EXHIBIT 10.1
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
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THIS SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT (herein called this
"AMENDMENT") made as of May 1, 2003 by and among M/I FINANCIAL CORP., an Ohio
corporation ("FINANCIAL"), 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 Revolving
Credit Agreement dated as of May 3, 2001 (as heretofore amended, 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" means this Second Amendment to Credit Agreement.
"'AMENDMENT DOCUMENTS" means, collectively, this Amendment and the
Renewal Note.
"CREDIT AGREEMENT" means the Original Credit Agreement as amended
hereby.
"RENEWAL NOTE" means a promissory note in the form attached hereto as
Exhibit A.
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ARTICLE II.
Amendments to Original Credit Agreement
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Section 2.1 DEFINITIONS. 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
May 1, 2003 through and including April 29, 2004, which is 364 days
after May 1, 2003, or such earlier date as the Commitment shall
terminate as provided herein, subject to any extension of the
Commitment Period pursuant to subsection 2.7 of this Agreement.
Section 2.2 Section 2.2 of the Original Credit Agreement is hereby
amended in its entirety to read as follows:
2.2 NOTE. The Loans made by the Bank pursuant hereto shall be
evidenced by a promissory note of the Borrowers, substantially in the
form of Exhibit A attached hereto and made a part hereof (the "NOTE"),
payable to the order of the Bank and evidencing the obligation of the
Borrowers to pay the aggregate unpaid principal amount of the Loans
made by the Bank, with interest thereon during the Commitment Period
and thereafter at a rate per annum equal to (i) in the case of Prime
Rate Loans, the Prime Rate in effect from time to time and (ii) in the
case of Eurodollar Rate Loans if permitted hereunder at such time, the
Eurodollar Rate determined for each such loan plus 1.55%, subject with
respect to each of the aforesaid interest rates to the default interest
rate provisions of subsection 2.6(c) hereof. Interest shall be payable
in arrears and shall be due on the fifteenth day of each month for the
period ending on the last day of the immediately preceding calendar
month, beginning with May 15, 2003, and continuing on the 15th day of
each month thereafter, and on the last day of the Commitment Period. If
not sooner paid, the entire principal amount of the Loans outstanding
and any remaining unpaid interest on the Loans shall be due and payable
on, the last day of the Commitment Period. The Bank is hereby
authorized to record electronically or otherwise the date and amount of
each Loan disbursement made by the Bank and the date and amount of each
payment or prepayment of principal thereof, and any such recordation
shall constitute conclusive evidence, absent manifest error, of the
accuracy of the information so recorded; provided, however, the failure
of the Bank to make any such recordation(s) shall not affect the
obligation of the Borrowers to repay outstanding principal, interest,
or any other amount due hereunder or under the Note in accordance with
the terms hereof and thereof. The Note shall (a) be dated as of May 1,
2003, (b) be stated to mature on the last day of the Commitment Period,
and (c) bear interest from and including the date thereof on the unpaid
principal amount thereof from time to time outstanding at a rate per
annum equal to (i) in the case of Prime Rate Loans, the Prime Rate in
effect from time to time and (ii) in the case of Eurodollar Rate Loans,
the Eurodollar Rate determined for each such loan plus 1.55% subject
with respect to each of the aforesaid interest rates to the default
interest rate provisions of subsection 2.6(c) hereof.
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Section 2.3 Section 2.4 of the Original Credit Agreement is hereby
amended in its entirety to read as follows:
2.4 COMMITMENT FEE. The Borrowers agree to pay to the Bank a
commitment fee for the Commitment Period, computed at the rate of 1/5%
per annum, on the average daily unused amount of the Commitment of the
Bank during the Commitment Period, payable quarterly in arrears and due
on the fifteenth day of each July, October, January and April for the
three-month period ending on the last day of the immediately preceding
calendar month, and on the last day of the Commitment Period,
commencing on the first of such dates to occur after the date hereof.
Exhibits. Exhibit A (Form of Note) attached to this Agreement is hereby
substituted for Exhibit A to the Original Credit Agreement.
ARTICLE III.
Conditions of Effectiveness
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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 that (i) resolutions of its board of directors delivered to Bank
in connection with the closing of the Original Credit Agreement authorize the
execution, delivery, and performance of this Amendment and identifying the
officers authorized to sign such instrument are in full force and effect,
(ii) the specimen signatures of the officers so authorized which were
delivered to Bank are true and correct, subject to the modification set forth
in each such certificate, and (iii) the articles of incorporation and code of
regulations of such Borrower delivered to Bank have not been amended since
the date of the Original Credit Agreement,
(d) payment of a fee in the amount of $15,000 in immediately available
funds, and
(e) 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:
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(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
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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
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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.
By: By:
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Xxxxx Xxxx Xxxxxxx X. Creek
Vice President Chief Financial Officer
M/I SCHOTTENSTEIN HOMES, INC.
By:
-------------------------------------
Xxxxxx X. Xxxxxxxxxxxxx
President and Assistant Secretary
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EXHIBIT A
RENEWAL PROMISSORY NOTE
REVOLVING LOAN PROMISSORY NOTE
------------------------------
$30,000,000 Dallas, Texas May 1, 2003
FOR VALUE RECEIVED, the undersigned M/I FINANCIAL CORP. and M/I
SCHOTTENSTEIN HOMES, INC. ("BORROWERS"), jointly and severally promise to pay to
the order of GUARANTY BANK (herein called "BANK"), the principal sum of Thirty
Million Dollars ($30,000,000) 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 Revolving
Credit Agreement dated as of May 3, 2001 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 renewal and extension (but not in extinguishment
or novation) of that certain promissory note dated May 2, 2002, executed by
Borrowers payable to the order of Bank in the stated principal amount of
$30,000,000.
