COMMITMENT AND ACCEPTANCE
Exhibit
10.1
This
Commitment and Acceptance (this “Commitment and Acceptance”) dated as of
December 2, 2005, is entered into among the parties listed on the signature
pages hereof. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Credit Agreement (as defined
below).
PRELIMINARY
STATEMENTS
Reference
is made to that certain Amended and Restated Credit Agreement dated April 22,
2005 by and among M/I Homes, Inc., JPMorgan Chase Bank, N.A., as Agent, and
the
Lenders party thereto (as amended, modified, supplemented or restated from
time
to time, the “Credit Agreement”).
Pursuant
to subsection 2.6(b) of the Credit Agreement, Borrower has requested an increase
in the Aggregate Commitment from $600,000,000 to $725,000,000. Such increase
in
the Aggregate Commitment is to become effective on December 2, 2005 (the
“Increase Date”). In connection with such requested increase in the Aggregate
Commitment, Borrower, Agent and the lenders identified on Schedule I hereto
(each, an “Accepting Lender”) hereby agree as follows:
1. ACCEPTING
LENDERS’ COMMITMENTS.
Effective as of the Increase Date, (a) each of the Accepting Lenders that was
not heretofore party to the Credit Agreement (each, a “New Lender”) shall become
a party to the Credit Agreement as a Lender, shall have (subject to the
provisions of subsection 2.6(b) of the Credit Agreement) all of the rights
and
obligations of a Lender thereunder, shall agree to be bound by the terms and
provisions thereof and shall thereupon have a Commitment under and for purposes
of the Credit Agreement in the amount set forth in Schedule I hereto as its
“New
Commitment” and (b) the Commitment of each Accepting Lender that was heretofore
a party to the Credit Agreement shall be increased from the amount set forth
on
Schedule I as its “Original Commitment” to the amount set forth on Schedule I as
its “New Commitment.”
2. REPRESENTATIONS
AND AGREEMENTS OF ACCEPTING LENDERS.
Each
Accepting Lender represents and warrants that it has full power and authority,
and has taken all action necessary, to execute and deliver this Commitment
and
Acceptance and to consummate the transactions contemplated hereby and (in the
case of each New Lender) to become a Lender under the Credit Agreement. Each
New
Lender (a) represents and warrants that (i) it satisfies the requirements,
if
any, specified in the Credit Agreement that are required to be satisfied by
it
in order to become a Lender, (ii) from and after the Increase Date, it shall
be
bound by the provisions of the Credit Agreement as a Lender thereunder and,
to
the extent of its Commitment, shall have the obligations of a Lender thereunder,
(iii) it has received a copy of the Credit Agreement, together with copies
of
the most recent financial statements delivered pursuant to subsection 6.1
thereof and such other documents and information as it has deemed appropriate
to
make its own credit analysis and decision to enter into this Commitment and
Acceptance on the basis of which it has made such analysis and decision
independently and without reliance on the Agent or any other Lender, and (iv)
if
it is a Non-U.S. Lender, attached to this Commitment and Acceptance is any
documentation required to be delivered by it pursuant to the terms of the Credit
Agreement, duly completed and executed by the New Lender; and (b) agrees that
(i) it will, independently and without reliance on the Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents
are
required to be performed by it as a Lender.
3. REPRESENTATIONS
OF BORROWER.
Borrower hereby represents and warrants that, as of the date hereof and as
of
the Increase Date, (a) no event or condition shall have occurred and then be
continuing which constitutes a Default or Event of Default and (b) the
representations and warranties contained in Section 4 of the Credit Agreement
are true and correct in all material respects (except to the extent any such
representation or warranty is stated to relate solely to an earlier date).
4. GOVERNING
LAW.
This
Commitment and Acceptance shall be governed by the internal laws (including
§735ILCS 105/5-1 et seq.,
but
otherwise without regard to principles of conflict of law) of the State of
Illinois but giving effect to federal laws applicable to national
banks.
IN
WITNESS WHEREOF, the parties hereto have executed this Commitment and Acceptance
by their duly authorized officers as of the date first above
written.
M/I
HOMES, INC.
By:
/s/
Xxxxxxx X. Creek
Name:
Xxxxxxx X. Creek
Title:
Senior Vice President & CFO
JPMORGAN
CHASE BANK, N.A., as Agent
and
as an
Accepting Lender
By:
/s/
Xxxxxxx X’Xxxxx
Name:
Xxxxxxx X’Xxxxx
Title:
Associate
SIGNATURE
PAGE OF THE UNDERSIGNED AS AN ACCEPTING LENDER UNDER
THE
COMMITMENT AND ACCEPTANCE WITH M/I HOMES, INC.
