SECOND AMENDMENT TO FIRST AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Exhibit
10.4
SECOND
AMENDMENT TO
FIRST
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS
SECOND AMENDMENT TO FIRST AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(herein called this "Amendment")
dated
as of April 27, 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, 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 Second Amendment to Credit Agreement.
"Amendment
Documents"
shall
mean, collectively, this Amendment and the Renewal Note.
"Commitment"
shall
mean the Bank's agreement to make the Loans to the Borrowers pursuant to
subsection 2.1 hereof in the amount referred to herein, which amount shall
not exceed the lesser of (a)(i) from and including April 27, 2007
through and including December 14, 2007, $40,000,000, (ii) from and
including December 15, 2007 through and including January 15, 2008,
$65,000,000 and (iii) from and including January 16, 2008 through and
including April 25, 2008, $40,000,000, and (b) the Borrowing Base in
existence at such time.
"Credit
Agreement"
shall
mean the Original Credit Agreement, as amended hereby.
"Renewal
Note"
shall
mean a promissory note in the form attached hereto as
Exhibit A.
ARTICLE
II.
Amendments
to Original Credit Agreement
Section
2.1. Definitions.
(a) The
definition of "Commitment
Period"
in
Section 1.1 of the Original Credit Agreement is hereby amended in its
entirety to read as follows:
"Commitment
Period"
shall
mean the period from and including April 27, 2007 through and including
April 25, 2008, or such earlier date as the Commitment shall terminate as
provided herein, subject to any extension of the Commitment pursuant to
subsection 2.7
of this
Agreement.
(b) The
definition of "Eligible
Mortgage Loan"
in
Section 1.1 of the Original Credit Agreement is hereby amended by amending
clause ii. thereof to read as follows:
ii. Such
Mortgage Loan was made by Financial and purchased by Financial to enable a
natural person or persons or trust either to purchase a home from M/I Homes
or
another Person that is substantially completed or to refinance an existing
mortgage loan; provided that
(A) the aggregate amount of Eligible Mortgage Loans consisting of loans
made by Financial for the purchase of homes from any Person other than M/I
Homes
does not exceed the Other Mortgage Sublimit, (B) the aggregate amount of
Eligible Mortgage Loans used to refinance existing mortgage loans does not
exceed the ReFi Sublimit; (C) the aggregate amount of Eligible Mortgage
Loans that are CD Enhanced Loans does not exceed the CD Enhanced Sublimit,
(D) the aggregate amount of Eligible Mortgage Loans that are Second
Mortgage Loans does not exceed the Second Mortgage Sublimit, and (E) the
aggregate amount of Eligible Mortgage Loans that are subject to repurchase
obligations described in clause (G) of the definition of Mortgage Loan
Repurchase Obligations shall not exceed the Deferred Payment
Sublimit;
Section
2.2. Exhibits.
Exhibit A (Form of Note) attached to this Amendment is hereby substituted
for Exhibit A 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,
(b) the
Renewal Note,
(c) 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 the Note and identifying the officers authorized to sign this
Amendment and the Note, 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;
and.
(d) each
other document to be executed and delivered by Borrowers pursuant hereto or
thereto.
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 the other
Amendment Documents 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 the other Amendment Documents 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 and the other
Amendment Documents, 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 and the other
Amendment Documents or to consummate the transactions contemplated hereby and
thereby; and
(d) When
duly
executed and delivered, each of this Amendment and the other Amendment Documents
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. Any reference to the Note in any
other Loan Document shall be deemed to be a reference to the Renewal Note issued
and delivered pursuant to this Amendment. The execution, delivery and
effectiveness of this Amendment, the other Amendment Documents, 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 and the other Amendment Documents are each 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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Xxxxx
Xxxx
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Xxxxxxx
X. Creek
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Senior
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
A
REVOLVING
LOAN PROMISSORY NOTE
$65,000,000.00 Dallas,
Texas April
27,
2007
FOR
VALUE
RECEIVED, the undersigned M/I FINANCIAL CORP. and M/I HOMES, INC. ("Borrowers"),
jointly and severally promise to pay to the order of GUARANTY BANK (herein
called "Bank"),
the
principal sum of Sixty-Five Million and No/100 Dollars ($65,000,000.00)
or, if
less, the aggregate unpaid principal amount of the Loans made under this
Note by
Bank to Borrowers pursuant to the terms of the Loan Agreement (as hereinafter
defined), together with interest on the unpaid principal balance thereof
as
hereinafter set forth, both principal and interest payable as herein provided
in
lawful money of the United States of America at the offices of the Bank,
0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxx or at such other place within Dallas
County, Texas, as from time to time may be designated by the holder of
this
Note.
This
Note
(a) is issued and delivered under that certain First Amended and Restated
Revolving Credit Agreement, dated as of April 27, 2006 among Borrowers and
Bank (herein, as from time to time supplemented, amended or restated, called
the
"Loan
Agreement"),
and
is the Note as defined therein, and (b) is subject to the terms and
provisions of the Loan Agreement, which contains provisions for payments
and
prepayments hereunder and acceleration of the maturity hereof upon the
happening
of certain stated events. Payments on this Note shall be made and applied
as
provided herein and in the Loan Agreement. Reference is hereby made to
the Loan
Agreement for a description of certain rights, limitations of rights,
obligations and duties of the parties hereto and for the meanings assigned
to
terms used and not defined herein.
