SECOND AMENDED AND RESTATED CREDIT AGREEMENT effective as of October 6, 2006 by and among M/I HOMES, INC., as Borrower and the Lenders Party Hereto and JPMORGAN CHASE BANK, N.A. as Agent for the Lenders and WACHOVIA BANK, NATIONAL ASSOCIATION as...
Exhibit
10
EXECUTION
VERSION
SECOND
AMENDED AND RESTATED
effective
as of October 6, 2006
by
and
among
M/I
HOMES, INC.,
as
Borrower
and
the
Lenders Party Hereto
and
JPMORGAN
CHASE BANK, N.A.
as
Agent
for the Lenders
and
WACHOVIA
BANK, NATIONAL ASSOCIATION
as
Syndication Agent
and
THE
HUNTINGTON NATIONAL BANK
KEYBANK
NATIONAL ASSOCIATION
CHARTER
ONE BANK, N.A.
SUNTRUST
BANK
AMSOUTH
BANK
BANK
OF
MONTREAL
GUARANTY
BANK
NATIONAL
CITY BANK
and
as
Co-Agents
with
X.X.
XXXXXX SECURITIES INC.,
as
Lead
Arranger and Sole Bookrunner
TABLE
OF CONTENTS
SECTION
1: DEFINITIONS
1.1Defined
Terms
1.2Other
Definitional Provisions.
SECTION
2:AMOUNT
AND TERMS OF COMMITMENTS, REVOLVING CREDIT LOANS, SWINGLINE LOANS AND FACILITY
L/CS
2.1Commitments.
2.2Notes
2.3Procedure
for Borrowing.
2.4Commitment
Fee
2.5Interest;
Default Interest.
2.6Termination,
Reduction or Increase of Aggregate Commitment.
2.7Maturity
Date of Commitment; Extension.
2.8Computation
of Interest and Fees
2.9Increased
Costs
2.10Use
of
Proceeds.
2.11Payments;
Pro Rata Treatment.
2.12Swingline
Loans.
2.13The
Facility L/Cs
2.14Designation
or Resignation of LC Issuer.
2.15Issuance
of Facility L/Cs.
2.16Facility
L/C Participations.
2.17Payments
2.18Facility
L/C Fees
2.19Letter
of
Credit Reserves
2.20Further
Assurances
2.21Obligations
Absolute.
2.22LC
Issuer
Reporting Requirements
2.23Indemnification;
Nature of LC Issuer’s Duties.
SECTION
3:GENERAL
PROVISIONS APPLICABLE TO LOANS
3.1Conversion/Continuation
Options
3.2Inability
to Determine Interest Rate
3.3Availability
of Eurodollar Rate Loans
3.4Requirements
of Law
3.5Indemnity
3.6Taxes.
3.7Lender
Statements; Survival of Indemnity
3.8Telephonic
Notices
3.9Non-Receipt
of Funds by Agent
3.10Replacement
of Certain Lenders
SECTION
4:REPRESENTATIONS
AND WARRANTIES
4.1Financial
Statements
4.2Existence;
Compliance with Law
4.3Power;
Authorization; Enforceable Obligations
4.4No
Legal
Bar
4.5No
Material Litigation
4.6Regulation
U
4.7Investment
Company Act
4.8ERISA
4.9Disclosure
4.10Subsidiary
Information
4.11M/I
Ancillary Businesses Information
4.12Schedules
4.13Environment
4.14Force
Majeure Events
4.15Other
Agreements
4.16No
Defaults on Outstanding Judgments or Orders
4.17Ownership
and Liens
4.18Operation
of Business
4.19Taxes
SECTION
5:CONDITIONS
PRECEDENT
5.1Conditions
to Initial Loan(s)
5.2Conditions
to All Loans
SECTION
6:AFFIRMATIVE
COVENANTS
6.1Financial
Statements
6.2Certificates;
Other Information
6.3Borrowing
Base Certificate
6.4Compliance
with Borrowing Base Requirements
6.5Intentionally
Omitted
6.6Payment
of Obligations
6.7Maintenance
of Existence; Compliance
6.8Maintenance
of Property, Insurance
6.9Inspection
of Property; Books and Records; Discussions
6.10Notices
6.11Maintenance
of Consolidated Tangible Net Worth
6.12Maintenance
of Debt to Worth
6.13Maintenance
of Interest Coverage Ratio
6.14Guaranties
of Wholly-Owned M/I Ancillary Businesses
6.15Subsidiary
Guarantors
6.16Environment
SECTION
7:NEGATIVE
COVENANTS
7.1Limitation
on Secured Indebtedness
7.2Limitation
on Liens
7.3Limitation
on Fundamental Changes
7.4Limitation
on Acquisitions
7.5Land
Inventory
7.6Limitation
on Investments
7.7Transactions
with Affiliates and Officers.