U.S.
BANK
NATIONAL ASSOCIATION
By:
/s/
Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Banking Officer
SIGNATURE
PAGE OF THE UNDERSIGNED AS AN ACCEPTING LENDER UNDER
THE
COMMITMENT AND ACCEPTANCE WITH M/I HOMES, INC.
BANK
OF
AMERICA, N.A.
By:
/s/
Xxxx X. Xxxxxxxxx
Name:
Xxxx X. Xxxxxxxxx
Title:
Senior Vice President
SIGNATURE
PAGE OF THE UNDERSIGNED AS AN ACCEPTING LENDER UNDER
THE
COMMITMENT AND ACCEPTANCE WITH M/I HOMES, INC.
WACHOVIA
BANK, NATIONAL ASSOCIATION
By:
/s/
Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Vice President
SIGNATURE
PAGE OF THE UNDERSIGNED AS AN ACCEPTING LENDER UNDER
THE
COMMITMENT AND ACCEPTANCE WITH M/I HOMES, INC.
THE
HUNTINGTON NATIONAL BANK
By:
/s/
Xxxx X. Xxxxxxxx
Name:
Xxxx X. Xxxxxxxx
Title:
Vice President
SIGNATURE
PAGE OF THE UNDERSIGNED AS AN ACCEPTING LENDER UNDER
THE
COMMITMENT AND ACCEPTANCE WITH M/I HOMES, INC.
SUNTRUST
BANK
By:
/s/
W. Xxxx Xxxxxxx
Name:
W.
Xxxx Xxxxxx
Title:
Senior Vice President
SIGNATURE
PAGE OF THE UNDERSIGNED AS AN ACCEPTING LENDER UNDER
THE
COMMITMENT AND ACCEPTANCE WITH M/I HOMES, INC.
GUARANTY
BANK
By:
/s/
Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
Senior Vice President
SIGNATURE
PAGE OF THE UNDERSIGNED AS AN ACCEPTING LENDER UNDER
THE
COMMITMENT AND ACCEPTANCE WITH M/I HOMES, INC.
CHARTER
ONE BANK, N.A.
By:
/s/
Xxxx X. Xxxxxxxxx
Name:
Xxxx X. Xxxxxxxxx
Title:
Senior Vice President
SIGNATURE
PAGE OF THE UNDERSIGNED AS AN ACCEPTING LENDER UNDER
THE
COMMITMENT AND ACCEPTANCE WITH M/I HOMES, INC.
COMPASS
BANK
By:
/s/
X. X. Xxxxx
Name:
X.X. Xxxxx
Title:
Vice President
SIGNATURE
PAGE OF THE UNDERSIGNED AS AN ACCEPTING LENDER UNDER
THE
COMMITMENT AND ACCEPTANCE WITH M/I HOMES, INC.
FRANKLIN
BANK, S.S.B., a Texas chartered bank
By:
/s/
Xxxxx X. York
Name:
Xxxxx X. York
Title:
Senior Vice President
SIGNATURE
PAGE OF THE UNDERSIGNED AS AN ACCEPTING LENDER UNDER
THE
COMMITMENT AND ACCEPTANCE WITH M/I HOMES, INC.
LASALLE
BANK NATIONAL ASSOCIATION
By:
/s/
Xxxxxx Xxxxx
Name:
Xxxxxx Xxxxx
Title:
Vice President
SCHEDULE
1
COMMITMENTS
|
Accepting
Lender
|
Original
Commitment
|
New
Commitment
|
|
|
JPMorgan
Chase Bank, N.A.
|
$
|
47,500,000
|
55,000,000
|
|
U.S.
Bank National Association
|
$
|
47,500,000
|
50,000,000
|
|
Bank
of America, N.A.
|
$
|
47,500,000
|
55,000,000
|
|
Wachovia
Bank, National Association
|
$
|
47,500,000
|
55,000,000
|
|
The
Huntington National Bank
|
$
|
45,000,000
|
55,000,000
|
|
SunTrust
Bank
|
$
|
35,000,000
|
40,000,000
|
|
Guaranty
Bank
|
$
|
30,000,000
|
35,000,000
|
|
Charter
One Bank, N.A.
|
$
|
25,000,000
|
40,000,000
|
|
Compass
Bank
|
$
|
-0-
|
15,000,000
|
|
Franklin
Bank, S.S.B., a Texas chartered bank
|
$
|
-0-
|
25,000,000
|
|
LaSalle
Bank National Association
|
$
|
-0-
|
25,000,000
|