On the fifteenth (15th) day of each calendar month, beginning on May
15, 2003, 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,
Extension of Commitment Period, of the Loan Agreement, shall be April 29, 2004.
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. Eurodollar Rate Loans (exclusive of any past
due principal or interest) from time to time outstanding shall bear interest on
each day outstanding at the Eurodollar Rate determined for such day plus 1.55%.
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%),
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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 if 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 maturity, 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 suite
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 be 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.
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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.
M/I FINANCIAL CORP. M/I SCHOTTENSTEIN HOMES, INC.
By: By:
--------------------------- ------------------------------------
Xxxxxxx X. Creek Xxxxxx X. Xxxxxxxxxxxxx
Chief Financial Officer President and Assistant Secretary
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M/I FINANCIAL CORP.
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OFFICERS' CERTIFICATE
---------------------
The undersigned officers of M/I Financial Corp., an Ohio corporation
(the "CORPORATION"), hereby certify that (i) the Action in Writing by the Sole
Shareholder of M/I Financial Corp., dated May 3, 2001, which was delivered to
Guaranty Bank (the "BANK") in connection with the closing of the Revolving
Credit Agreement, dated May 3, 2001, by and among the Corporation, M/I
Schottenstein Homes, Inc., an Ohio corporation ("M/I HOMES") (the Corporation
and M/I Homes are sometimes hereinafter referred to as the "BORROWERS") and the
Bank (the "ORIGINAL CREDIT AGREEMENT"), and which authorizes the execution,
delivery and performance of any amendments to the Original Credit Agreement
(each such amendment, an "AMENDED CREDIT AGREEMENT") and identifies the officers
authorized to sign any Amended Credit Agreement, is in full force and effect
without amendment or modifications as of the date hereof, (ii) the specimen
signatures of the officers authorized to sign any Amended Credit Agreement,
which were delivered to the Bank in the M/I Financial Corp. Incumbency and
Signature Certificate, dated May 3, 2001 and certified by Xxxx X. Xxxxxx, are
true and correct, except that J. Xxxxxx Xxxxx has subsequently replaced Xxxx X.
Xxxxxx as Secretary of the Corporation, and (iii) the Articles of Incorporation
and Code of Regulations of the Corporation delivered to the Bank have not been
amended or modified since the date of the Original Credit Agreement.
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Xxxxxxx X. Creek, Chief Financial Officer
and Treasurer
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J. Xxxxxx Xxxxx, Secretary
Dated: ______________________, 2003
I, Xxxxxxx X. Creek, Chief Financial Officer and Treasurer of the Corporation
hereby certify that J. Xxxxxx Xxxxx is the duly elected, qualified and acting
Secretary of the Corporation and that the signature set forth above is his
signature.
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Dated: _________________________, 2003
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M/I SCHOTTENSTEIN HOMES, INC.
-----------------------------
OFFICERS' CERTIFICATE
---------------------
The undersigned officers of M/I Schottenstein Homes, Inc., an Ohio
corporation (the "CORPORATION"), hereby certify that (i) the Action of the
Executive Committee of the Board of Directors of M/I Schottenstein Homes, Inc.
Without a Meeting, dated May 3, 2001, which was delivered to Guaranty Bank (the
"BANK") in connection with the closing of the Revolving Credit Agreement, dated
May 3, 2001, by and among the Corporation, M/I Financial Corp., an Ohio
corporation ("M/I FINANCIAL") (the Corporation and M/I Financial are sometimes
hereinafter referred to as the "BORROWERS") and the Bank (the "ORIGINAL CREDIT
AGREEMENT"), and which authorizes the execution, delivery and performance of any
amendments to the Original Credit Agreement (each such amendment, an "AMENDED
CREDIT AGREEMENT") and identifies the officers authorized to sign any Amended
Credit Agreement, is in full force and effect without amendment or modifications
as of the date hereof, (ii) the specimen signatures of the officers authorized
to sign any Amended Credit Agreement, which were delivered to the Bank in the
M/I Schottenstein Homes, Inc. Incumbency and Signature Certificate, dated May 3,
2001 and certified by Xxxx X. Xxxxxx, are true and correct, except that J.
Xxxxxx Xxxxx has subsequently replaced Xxxx X. Xxxxxx as General Counsel and
Secretary of the Corporation, and (iii) the Articles of Incorporation and Code
of Regulations of the Corporation delivered to the Bank have not been amended or
modified since the date of the Original Credit Agreement.
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Xxxxxx X. Xxxxxxxxxxxxx, Vice Chairman,
President and Assistant Secretary
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J. Xxxxxx Xxxxx, General Counsel and
Secretary
I, Xxxxxx X. Xxxxxxxxxxxxx, Vice Chairman, President and Assistant Secretary of
the Corporation hereby certify that J. Xxxxxx Xxxxx is the duly elected,
qualified and acting General Counsel and Secretary of the Corporation and that
the signature set forth above is his signature.
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Dated: ______________________, 2003
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