7.8Sale
and
Leaseback
7.9Limitation
on Payments of Subordinated Indebtedness and Modification of Subordination
Agreements.
7.10Sale
of
Guarantor Securities
7.11Intentionally
Omitted.
7.12Limitation
on Negative Pledges
7.13Housing
Inventory
SECTION
8:CASH
COLLATERAL
8.1Facility
L/C Collateral Account
8.2Event
of
Default under Paragraph (5) of Section 9
8.3Other
Events of Default
8.4Cure;
Termination.
SECTION
9:DEFAULTS,
EVENTS OF DEFAULT; DISTRIBUTION OF PROCEEDS AFTER EVENT OF DEFAULT
SECTION
10:THE
AGENT
10.1Appointment
10.2Delegation
of Duties
10.3Exculpatory
Provisions
10.4Reliance
by Agent
10.5Notice
of
Default
10.6Non-Reliance
on Agent and Other Lenders
10.7Indemnification
10.8Agent
in
Its Individual Capacity
10.9Delegation
to Affiliates
10.10Successor
Agent
10.11Syndication
Agent, Documentation Agent and Co-Agent
SECTION
11:MISCELLANEOUS
11.1Amendments
and Waivers
11.2Notices
11.3No
Waiver; Cumulative Remedies
11.4Participants.
11.5Survival
of Representations and Warranties
11.6Payment
of Expenses and Taxes
11.7Successors
and Assigns; Assignment.
11.8Adjustments;
Set-off.
11.9WAIVER
OF JURY TRIAL
11.10Confidentiality
11.11Counterparts;
Effective Date
11.12Governing
Law
11.13Integration
11.14Indemnity
11.15Severability
of Provisions
11.16Submission
to Jurisdiction
11.17Governmental
Regulation
11.18No
Fiduciary Duty
11.19Headings
11.20FIN
46
11.21USA
Patriot Act
SCHEDULES
1
-- Commitments
of Lenders
2
-- Existing
L/Cs
3
-- Principal
Places of Business, etc. of All Subsidiaries
4
-- Principal
Places of Business, etc. of M/I Ancillary Businesses
EXHIBITS
A -- Form
of
Borrowing Base Certificate
B -- Form
of
Guaranty Agreement
C -- Form
of
Note
D -- Form
of
Commitment and Acceptance
E -- Form
of
Opinion of J. Xxxxxx Xxxxx, Esq.
F -- Form
of
Responsible Officer’s Certificate
G -- Form
of
Chief Financial Officer’s Certificate
H -- Form
of
Assignment Agreement
SECOND
AMENDED AND RESTATED CREDIT
AGREEMENT
THIS
SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”)
is
made to be effective as of October 6, 2006, by and among M/I HOMES, INC., an
Ohio corporation (“Borrower”),
the
Lenders party hereto and JPMORGAN CHASE BANK, N.A., as agent for Lenders
(“Agent”).
For
valuable consideration, the receipt of which is hereby acknowledged, Borrower,
Lenders and Agent, each intending to be legally bound, hereby recite and agree
as follows:
BACKGROUND
INFORMATION
A Borrower,
certain of the Lenders and Agent are parties to a certain Amended and Restated
Credit Agreement effective as of April 22, 2005 (the “Existing
Credit Agreement”).
B. Borrower,
Lenders and Agent wish to amend the Existing Credit Agreement as set forth
herein, among other things, (i) to add certain Lenders, (ii) to increase the
Aggregate Commitment and (iii) to modify certain covenants and other provisions
of the Existing Credit Agreement.
Accordingly,
Borrower, Lenders and Agent hereby agree as follows:
AGREEMENT
DEFINITIONS
Defined
Terms.
