COMMITMENT INCREASE ACTIVATION NOTICE
Exhibit 10.2
To: | PNC Bank, National Association, as Administrative Agent |
under the Credit Agreement referred to below
Reference is made to the Credit Agreement, dated as of July 18, 2013 (as amended by the First Amendment, dated as of October 20, 2014, the Second Amendment, dated as of July 18, 2017, and as further amended, supplemented or modified from time to time, the “Credit Agreement”), among M/I Homes, Inc. (the “Borrower”), the Lenders party thereto, certain other parties and PNC Bank, National Association, as administrative agent (the “Administrative Agent”). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
This notice is an activation notice referred to in Section 2.21 of the Credit Agreement, and the Borrower and the Lender party hereto hereby notify you that:
1. The Lender party hereto agrees to increase the amount of its Commitment as set forth opposite the Lender’s name on the signature pages hereof under the caption “Incremental Commitment Amount”.
2. The Increased Facility Closing Date is June 29, 2018.
3. The aggregate amount of the Incremental Commitment contemplated hereby is $25,000,000.
4. The agreement of the Lender party hereto to obtain an Incremental Commitment on the Increased Facility Closing Date is subject to the satisfaction of the following conditions precedent:
(a) Activation Notice. The Administrative Agent shall have received this notice, executed and delivered by the Borrower and the Lender party hereto.
(b) Representations and Warranties; No Defaults. On and as of the Increased Facility Closing Date and after giving effect to the Incremental Commitment, (i) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents are true and correct in all material respects (provided that to the extent any such representation and warranty is already qualified by materiality or reference to Material Adverse Effect, such representation and warranty is true and correct in all respects) and (ii) no Default or Event of Default has occurred and is continuing.
(c) Officer’s Certificate. The Administrative Agent shall have received a certificate from the Borrower certifying as to the satisfaction of the conditions in clause (b) above.
(d) Reaffirmation Agreement. The Administrative Agent shall have received a Reaffirmation Agreement, executed and delivered by each Guarantor and the Administrative Agent.
(e) Notes. The Administrative Agent shall have received any Notes requested by the Lender party hereto payable to the order of the Lender.
(f) Closing Certificates; Certified Certificate of Incorporation; Good Standing Certificates. The Administrative Agent shall have received the following supporting documents with respect to the Borrower and the other Loan Parties:
(i) (A) a copy of its certificate or articles of incorporation, formation, organization or certificate of limited partnership (as applicable), certified as of a date reasonably close to the Increased Facility Closing Date to be a true and accurate copy by the Secretary of State (or similar Governmental Authority) of its state of incorporation or formation or (B) a certificate of its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable) certifying that the true and accurate copy of the certificate or articles of incorporation, formation, organization or certificate of limited partnership (as applicable) delivered to the Administrative Agent on or about July 18, 2013 (or in the case of a Loan Party that became a Restricted Subsidiary after July 18, 2013, the date of the delivery of such document to the Administrative Agent in connection with such Loan Party becoming a Restricted Subsidiary) has not been amended, modified, replaced or substituted in any manner since the date of such delivery;
(ii) a certificate of that Secretary of State (or similar Governmental Authority), dated as of a date reasonably close to the Increased Facility Closing Date, as to its existence and (if available) good standing;
(iii) (A) a copy of its regulations or by-laws, partnership agreement, or operating agreement or limited liability company agreement (as applicable), certified by its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable) to be a true and accurate copy of its regulations or by-laws, partnership agreement, or operating agreement or limited liability company agreement (as applicable) in effect on the Increased Facility Closing Date or (B) a certificate of its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable) certifying that the true and accurate copy of its regulations or by-laws, partnership agreement, or operating agreement or limited liability company agreement (as applicable) delivered to the Administrative Agent on or about July 18, 2013 (or in the case of a Loan Party that became a Restricted Subsidiary after July 18, 2013, the date of the delivery of such document to the Administrative Agent in connection with such Loan Party becoming a Restricted Subsidiary) has not been amended, modified, replaced or substituted in any manner since the date of such delivery;