This
Note
is given in amendment, renewal and extension (but not in extinguishment
or
novation) of that certain revolving loan promissory note dated April 27,
2006, executed by Borrowers payable to the order of Bank in the stated
principal
amount of $65,000,000.
On
the
fifteenth (15th) day of each calendar month, beginning on May 15, 2007,
Borrower shall pay to the holder hereof all unpaid interest which has accrued
on
the Loans through and including the last day of the immediately preceding
calendar month. The principal amount of this Note, together with all interest
accrued hereon, shall be due and payable in full on the last day of the
Commitment Period which, if it does not occur sooner pursuant to the terms
of
the Loan Agreement, or if it is not extended pursuant to subsection 2.7,
shall
be April 25, 2008.
Prime
Rate Loans (exclusive of any past due principal or interest) from time
to time
outstanding shall bear interest on each day outstanding at the Prime Rate
in
effect on such day. LIBOR Rate Loans (exclusive of any past due principal
or
interest) from time to time outstanding shall bear interest on each day
outstanding at the LIBOR Rate determined for such day plus one and thirty-five
one-hundredths percent (1.35%). Notwithstanding the foregoing provisions
of this
paragraph, if an Event of Default has occurred and is continuing, all Loans
from
time to time outstanding shall bear interest on each day outstanding at
a rate
per annum which is the sum of (i) three percent (3.0%), and (ii) the
rate which would otherwise be applicable thereto, from the date of such
non-payment until paid in full (before, as well as after, judgment), and
such
interest shall be due and payable immediately as it accrues. Notwithstanding
the
foregoing provisions of this paragraph, if at any time the rate at which
interest is payable on this Note exceeds the maximum nonusurious rate of
interest Bank is permitted to contract for, take, charge, or receive with
respect to the Loans (the "Maximum
Rate"),
this
Note shall bear interest at the Maximum Rate only but shall continue to
bear
interest at the Maximum Rate until such time as the total amount of interest
accrued hereon equals (but does not exceed) the total amount of interest
which
would have accrued hereon had there been no Maximum Rate applicable
hereto.
Notwithstanding
the foregoing paragraph and all other provisions of this Note, in no event
shall
the interest payable hereon, whether before or after mat city, exceed the
maximum amount of interest which, under applicable law, may be charged
on this
Note, and this Note is expressly made subject to the provisions of the
Loan
Agreement which more fully set out the limitations on how interest accrues
hereon. In the event applicable law provides for a ceiling under
Section 303 of the Texas Finance Code, that ceiling shall be the weekly
rate ceiling and shall be used in this Note for calculating the Maximum
Rate and
for all other purposes. The term "applicable law" as used in this Note
shall
mean the laws of the State of Texas or the laws of the United States, whichever
laws allow the greater interest, as such laws now exist or may be changed
or
amended or come into effect in the future.
If
this
Note is placed in the hands of an attorney for collection after default,
or if
all or any part of the indebtedness represented hereby is proved, established
or
collected in any court or in any bankruptcy, receivership, debtor relief,
probate or other court proceedings, Borrower and all endorsers, sureties
and
guarantors of this Note jointly and severally agree to pay reasonable attorneys'
fees and collection costs to the holder hereof in addition to the principal
and
interest payable hereunder.
Borrower
and all endorsers, sureties and guarantors of this Note hereby severally
waive
demand, presentment, notice of demand and of dishonor and nonpayment of
this
Note, protest, notice of protest, notice of intention to accelerate the
maturity
of this Note, declaration or notice of acceleration of the maturity of
this
Note, diligence in collecting, the bringing of any suit against any party
and
any notice of or defense on account of any extensions, renewals, partial
payments or changes in any manner of or in this Note or in any of its terms,
provisions and covenants, or any releases or substitutions of any security,
or
any delay, indulgence or other act of any trustee or any holder hereof,
whether
before or after maturity.
No
waiver
by Bank of any of its rights or remedies hereunder or under any other document
evidencing or securing this Note or otherwise shall be considered a waiver
of
any other subsequent right or remedy of Bank; no delay or omission in the
exercise or enforcement by Bank of any rights or remedies shall ever by
construed as a waiver of any right or remedy of Bank; and no exercise or
enforcement of any such rights or remedies shall ever be held to exhaust
any
right or remedy of Bank.
THIS
NOTE AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO SHALL BE GOVERNED
BY THE
LAWS OF THE STATE OF TEXAS, EXCEPT TO THE EXTENT THE SAME ARE GOVERNED
BY
APPLICABLE FEDERAL LAW.
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M/I
FINANCIAL CORP.
By:
Xxxxxxx
X. Creek
Chief Financial Officer and Treasurer
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M/I
HOMES, INC.
By:
Xxxxxxx
X. Creek
Senior
Vice President, Chief
Financial
Officer and Assistant Secretary
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Dallas_1\4869808\1
6088-480
4/12/2007