As used in this Agreement, the following terms have the following respective
meanings:
“ABR
Loan”
shall
mean any Loan when and to the extent that the interest rate thereon is
determined by reference to the Alternate Base Rate.
“Acquisition”
shall
mean any transaction, or any series of related transactions, consummated on
or
after the date of this Agreement, by which Borrower or any of its Subsidiaries
(i) acquires any going concern or all or substantially all of the assets of
any
firm, corporation or division thereof, whether through purchase of assets,
merger or otherwise or (ii) directly or indirectly acquires (in one transaction
or as the most recent transaction in a series of transactions) at least a
majority (in number of votes or by percentage of voting power) of the Common
Equity of another Person.
“Additional
Lender”
shall
have the meaning set forth in subsection 2.6(b)(i) hereof.
“Adjusted
Land Value”
means,
at any date, (i) the book value of all Land, less (ii) the sum of (a) the book
value of all Land under Contract and all Lots under Contract and (b) the lesser
of (1) the product of (x) the number of Housing Units with respect to which
Borrower and its Subsidiaries entered into bona fide contracts of sale with
Persons that are not Subsidiaries or Affiliates during the six-month period
ending on such date and (y) the average book value of all
Finished
Lots and Lots under Contract at such date and (2) twenty-five percent (25%)
of
Consolidated Tangible Net Worth at such date.
“Affected
Lender”
shall
have the meaning set forth in subsection 3.10 hereof.
“Affiliate”
shall
mean (a) any Person (other than a Subsidiary of Borrower) which, directly or
indirectly, controls, is controlled by or is under common control with Borrower
or (b) any Person who is a director, officer or key employee of Borrower, any
Subsidiary of Borrower or any Person described in clause (a) of this definition.
For purposes of this definition, “control” of a Person means the power, direct
or indirect, to vote twenty percent (20%) or more of the securities having
voting power for the election of directors of such Person or otherwise to direct
or cause the direction of the management and policies of such Person, whether
by
contract or otherwise.
“Agent”
shall
have the meaning set forth in the preamble hereof.
“Agent’s
Fee Letter”
shall
mean that certain fee letter from the Agent and Arranger to Borrower dated
and
accepted by Borrower on August 21, 2006.
“Aggregate
Commitment”
shall
mean the aggregate Commitments of all the Lenders, as reduced or increased
from
time to time pursuant to the terms of this Agreement. As of the date of this
Agreement, the Aggregate Commitment is $650,000,000.
“Agreement”
shall
mean this Agreement, as the same may be amended, supplemented or otherwise
modified from time to time.
“Alternate
Base Rate”
means,
for any day, a rate per annum equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c)
the Federal Funds Effective Rate in effect on such day plus ½ of 1%.
“Applicable
ABR Margin”
shall
mean, as at any date of determination, the margin indicated in subsection 2.5(b)
hereof as then applicable to ABR Loans (under subsection 2.5(a)
hereof).
“Applicable
Commitment Rate”
shall
mean, as at any date of determination, the rate per annum indicated in
subsection 2.5(b) hereof as then applicable in the determination of the
Commitment Fee (under subsection 2.4 hereof).
“Applicable
Eurodollar Margin”
shall
mean, as at any date of determination, the margin indicated in subsection 2.5(b)
hereof as then applicable to Eurodollar Rate Loans (under subsection 2.5(a)
hereof). The Applicable Eurodollar Margin is also the Applicable Facility L/C
Rate.
“Applicable
Facility L/C Rate”
shall
mean, as at any date of determination, the rate per annum indicated in
subsection 2.5(b) hereof as then applicable in the determination of the Facility
L/C Fee (under subsection 2.18 hereof). The Applicable Facility L/C Rate is
also
the Applicable Eurodollar Margin.
“Applicable
Margin(s)”
shall
mean the Applicable ABR Margin and/or the Applicable Eurodollar Margin, as
the
case may be.
“Arranger”
shall
mean X.X. Xxxxxx Securities Inc., as Lead Arranger and Sole
Bookrunner.
“Assessment
Rate”
means,
for any day, the annual assessment rate in effect on such day that is payable
by
a member of the Bank Insurance Fund classified as “well-capitalized” and within
supervisory subgroup “B” (or a comparable successor risk classification) within
the meaning of 12 C.F.R. Part 327 (or any successor provision) to the Federal
Deposit Insurance Corporation for insurance by such Corporation of time deposits
made in dollars at the offices of such member in the United States; provided
that if,
as a result of any change in any law, rule or regulation, it is no longer
possible to determine the Assessment Rate as aforesaid, then the Assessment
Rate
shall be such annual rate as shall be determined by the Agent to be
representative of the cost of such insurance to the Lenders.
