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Exhibit 10.6
#8631318.02
Execution Counterpart
FIRST AMENDMENT TO FIFTH RESTATED REVOLVING CREDIT LOAN, SWINGLINE
LOAN AND STANDBY LETTER OF CREDIT AGREEMENT
This First Amendment to Fifth Restated Revolving Credit Loan,
Swingline Loan and Standby Letter of Credit Agreement (this "Amendment") is made
to be effective as of February 29, 2000, by and among M/I SCHOTTENSTEIN HOMES,
INC., an Ohio corporation ("M/I"), and M/I Homes, Inc., an Arizona corporation
and a wholly-owned Subsidiary of M/I ("M/I Homes") (M/I and M/I Homes are,
jointly, severally and jointly and severally, "Borrower"), BANK ONE, NA, a
national banking association ("Bank One"), THE HUNTINGTON NATIONAL BANK, a
national banking association ("HNB"), NATIONAL CITY BANK, a national banking
association ("NCB"), BANKBOSTON, N.A., a national banking association, ("BKB"),
FIFTH THIRD BANK, CENTRAL OHIO, an Ohio banking corporation ("Fifth Third"),
SUNTRUST BANK, CENTRAL FLORIDA, N.A., a national banking association ("STB"),
AMSOUTH BANK, an Alabama corporation ("ASB"), COMERICA BANK, a Michigan banking
corporation ("Comerica") and FIRSTAR BANK, N.A., a national banking association
("Firstar") (Bank One, HNB, NCB, BKB, Xxxxx Xxxxx, XXX, XXX, Xxxxxxxx and
Firstar, each a "Bank" and, collectively, "Banks"), and BANK ONE, NA, a national
banking association, as agent for Banks ("Agent"). For valuable consideration,
the receipt of which is hereby acknowledged, Borrower, Banks and Agent, each
intending to be legally bound, hereby recite and agree as follows:
BACKGROUND INFORMATION
A. Borrower, Banks and Agent are parties to a certain Fifth
Restated Revolving Credit Loan, Swingline Loan and Standby Letter of Credit
Agreement effective as of November 23, 1999 (the "Credit Agreement").
B. Borrower has requested that the Credit Agreement be amended
in certain respects and the Banks and Agent are prepared to do so on and subject
to the terms hereof.
AGREEMENT
1. Definitions. Except as otherwise defined in this Amendment,
terms defined in the Credit Agreement are used herein as defined therein.
2. Amendment. Subject to the satisfaction of the terms and
conditions of this Amendment and of the Credit Agreement, as amended hereby,
subsection 7.3(a)(iii) of the Credit Agreement is hereby amended to read in its
entirety as follows:
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"(iii) reimbursement obligations not in excess of
$30,000,000 at any one time outstanding on a consolidated
basis under Construction Bonds;"
3. Representations and Warranties. In order to induce Banks
and Agent to enter into this Amendment, Borrower hereby represents and warrants
to each Bank and to Agent that on the date hereof:
(a) it has the corporate power and authority to make,
deliver and perform this Amendment and to borrow under the
Credit Agreement as amended by this Amendment and has taken
all corporate action necessary to be taken by it to authorize
the borrowings on the terms and conditions of the Credit
Agreement as amended by this Amendment and to authorize the
execution, delivery and performance of the Credit Agreement as
amended by this Amendment;
(b) each of Borrower's Subsidiaries has the corporate
or limited liability company power and authority to make,
deliver and perform its Guarantor's Consent and Reaffirmation
of Guaranty Agreement attached to this Amendment and has taken
all corporate or limited liability company action necessary to
authorize the execution, delivery and performance of such
Guarantor's Consent and Reaffirmation of Guaranty Agreement;
and
(c) each of Borrower and Borrower's Subsidiaries (i)
is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or
formation, as appropriate, (ii) has the corporate or limited
liability company power and authority to conduct the business
in which it is currently engaged, (iii) is qualified as a
foreign corporation or limited liability company under the
laws of any jurisdiction where the failure to so qualify would
have a material adverse effect on the business of Borrower and
Borrower's Subsidiaries taken as a whole, and (iv) is in
compliance with all Requirements of Law except to the extent
that the failure to comply therewith would not, in the
aggregate, have a material adverse effect on the business,
operations, property or financial or other condition of
Borrower and Borrower's Subsidiaries taken as a whole and
would not materially and adversely affect the ability of
Borrower to perform its obligations under this Agreement and
the Notes.
4. Full Force and Effect. The Credit Agreement, including
without limitation Borrower's representations, warranties and covenants, as
amended by this Amendment, shall
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remain in full force and effect in accordance with its terms as amended hereby,
and upon the effective date of this Amendment, the terms "Agreement" and "this
Agreement" shall mean the Credit Agreement as amended by this Amendment.
