Modification of the Original Credit Agreement. Borrower, the Lenders and Agent do hereby modify and amend the Original Credit Agreement as follows:
By deleting in its entirety the definition of “Change of Control” appearing in §1.1 of the Original Credit Agreement, appearing on page 2 thereof, and inserting in lieu thereof the following definition:
“Change of Control.A Change of Control shall exist upon the occurrence of any of the following:
(a) any Person or group (as that term is understood under Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations thereunder) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of a percentage (based on voting power, in the event different classes of stock shall have different voting powers) of the voting stock of Borrower equal to at least fifty percent (50%); or
(b) as of any date a majority of the Board of Directors of Borrower consists of individuals who were not either (i) directors of Borrower as of the corresponding date of the previous year, (ii) selected or nominated to become directors by the Board of Directors of Borrower of which a majority consisted of individuals described in clause (b)(i) above, or (iii) selected or nominated to become directors by the Board of Directors of Borrower of which a majority consisted of individuals described in clause (b)(i) above and individuals described in clause (b)(ii), above.”
(b)By deleting the figure “$15,000,000.00” appearing in the second to last line of the definition of “Permitted Indebtedness” appearing in §1.1 of the Original Credit Agreement, appearing on page 12 thereof, and inserting in lieu thereof the figure “$40,000,000.00”.
(c)By deleting in its entirety the definition of “Senior Credit Agreement” appearing in §1.1 of the Original Credit Agreement, appearing on page 14 thereof, and inserting in lieu thereof the following definition of “Senior Credit Agreement”:
“Senior Credit Agreement. The Credit Agreement effective as of March 6, 2002 by and among the Borrower; Bank One, N.A., individually and as agent; The Huntington National Bank, individually and as documentation agent; U.S. Bank, N.A., National City Bank, AmSouth Bank, and SunTrust Bank, individually and as co-agents; Comerica Bank; Fifth Third Bank, Central Ohio; PNC Bank, National Association; Washington Mutual Bank, FA; Fleet National Bank; and Guaranty Bank; as the same may be amended, modified, extended, refinanced, renewed or replaced from time to time.”
(d)By deleting in its entirety the definition of “Senior Debt,” appearing on page 15 of the Original Credit Agreement, and inserting in lieu thereof the following definition of “Senior Debt”:
“Senior Debt. Senior Debt shall mean all Indebtedness for money borrowed by the Borrower, before or after the date of the Notes, created or evidenced by notes or similar instruments executed and delivered pursuant to (a) the Senior Credit Agreement up to the aggregate principal Indebtedness thereunder,
including reimbursement obligations relating to drawn letters of credit issued or outstanding pursuant thereto (and including any obligations with respect to letters of credit issued or outstanding pursuant thereto but which are undrawn), not exceeding $450,000,000.00, of which not more than $50,000,000.00 shall pertain to reimbursement obligations relating to drawn letters of credit that were issued or outstanding pursuant to the Senior Credit Agreement (and including any obligations with respect to letters of credit issued or outstanding pursuant thereto but which are undrawn), (b) the M/I Financial Corp. Loan Agreement up to an aggregate principal Indebtedness thereunder not exceeding $40,000,000.00, (c) Indebtedness incurred solely with respect to Construction Bonds or completion guaranties delivered to municipalities or other political subdivisions to secure the Bor rower's performance of obligations related to lot improvements and subdivision development and completion and which are not obligations for borrowed money, and (d) any other Indebtedness for money borrowed by the Borrower, before or after the date of the Notes, created or evidenced by notes, bonds, debentures or other similar instruments or by loan agreement under which the Indebtedness is reflected in a loan account (but excluding any trade debt) in an aggregate principal amount not to exceed $25,000,000.00, and amendments, renewals, modifications, extensions and refundings (but specifically excluding any increases over the limits set forth above) of any such Indebtedness; provided, however, that in no event shall any of such Indebtedness be considered as "Senior Debt" hereunder if in any instrument or instruments evidencing or securing the same or pursuant to which the same are outstanding, or under any such amendment, renewal, extension or refunding, it is provided that such Indebtedness is not super ior in right of payment to the Notes or that such Indebtedness isparipassu with or junior in right of payment to the Notes. Senior Debt shall not include any Indebtedness that is payable to any Subsidiary or Affiliate of the Borrower, any director, officer or employee of any thereof, or pursuant to or in connection with any Investments in Joint Ventures; provided that Senior Debt may, subject to the limits set forth above, include Indebtedness of the Borrower to lenders that have extended credit or financing to joint ventures, partnerships or other permitted entities in which the Borrower has made Investments in Joint Ventures as permitted by this Agreement (including Indebtedness with respect to Guaranteed HNB Joint Ventures Letters of Credit).”