“Bankruptcy
Code”
shall
mean Title 11, U.S.C. as amended from time to time.
“Base
CD Rate”
means
the sum of (a) the Three-Month Secondary CD Rate multiplied by the Statutory
Reserve Rate plus (b) the Assessment Rate.
“Board”
means
the Board of Governors of the Federal Reserve System of the United States of
America.
“Borrower”
shall
mean M/I Homes, Inc., an Ohio corporation.
“Borrowing
Base”
shall
mean, at any date of determination, an amount equal to the sum of the following
unencumbered assets of the Borrower and the Guarantors:
(i) one
hundred percent (100%) of the Receivables, plus
(ii) ninety
percent (90%) of the book value of Housing Units under Contract and Lots under
Contract, plus
(iii) seventy-five
percent (75%) of the book value of Speculative Housing Units, plus
(iv) seventy
percent (70%) of the book value of Finished Lots (subject to the limitation
set
forth below), plus
(v) fifty
percent (50%) of the book value of Lots under Development (subject to the
limitation set forth below), plus
(vi) thirty
percent (30%) of the book value of Unimproved Entitled Land (subject to the
limitation set forth below).
Notwithstanding
the foregoing, the Borrowing Base shall not include any amounts under clauses
(iv), (v) and (vi) above to the extent that the sum of such amounts exceeds
forty-five percent (45%) of the total Borrowing Base. The term “unencumbered”
means that such asset is not subject to any Lien (except for Liens permitted
under subsections 7.2(c) and (d) hereof).
“Borrowing
Base Certificate”
shall
mean a certificate in the form of Exhibit
A
hereto,
certified by a Responsible Officer of Borrower.
“Borrowing
Base
Indebtedness”
shall
mean at any date (i) the sum of (a) Consolidated Indebtedness and (b) an amount
equal to ten percent (10%) of the aggregate commitment under the M/I Financial
Corp. Loan Agreement, less
(ii) the
sum of (a) Secured Indebtedness, (b) Subordinated Indebtedness and (c)
Indebtedness under the M/I Financial Corp. Loan Agreement, all as of such
date.
“Borrowing
Date”
shall
mean any Business Day specified pursuant to (a) subsection 2.3 hereof as a
date
on which Lenders make a disbursement of the Revolving Credit Loans hereunder,
(b) subsection 2.12 hereof as a date on which Swingline Lender makes, at
Borrower’s request, a disbursement of the Swingline Loans hereunder, or (c)
subsection 2.13 hereof as a date on which an LC Issuer issues, at Borrower’s
request, a Facility L/C hereunder.
“Business
Day”
shall
mean (a) with respect to any borrowing, payment or rate selection of Eurodollar
Rate Loans, a day (other than a Saturday or Sunday) on which banks generally
are
open in Chicago and New York for the conduct of substantially all of their
commercial lending activities and on which dealings in United States dollars
are
carried on in the London interbank market and (b) for all other purposes, a
day
(other than a Saturday or Sunday) on which banks generally are open in Chicago
for the conduct of substantially all of their commercial lending
activities.
“Capital
Lease”
shall
mean all leases which have been or should be capitalized on the books of the
lessee in accordance with GAAP.
“Cash
Equivalents”
shall
mean (a) securities with maturities of 180 days or less from the date of
acquisition issued or fully guaranteed or insured by the United States
Government or any agency thereof, (b) certificates of deposit and bankers’
acceptances, each issued by a Lender hereunder and each with a maturity of
180
days or less from the date of acquisition, and (c) commercial paper of a
domestic issuer rated at least A-l by S&P or P-l by Xxxxx’x with a maturity
of not more than 180 days.
“Code”
shall
mean the Internal Revenue Code of 1986, as amended or superseded from time
to
time. Any reference to a specific provision of the Code shall be construed
to
include any comparable provision of the Code as hereafter amended or
superseded.
“Collateral
Shortfall Amount”
shall
have the meaning set forth in subsection 8.2 hereof.