5. Conditions Precedent. The obligations of Agent and Banks
pursuant to this Amendment are subject to the satisfaction of the following
conditions precedent prior to the effective date of this Amendment:
5.1. Execution of Amendment. This Amendment shall
have been executed by Borrower, Required Banks and Agent.
5.2. Execution of Guarantor Consents. The Guarantor's
Consent and Reaffirmation of Guaranty Agreement attached to
this Amendment shall have been duly executed and delivered by
each Guarantor.
5.3. No Default or Event of Default. No Default or
Event of Default shall have occurred and be continuing under
the Credit Agreement as of the effective date of this
Amendment.
6. Miscellaneous. This Amendment may be executed by one or
more of the parties to this Amendment on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. This Amendment shall be governed by, and construed in
accordance with, the local laws of the State of Ohio.
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IN WITNESS WHEREOF, Borrower, Banks and Agent have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
BORROWER
M/I SCHOTTENSTEIN HOMES, INC.
Executed at Columbus, Ohio By
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Xxxxxx X. Xxxxxxxxxxxxx
Title: President, Assistant Secretary
and Vice Chairman
M/I HOMES, INC.
Executed at Scottsdale, Arizona
By
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Xxxxxx X. Xxxxxxxxxxxxx
Title: Vice Chairman
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BANKS
BANK ONE, NA,
as Agent and as a Bank
By
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Xxxxxx X. Xxxxxxx
Title: Managing Director
THE HUNTINGTON NATIONAL BANK
By
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R. H. Friend
Title: Vice President
NATIONAL CITY BANK
By
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Title: ________________
BANKBOSTON, N.A.
By
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Xxxxxx X. Xxxxxxx
Title: Vice President
FIFTH THIRD BANK, CENTRAL OHIO
By
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Xxxx X. Xxxxxx
Title: Vice President
SUNTRUST BANK, CENTRAL FLORIDA,
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N.A.
By
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Xxxxxx Xxxxxxxx, Xx.
Title: Director/Vice President
AMSOUTH BANK
By
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Xxxxx Xxxxxxxx
Title: Senior Vice President
COMERICA BANK
By
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Xxxxxxx X. Xxxxxxx
Title: Vice President
FIRSTAR BANK, N.A.
By
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Xxxxx X. Xxxxxx
Title: Vice President
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GUARANTOR'S CONSENT AND REAFFIRMATION OF GUARANTY AGREEMENT
Each of the undersigned Guarantors hereby (a) acknowledges
that it has read the foregoing First Amendment to Fifth Restated Revolving
Credit Loan, Swingline Loan and Standby Letter of Credit Agreement made to be
effective as of February 29, 2000 (the "First Amendment"), and (b)(i) reaffirms
all of its obligations under the Guaranty Agreement dated as of November 23,
1999 (the "Guaranty Agreement") between Bank One, NA, agent, the undersigned and
each other Guarantor party thereto after giving effect to the First Amendment,
(ii) agrees that each reference to Credit Agreement and all words of similar
import in the Guaranty Agreement shall mean the Credit Agreement as amended by
the First Amendment and (iii) agrees that all of such Guarantor's
representations, warranties and covenants in the Guaranty Agreement shall
continue in full force and effect notwithstanding the First Amendment.
GUARANTORS
M/I FINANCIAL CORP., an Ohio corporation
By:_____________________________________
Xxxx X. Xxxxx
President
M/I HOMES CONSTRUCTION, INC., an Arizona
corporation
By:_____________________________________
Xxxxxx X. Xxxxxxxxxxxxx, Vice Chairman of M/I
Homes Construction, Inc.
NORTHEAST OFFICE VENTURE LIMITED
LIABILITY COMPANY, a Delaware limited
liability company, by M/I Schottenstein
Homes, Inc., its sole member
By:_____________________________________
Xxxxxx X. Xxxxxxxxxxxxx
President, Assistant Secretary and Vice Chairman
of M/I Schottenstein Homes, Inc.
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601RS, LLC, an Ohio limited liability company, by
M/I Schottenstein Homes, Inc., its sole
member
By:_________________________________________
Xxxxxx X. Xxxxxxxxxxxxx
President, Assistant Secretary and Vice Chairman
of M/I Schottenstein Homes, Inc.
M/I SCHOTTENSTEIN HOMES SERVICE
CORP., an Ohio corporation
By:_________________________________________
Xxxxxx X. Xxxxxxxxxxxxx
President of M/I Schottenstein Homes
Service Corp.
MHO, LLC, an Arizona limited liability company,
by M/I Homes, Inc., its sole member
By:_________________________________________
Xxxxxx X. Xxxxxxxxxxxxx
Vice Chairman of M/I Homes, Inc.
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