief
Financial Officer and Treasurer
NORTHEAST
OFFICE VENTURE, LIMITED LIABILITY COMPANY, a Delaware limited liability
company
By: M/I
Homes, Inc., its sole member
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Executive Vice President, Chief Financial Officer and Assistant
Secretary
|
M/I
HOMES SERVICE, LLC, an Ohio limited liability company
By
M/I Homes, Inc., its sole member
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Executive Vice President and Chief Financial
Officer
|
MHO,
LLC, a Florida limited liability company
By:
Name: J.
Xxxxxx Xxxxx
Title: President
and Assistant Secretary
MHO
HOLDINGS, LLC, a Florida limited liability company
By:
Name: J.
Xxxxxx Xxxxx
Title: Senior
Vice President, General Counsel and Secretary
M/I
PROPERTIES LLC, an Ohio limited liability company
By: M/I
Homes, Inc., its sole member
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Executive Vice President, Chief Financial Officer and Assistant
Secretary
|
M/I
HOMES OF FLORIDA, LLC, a Florida limited liability company
By: M/I
Homes, Inc., its sole member
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Executive Vice President, Chief Financial Officer and Assistant
Secretary
|
M/I
HOMES OF ORLANDO, LLC, a Florida limited liability company
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Senior Vice President, Chief Financial Officer and Assistant
Secretary
|
M/I
HOMES OF TAMPA, LLC, a Florida limited liability company
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Senior Vice President, Chief Financial Officer and Assistant
Secretary
|
M/I
HOMES OF WEST PALM BEACH, LLC, a Florida limited liability company
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Senior Vice President, Chief Financial Officer and Assistant
Secretary
|
K-TAMPA,
LLC, a Florida limited liability company, by M/I Homes of Tampa, LLC, its
manager
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Senior Vice President, Chief Financial Officer and Assistant
Secretary
|
M/I
HOMES OF DC, LLC, a Delaware limited liability company
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Senior Vice President, Chief Financial Officer and Assistant
Secretary
|
M/I
HOMES OF CHARLOTTE, LLC, a Delaware limited liability company
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Senior Vice President, Chief Financial Officer and Assistant
Secretary
|
M/I
HOMES OF RALEIGH, LLC, a Delaware limited liability company
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Senior Vice President, Chief Financial Officer and Assistant
Secretary
|
THE
FIELDS AT PERRY HALL, L.L.C., a Maryland limited liability company
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President and Chief FinancialOfficer
XXXXXX
FARM, L.L.C., a Maryland limited liability company
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Senior Vice President and Chief Financial
Officer
|
M/I
HOMES OF CENTRAL OHIO, LLC, an Ohio limited liability company
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Senior Vice President, Chief Financial Officer and Assistant
Secretary
|
M/I
HOMES OF CINCINNATI, LLC, an Ohio limited liability company
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Senior Vice President, Chief Financial Officer and Assistant
Secretary
|
M/I
HOMES OF INDIANA, L.P., an Indiana limited partnership
By
M/I Homes First Indiana LLC, its sole general partner
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Senior Vice President, Chief Financial Officer and Assistant
Secretary
|
M/I
HOMES FIRST INDIANA LLC, an Indiana limited liability company
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Senior Vice President, Chief Financial Officer and Assistant
Secretary
|
M/I
HOMES SECOND INDIANA LLC, an Indiana limited liability company
By: M/I
Homes, Inc., its sole member
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Executive Vice President, Chief Financial Officer and Assistant
Secretary
|
TRANSOHIO
RESIDENTIAL TITLE AGENCY, LTD., an Ohio limited liability company
By: M/I
Homes, Inc., its sole member
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Executive Vice President, Chief Financial Officer and Assistant
Secretary
|
M/I-MAJESTIC
OAKS GP, LLC, a Florida limited liability company
By: M/I
Homes of Tampa, LLC, its sole member
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Senior Vice President, Chief Financial Officer and Assistant
Secretary
|
M/I
HOMES OF CHICAGO, LLC, a Delaware limited liability company
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Senior Vice President, Chief Financial Officer and Assistant
Secretary
|
M/I
TITLE AGENCY LTD., an Ohio limited liability company
By:
Name: Xxxxxxx
X. Creek
|
|
Title:
|
Chief Financial Officer and
Treasurer
|
CERTIFICATE
OF AUTHORIZED OFFICER
The
undersigned hereby certifies to Agent and each Lender that (1) each Loan Party
has previously delivered to Agent a true, correct and complete copy
of such Loan Party’s organizational documents (collectively, the “Delivered Organization
Documents”), (2) since such delivery, there has been no change in the
Delivered Organization Documents except for those changes attached hereto, and,
except as disclosed on an attachment, no such document has been repealed,
revoked, rescinded or amended in any respect, and each remains in full force and
effect, (3) each Loan Party remains in good standing in the jurisdiction of its
organization, (4) except for those resolutions attached hereto (which were duly
adopted by the parties named therein), the resolutions (the “Delivered
Resolutions”) previously delivered to Agent by the Loan Parties authorize
the execution, delivery and performance of the foregoing Amendment by the Loan
Parties, (5) the Delivered Resolutions authorize Person(s) holding the office(s)
indicated above or, if none, the office(s) held by the Person(s) executing the
foregoing (the “Authorized Executing
Office”) to execute the foregoing Amendment on behalf of the applicable
Loan Parties, (6) the Person executing the foregoing Amendment on behalf of each
Loan Party has been duly elected and now holds the Authorized Executing Office
set forth below his(her) name, and the signature set forth above is his(her)
true signature, (7) the undersigned is authorized to deliver this Certificate on
behalf of each Loan Party, and (8) Agent and each Lender may conclusively rely
on this Certificate unless and until superseding documents shall be delivered to
Agent.
M/I
HOMES, INC., as the Borrower and the parent of each Guarantor
By: ___________________________________________
J.
Xxxxxx Xxxxx,
Executive
Vice President, General Counsel and Secretary