“Commitment”
shall
have the meaning set forth in subsection 2.1(a) hereof.
“Commitment
Fee”
shall
have the meaning set forth in subsection 2.4 hereof.
“Commitment
and Acceptance”
shall
have the meaning set forth in subsection 2.6(b)(i) hereof.
“Commitment
Period”
shall
mean the period from and including the date hereof to the Maturity Date, or
such
earlier or later date as the Aggregate Commitment shall terminate as provided
herein.
“Common
Equity”
of
any
Person shall mean any and all shares, rights to purchase, warrants or options
(whether or not currently exercisable), participations, or other equivalents
of
or interests in (however designated) the equity (which includes, but is not
limited to, common stock, preferred stock and partnership and joint venture
interests) of such Person (excluding any debt securities convertible into,
or
exchangeable for, such equity) to the extent that the foregoing is entitled
to
(i) vote in the election of directors of such Person or (ii) if such Person
is
not a corporation, vote or otherwise participate in the selection of the
governing body, partners, managers or other persons that will control the
management and policies of such Person.
“Commonly
Controlled Entity”
shall
mean an entity, whether or not incorporated, which is under common control
with
Borrower within the meaning of Section 414(b) or (c) of the Code.
“Consolidated
Earnings”
shall
mean, at any date, the amount which would be set forth opposite the caption
“net
income” (or any like caption) in a consolidated statement of income or
operations of Borrower and Borrower’s Subsidiaries at such date prepared in
accordance with GAAP.
“Consolidated
Indebtedness”
shall
mean, at any date, the Indebtedness of the Borrower and its Subsidiaries
determined on a consolidated basis, including Borrower’s and its Subsidiaries’
pro rata share of Indebtedness of any Joint Venture in respect of which Borrower
or any of its Subsidiaries has made an Investment in Joint Venture, all
determined as of such date.
“Consolidated
Interest Expense”
shall
mean, for any period, interest expense on Indebtedness of Borrower and
Borrower’s Subsidiaries for such period, in each case determined on a
consolidated basis in accordance with GAAP.
“Consolidated
Interest Incurred”
shall
mean, for any rolling twelve (12)-month period, all interest incurred during
such period on outstanding Indebtedness of Borrower and Borrower’s Subsidiaries
irrespective of whether such interest is expensed or capitalized by Borrower
or
Borrower’s Subsidiaries, in each case determined on a consolidated
basis.
“Consolidated
Tangible Net Worth”
shall
mean, at any date, the consolidated stockholders equity of Borrower determined
in accordance with GAAP, less Intangible Assets, all determined as of such
date.
“Construction
Bonds”
shall
mean bonds issued by surety bond companies for the benefit of, and as required
by, municipalities or other political subdivisions to secure the performance
by
Borrower or any Subsidiary of its obligations relating to lot improvements
and
subdivision development and completion.
“Contingent
Obligation”
shall
mean, as to any Person, any reimbursement obligations (including, in the case
of
Borrower, the Reimbursement Obligations) of such Person
in
respect of drafts that may be drawn under Letters of Credit, any reimbursement
obligations of such Person in respect of surety bonds (including reimbursement
obligations in respect of Construction Bonds), and any obligation of such Person
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or
other obligations primarily to pay money (“primary obligations”) of any other
Person (the “primary obligor”) in any manner, whether directly or indirectly,
including without limitation any obligation of such Person, whether or not
contingent, (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation, or (ii)
to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the
obligee under any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (d) otherwise to assure or hold
harmless the obligee under such primary obligation against loss in respect
thereof; provided, however, that the term “Contingent Obligation” shall not
include (A) endorsements of instruments for deposit or collection in the
ordinary course of business, (B) Mortgage Loan Repurchase Obligations and (C)
obligations (including indemnity obligations) under land purchase contracts
entered into in the ordinary course of business.
“Contractual
Obligation”
shall
mean, as to any Person, any provision of any security issued by such Person
or
of any agreement, instrument or undertaking to which such Person is a party
or
by which it or any of its property is bound.
“Default”
shall
mean any of the events specified in Section 9 hereof, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
“Dollars”
and
“$”
shall mean dollars in lawful currency of the United States of
America.