(iv) a certificate of its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable), as to the incumbency and signatures of its officers or other Persons who have executed any documents on behalf of such Loan Party in connection with the transactions contemplated by this Commitment Increase Activation Notice and the Credit Agreement;
(v) (A) a copy of resolutions of its board of directors or the executive committee of the board of directors, certified by its secretary or assistant secretary to be a true and accurate copy of resolutions duly adopted by such board of directors or the executive committee of the board of directors, or other appropriate resolutions or consents of its general partner, manager or members certified by its secretary, assistant secretary, general partner or manager (as applicable) to be true and correct copies thereof duly adopted,
approved or otherwise delivered by its general partner, manager or members (to the extent necessary and applicable), each of which is certified to be in full force and effect on the Increased Facility Closing Date, authorizing the execution and delivery by it of this Commitment Increase Activation Notice and any Notes, the Reaffirmation Agreement and other Loan Documents delivered on the Increased Facility Closing Date to which it is a party and the performance by it of all its obligations thereunder and under the Credit Agreement or (B) a certificate of its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable) certifying that the true and accurate copy of resolutions of its board of directors or the executive committee of the board of directors duly adopted by such board of directors or executive committee of the board of directors, or other appropriate resolutions or consents of its general partner, manager or members duly adopted, approved or otherwise delivered by its general partner, manager or members (to the extent necessary and applicable), in each case, authorizing the execution and delivery by it of this Commitment Increase Activation Notice and any Notes, the Reaffirmation Agreement and other Loan Documents delivered on the Increased Facility Closing Date to which it is a party and the performance by it of all its obligations thereunder and under the Credit Agreement and delivered to the Administrative Agent on or about July 18, 2017 (or in the case of a Loan Party that became a Restricted Subsidiary after July 18, 2017, the date of the delivery of such document to the Administrative Agent in connection with such Loan Party becoming a Restricted Subsidiary), are in full force and effect on the Increased Facility Closing Date and have not been amended, modified, replaced or substituted in any manner since the date of such delivery; and
(vi) such additional supporting documents and other information with respect to its operations and affairs as the Administrative Agent may reasonably request.
(g) Legal Opinion. The Administrative Agent shall have received, on behalf of itself and the Lenders, a favorable legal opinion of Xxxxx, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel to the Borrower and its Subsidiaries, in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Loan Documents as the Administrative Agent may reasonably require.
(h) Fees and Expenses. The Administrative Agent shall have received all fees required to be paid on or before the Increased Facility Closing Date and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel to the Administrative Agent) on or before the Increased Facility Closing Date.
5. The parties hereto acknowledge that after giving effect to the Incremental Commitment and the Commitment Increase contemplated by this Commitment Increase Activation Notice, the Commitment of each Lender shall be as set forth in Exhibit A hereto.
[Signature page follows]
M/I HOMES, INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Treasurer and Senior Vice President, Finance and Business Development
Incremental Commitment Amount FLAGSTAR BANK, FSB
$25,000,000.00
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: VP
CONSENTED TO:
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/ X. Xxxxxxx Xxxxxx
Name: X. Xxxxxxx Xxxxxx
Title: Senior Vice President
EXHIBIT A
Commitments
Lender | Commitment |
PNC Bank, National Association | $52,000,000 |
Citibank, N.A. | $52,000,000 |
Fifth Third Bank | $52,000,000 |
JPMorgan Chase Bank, N.A. | $52,000,000 |
U.S. Bank National Association | $52,000,000 |
Xxxxx Fargo Bank, National Association | $52,000,000 |
The Huntington National Bank | $43,000,000 |
Comerica Bank | $40,000,000 |
Texas Capital Bank, National Association | $30,000,000 |
Associated Bank, National Association | $25,000,000 |
Regions Bank | $25,000,000 |
Flagstar Bank, FSB | $25,000,000 |
Total Commitments | $500,000,000 |
