Exhibit 10.1
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (herein called
this "Amendment") made as of May 2, 2002 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
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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 Amendment.
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 First Amendment to Credit
Agreement.
"AMENDMENT DOCUMENTS" means, collectively, this
Amendment and the Renewal Note.
033544 000150 DALLAS 1425969.2 FIRST AMENDMENT TO CREDIT AGREEMENT
"CREDIT AGREEMENT" means the Original Credit Agreement as
amended hereby.
"RENEWAL NOTE" means a promissory note in the form attached
hereto as Exhibit A.
ARTICLE II.
Amendments to Original Credit Agreement
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Section 2.1. DEFINITIONS.
(a) Paragraph A of the Recitals in the Original Credit
Agreement is hereby amended in its entirety to read as follows:
"A. Borrowers, Bank One, NA, as agent, and certain
financial institutions are parties to a certain Credit Agreement
effective as of March 6, 2002 (together with any amendments and
restatements thereto and any agreement under which the Indebtedness
arising thereunder is refinanced or replaced, the "M/I Homes Loan
Agreement")."
(b) 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 the date hereof through and including May 1, 2003, which is
364 days after May 2, 2002, 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. FINANCIAL STATEMENTS. Subsection (b) of Section 5.1 of the
Original Credit Agreement is hereby amended to delete the references to "M/I
Homes" and to replace the "." at the end thereof with "; and". Section 5.1 of
the Original Credit Agreement is hereby further amended to add a new subsection
(c) thereto immediately following subsection (b) thereof to read as follows:
"(c) as soon as available, but in any event not later than
45 days after the end of each fiscal quarter of M/I Homes, the
unaudited balance sheet of each of M/I Homes as at the end of each such
fiscal quarter and the related unaudited statements of income and
retained earnings of M/I Homes for such fiscal quarter and the portion
of the fiscal year through such date setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer of M/I Homes as being fairly stated in all material
respects."
The last sentence of Section 5.1 of the Original Credit Agreement is hereby
amended to replace the reference to "subparagraph (b)" with "subparagraphs (b)
and (c)".
033544 000150 DALLAS 1425969.2 2 FIRST AMENDMENT TO CREDIT AGREEMENT
Section 2.3. CERTIFICATES; OTHER INFORMATION. Subsection (a) of Section
5.2 of the Original Credit Agreement is hereby amended to replace the reference
to "and each financial statement referred to in subsection 5.1(b) above" with ",
each financial statement referred to in subsection 5.1(b) above, and each
financial statement referred to in subsection 5.1(c) above".
Section 2.4. INCORPORATION OF COVENANTS FROM M/I HOMES LOAN AGREEMENT.
Section 6.8 of the Original Credit Agreement is hereby amended in its entirety
to read as follows:
"6.8 INCORPORATION OF COVENANTS FROM M/I HOMES LOAN
AGREEMENT. Without limitation of any thing contained herein, each of
the covenants set forth in Sections 6.11, 6.12, 6.13, 7.5 and 7.13 of
the M/I Homes Loan Agreement, as in effect on March 6, 2002, and the
related defined terms are incorporated herein by this reference and
shall be treated for all purposes as being included in this Agreement;
provided that any modification of any such covenant pursuant to the M/I
Homes Loan Agreement which causes it to be more favorable to Bank shall
automatically be incorporated herein. No other modification of such
covenants shall be incorporated herein unless the Bank agrees thereto
in writing. Any violation or breach of any such covenant shall be a
violation or breach of this Agreement and the Bank shall have all
rights and remedies with respect thereto that are available hereunder,
under the Note and under applicable law."
Section 2.5. 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
033544 000150 DALLAS 1425969.2 3 FIRST AMENDMENT TO CREDIT AGREEMENT
signatures of the officers so authorized which were delivered to Bank
are true and correct, 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, and
(d) each other document to be executed and delivered by
Borrowers pursuant hereto or thereto.
ARTICLE IV.
Representations and Warranties
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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 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
033544 000150 DALLAS 1425969.2 4 FIRST AMENDMENT TO CREDIT AGREEMENT
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 Credit Agreement or any other Loan Document nor constitute a waiver of any
provision of the 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 Credit Agreement to Bank shall be deemed to constitute representations
and warranties by, or agreements and covenants of, Borrowers under this
Amendment and under the Credit Agreement.
Section 5.3. LOAN DOCUMENTS. This Amendment and the other Amendment
Documents are each a Loan Document, and all provisions in the 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.
033544 000150 DALLAS 1425969.2 5 FIRST AMENDMENT TO CREDIT AGREEMENT
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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033544 000150 DALLAS 1425969.2 6 FIRST AMENDMENT TO CREDIT AGREEMENT
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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Randy Reid Phillip G. Creek
Vice President Chief Financial Officer
M/I SCHOTTENSTEIN HOMES, INC.
By:
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Robert H. Schottenstein
President and Assistant Secretary
FIRST AMENDMENT TO CREDIT AGREEMENT
EXHIBIT A
RENEWAL PROMISSORY NOTE
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REVOLVING LOAN PROMISSORY NOTE
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$30,000,000 Dallas, Texas May 2, 2002
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, 8333 Douglas Avenue, Dallas, Texas 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 of even date herewith 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 3, 2001, executed by
Borrowers payable to the order of Bank in the stated principal amount of
$30,000,000.
On the fifteenth (15(th)) day of each calendar month, beginning on May
15, 2002, 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 May 1, 2003.
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 one and
six-tenths percent (1.60%). Notwithstanding the foregoing provisions of this
paragraph, if an Event of Default has
033544 000150 DALLAS 1425969.2 1 FIRST AMENDMENT TO CREDIT AGREEMENT
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
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 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.
033544 000150 DALLAS 1425969.2 2 FIRST AMENDMENT TO CREDIT AGREEMENT
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:
--------------------------------- ----------------------------------
Phillip G. Creek Robert H. Schottenstein
Chief Financial Officer President and Assistant Secretary
033544 000150 DALLAS 1425969.2 3 FIRST AMENDMENT TO CREDIT AGREEMENT