“EBITDA”
shall
mean, for any rolling twelve (12)-month period, on a consolidated basis for
Borrower and its Subsidiaries, the sum of the amounts for such period of (a)
Consolidated Earnings, plus (b) charges against income for federal, state and
local income taxes, plus (c) Consolidated Interest Expense, plus (d)
depreciation and amortization expense, plus (e) extraordinary losses exclusive
of any such losses that are attributable to the write-down or other downward
revaluation of assets (including the establishment of reserves), minus (x)
interest income, minus (y) all extraordinary gains. EBITDA shall include net
income from Joint Ventures only to the extent distributed to Borrower or a
Subsidiary.
“Eligible
Assignee”
shall
mean (a) any Lender or any affiliate of a Lender and (b) any other commercial
bank, financial institution, institutional lender or “accredited investor” (as
defined in Regulation D promulgated under the Securities Act of 1933 by the
Securities and Exchange Commission) with capital of at least $500,000,000 and
with an office in the United States.
“Eligible
Mortgage Loan”
shall
mean at any date an original (not a rewritten or renewed) loan evidenced by
a
note and secured by a first mortgage on residential real property which (a)
M/I
Financial Corp. has made to enable a natural person or persons to purchase
a
home from Borrower, any Subsidiary of Borrower or another Person that is
substantially completed,
(b)
is
not more than sixty (60) days old as determined by the date of the note which
evidences such loan, and (c) is subject, or M/I Financial Corp. reasonably
believes is subject, to a Purchase Commitment; provided, however, that the
amount of Eligible Mortgage Loans consisting of loans made by M/I Financial
Corp. for the purchase of homes from any Person other than Borrower or any
Subsidiary of Borrower shall not, in the aggregate at any one time outstanding,
exceed the amount of $5,000,000.
“ERISA”
shall
mean the Employee Retirement Income Security Act of 1974, as amended from time
to time.
“Eurodollar
Rate”
means,
with respect to any Eurodollar Rate Loan for any Interest Period, an interest
rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal
to
(a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory
Reserve Rate.
“Eurodollar
Rate Loans”
shall
mean any Revolving Credit Loan when and to the extent that the interest rate
thereon is determined by reference to the Eurodollar Rate.
“Event
of Default”
shall
mean any of the events specified in Section 9 hereof, provided that any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
“Excluded
Taxes”
shall
mean, in the case of each Lender or applicable Lending Installation and Agent,
taxes imposed on its overall net income, and franchise taxes imposed on it,
by
(i) the jurisdiction under the laws of which such Lender, Lending Installation
or Agent is incorporated or organized, (ii) the jurisdiction in which Agent’s or
such Lender’s principal executive office or such Lender’s applicable Lending
Installation is located, or (iii) reason of any connection between the
jurisdiction imposing such tax and such Lender, applicable Lending Installation
or Agent other than a connection arising principally from such Lender having
executed, delivered or performed its obligations under, or received payment
under or enforced, this Agreement.
“Existing
Credit Agreement”
shall
have the meaning set forth in paragraph A of the “Background Information” on
page 1 of this Agreement.
“Existing
L/Cs”
shall
mean those certain Letters of Credit issued by JPMorgan Chase Bank (or by Bank
One, NA, prior to its merger with JPMorgan Chase Bank) or SunTrust for the
account of Borrower prior to the date hereof and listed on Schedule
2
hereto.
“Extension
Request”
shall
have the meaning set forth in subsection 2.7(b) hereof.
“Facility
Increase Request”
shall
have the meaning set forth in subsection 2.6(b)(i) hereof.
“Facility
L/C”
shall
mean an irrevocable standby Letter of Credit, including any extensions or
renewals, (a) issued by an LC Issuer pursuant to this Agreement or (b) in the
case of the Existing L/Cs, previously issued by JPMorgan Chase Bank (or by
Bank
One, NA prior to its merger with JPMorgan Chase Bank) or SunTrust and which
will
remain in place as of the first
Borrowing
Date, in which each Lender agrees to purchase a participation equal to its
Ratable Share and the LC Issuer agrees to make payments in Dollars for the
account of Borrower, on behalf of Borrower or any Subsidiary thereof in respect
of obligations of Borrower or such Subsidiary incurred pursuant to contracts
made or performances undertaken or to be undertaken or like matters relating
to
contracts to which Borrower or such Subsidiary is or proposes to become a party
in the ordinary course of Borrower’s or such Subsidiary’s business. The term
“Facility L/C” shall include the Existing LCs, but shall not include any Letters
of Credit issued (x) pursuant to the HNB Joint Ventures Letter of Credit
Agreement or (y) by any Lender other than pursuant to this Agreement or as
provided in clause (b) of this definition.