(e)By deleting in its entirety §6.4(c) of the Original Credit Agreement, appearing on page 32 thereof, and inserting in lieu thereof the following §6.4(c):
“(c) concurrently with the delivery of each financial statement referred to in §6.4(a) above and each financial statement referred to in §6.4(b) above, a certificate of the principal financial or accounting officer of the Borrower in form and substance reasonably satisfactory to the Agent and stated to have been made after due examination by such officer (i) stating that, to the best of such officer’s knowledge, the Borrower and each of its Subsidiaries during such period has observed or performed in all material respects all of its
covenants and other agreements, and satisfied every condition contained in this Agreement and the Notes to be observed, performed or satisfied by it, and that such officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate, (ii) showing in detail the calculations supporting such statement in respect of the covenants set forth in §6.12, §7.1, §7.3, §7.4, §7.5, §7.6 and §7.7, and (iii) stating that no Change of Control has occurred; and”
(f)By deleting in its entirety §7.1(g) of the Original Credit Agreement, appearing on page 36 thereof, and inserting in lieu thereof the following §7.1(g):
“(g) Other Indebtedness of the Borrower and its Subsidiaries for borrowed money from an institutional lender or in connection with a public or privately placed debt offering created or evidenced by notes, bonds, indentures or similar agreements or by loan agreement under which the Indebtedness is reflected in a loan account (it being agreed that such Indebtedness may not include trade debt);provided that neither the Borrower nor any of its Subsidiaries shall incur any such Indebtedness pursuant to this §7.1(g) (such permitted Indebtedness is he reafter referred to as "Additional Permitted Senior Debt") unless the ratio of the Borrower's EBITDA to Consolidated Interest Incurred for the previous four (4) fiscal quarters of the Borrower is greater than 2.0 to 1.0. For the purposes of performing such test, Consolidated Interest Incurred shall include the interest expense that would have been incurred on such Indebtedness on a pro forma basis for a four (4) quarter period. In no event shall any of such Indebtedness be considered as Additional Permitted Senior Debt hereunder if in any instrument or instruments evidencing or securing the same or pursuant to which the same are outstanding, or under any amendment, renewal, extension or refunding thereof, it is provided that such Indebtedness is not superior in right of payment to the Notes or that such Indebtedness ispari passu with or junior in right of payment to the Notes, it being the intent of the parties that no other "subordinated debt" shall be permitt ed except as incurred pursuant to §7.1(h) hereof. Notwithstanding the foregoing, neither the Borrower nor any of its Subsidiaries shall incur any such Indebtedness pursuant to this §7.1(g) unless the Borrower shall have provided the Agent a statement certified by the principal financial or accounting officer of the Borrower that no Default or Event of Default exists or will exist after the incurrence of such Indebtedness, which statement shall include a calculation demonstrating that theBorrower will be in compliance with the foregoing ratio after giving effect to such incurrence. Additional Permitted Senior Debt shall not include any Indebtedness that is payable to any Subsidiary or Affiliate of the Borrower, any director, officer or employee of any thereof, or pursuant to or in connection with any Investments in Joint Ventures;”;
(g)By adding in its entirety the following §7.1(h) to the Original Credit Agreement:
“(h) Other Indebtedness of the Borrower in a principal amount not to exceed $300,000,000.00 (such permitted Indebtedness is hereafter referred to as "Permitted Subordinate Debt") which Permitted Subordinate Debt is pari passu with or junior in right of payment to the Notes and is evidenced by agreements that are satisfactory to Agent in its reasonable discretion containing subordination and standstill provisions or provisions which provide that such Permitted Subordinate Debt is pari passu with respect to the Notes. In no event shall any of such Indebtedness be considered as Permitted Subordinate Debt hereunder if in any instrument or instruments evidencing or securing the same or pursuant to which the same are outstanding, or under any amendment, renewal, extension or refunding thereof, it is provided that such Indebtedness is superior in right of payment to the Notes or that such Indebtedness is not pari passu with or junior in right of payment to the Notes. Notwithstanding the foregoing, neither the Borrower nor any of its Subsidiaries shall incur any such Indebtedness pursuant to this §7.1(h) unless the Borrower shall have provided the Agent a statement certified by the principal financial or accounting officer of the Borrower that no Default or Event of Default exists or will exist after the incurrence of such Indebtedness, which statement shall include a calculation demonstrating that the aggregate principal amount of all Permitted Subordinate Debt outstanding will not exceed $300,000,000.00 after giving effect to such incurrence; and”;
(h) By renumbering the existing §7.1(h) of the Original Credit Agreement so that the existing §7.1(h) of the Original Credit Agreement is now §7.1(i) of the Original Credit Agreement;
(i)By deleting in its entirety §7.3(a)(iii) of the Original Credit Agreement, appearing on page 38 thereof, and inserting in lieu thereof the following §7.3(a)(iii):
“(iii) Contingent Obligations related to Indebtedness of joint ventures in which the Borrower has made Investments in Joint Ventures and in which the Borrower is a partner, member or shareholder (including obligations with respect to the Guaranteed HNB Joint Venture Letters of Credit); provided, however, that the aggregate amount of such Contingent Obligations at any one time outstanding pursuant to this §7.3(a)(iii) shall not exceed (A) $50,000,000 less (B) the aggregate amount of Permitted Indebtedness;”
(j) By deleting the figure “$4,000,000.00” appearing in the second line of §7.3(a)(iv) of the Original Credit Agreement, appearing on page 38 thereof, and inserting in lieu thereof the figure “$10,000,000.00”;
(k)By adding in its entirety the following §7.12 to the Original Credit Agreement:
“Restriction on Prepayment of Indebtedness. Without the prior written consent of the Majority Holders, which consent may be withheld by the Majority Holders in their sole and absolute discretion, the Borrower shall not (a) modify, waive or amend the documents relating to any Permitted Subordinate Debt, (b) prepay, purchase, amortize, retire, redeem, defease or otherwise acquire any Permitted Subordinate Debt that is subordinate to the Notes, (c) prepay, purchase, amortize, retire, redeem, defease or otherwise acquire any Permitted Subordinate Debt that is pari passu with the Notes except to the extent that Borrower shall prepay, purchase, amortize, retire, redeem, defease or otherwise acquire the Notes on a pro rata basis, (d) make any payments on any Permitted Subordinate Debt that is subordinate to the Notes, except for p ayments of interest due and payable on the Permitted Subordinate Debt, so long as no Event of Default exists hereunder or would result from such payment of interest or other payment and so long as the Lenders have been paid any amounts due and payable in connection with the Loans or (e) make any payments on any Permitted Subordinate Debt that is pari passu with the Notes, except to the extent that the Lenders have been paid any amounts due and payable in connection with the Loans on a pro rata basis.”
(l) By adding the word “or” to the end of the existing §9.1(n) of the Original Credit Agreement, appearing on page 44 thereof.
(m) By adding in its entirety the following §9.1(o) to the Original Credit
Agreement:
“any subordination agreement that evidences any Permitted Subordinate Debt (i) ceases to be the legal, valid and binding agreement of any Person party thereto, enforceable against such Person in accordance with its terms or a payment is made by Borrower in violation of any provision thereof, or (ii) shall be terminated, invalidated or set aside, or be declared ineffective or inoperative or the Indebtedness related thereto is in any way not fully subordinate to all of Borrower’s Indebtedness and other liabilities to Lenders and Agent under this Agreement and the Notes and to Borrower’s obligations, if any, as a guarantor or otherwise of the Indebtedness and other liabilities of M/I Financial Corp. (including without limitation the obligations with respect to the M/I Financial Corp. Loan Agreement);”