“Facility
L/C Application”
shall
have the meaning set forth in subsection 2.15(a) hereof and shall also include
each reimbursement agreement delivered to an LC Issuer prior to the date hereof
with respect to any Existing L/C.
“Facility
L/C Collateral Account”
shall
have the meaning set forth in subsection 8.1 hereof.
“Facility
L/C Fee”
shall
mean a fee, payable with respect to each Facility L/C issued by an LC Issuer,
in
an amount per annum equal to the product of the face amount of such Facility
L/C
and the Applicable Facility L/C Rate, in each case as such Applicable Facility
L/C Rate is determined on a daily basis during the period in respect of which
such fee is payable hereunder.
“Facility
L/C Obligations”
shall
mean, at any date, the sum of (i) the aggregate undrawn face amount of all
outstanding Facility L/Cs on such date, plus (ii) the aggregate unpaid amount
of
all Reimbursement Obligations on such date.
“Xxxxxx
Xxx”
shall
mean the Federal National Mortgage Association, or any successor
thereto.
“Federal
Funds Effective Rate”
means,
for any day, the weighted average (rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as published
on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if
such rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations
for
such day for such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
“Financial
Letter of Credit”
means
a
Letter of Credit that is not a Performance Letter of Credit.
“Finished
Lots”
shall
mean all Lots (excluding Lots under Contract) owned by Borrower or any Guarantor
with respect to which (i) development has been completed to such an extent
that
permits that allow use and construction, including building, sanitary sewer
and
water, could be obtained for a Housing Unit on each such Lot, and (ii) Start
of
Construction has not occurred. The book value of Finished Lots shall be
calculated in accordance with GAAP and shall include all associated costs
required to be capitalized under GAAP.
“Fitch”
shall
mean Fitch, Inc.
“GAAP”
shall
mean generally accepted accounting principles in the United States of America
as
in effect at the time any determination is made or financial statement is
required hereunder as promulgated by the American Institute of Certified Public
Accountants, the Accounting Principles Board, the Financial Accounting Standards
Board or any other body existing from time to time which is authorized to
establish or interpret such principles, applied on a consistent basis throughout
any applicable period, subject to any change required by a change in GAAP;
provided, however, that if any change in generally accepted accounting
principles from those applied in preparing the financial statements referred
to
in subsection 4.1 hereof affects the calculation of any financial covenant
contained herein, Borrower, Lenders and Agent hereby agree to amend the
Agreement to the effect that each such financial covenant is not more or less
restrictive than such covenant as in effect on the date hereof using generally
accepted accounting principles consistent with those reflected in such financial
statements.
“Governmental
Authority”
shall
mean any nation or government, any state or other political subdivision thereof
and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
“Guarantor”
shall
mean each of Borrower’s Subsidiaries listed on Schedule 3 hereto (except as
otherwise disclosed on Schedule 3) and each M/I Ancillary Business and
Subsidiary of Borrower which becomes a “Guarantor” pursuant to a Supplemental
Guaranty as provided in subsections 6.14 and 6.15 hereof.
“Guaranty
Agreement”
shall
mean the Guaranty Agreement substantially in the form of Exhibit
B
attached
to this Agreement, executed by one or more Guarantors in favor of Agent (for
the
benefit of the Lenders), as the same shall be modified and supplemented and
in
effect from time to time.
“HNB”
shall
mean The Huntington National Bank.
“HNB
Joint Ventures Letter of Credit Agreement”
shall
mean the Agreement to Issue Letters of Credit dated as of June 8, 1994, between
Borrower and HNB, as heretofore or hereafter from time to time amended, with
respect to standby Letters of Credit issued or to be issued by HNB for the
account of certain joint ventures of which Borrower is a partner.
“Housing
Unit”
shall
mean a detached or attached (including townhouse condominium or condominium)
single-family house (but excluding mobile homes) owned by Borrower or a
Guarantor (i) which is completed or for which there has been a Start of
Construction and (ii) which has been or is being constructed on Land which
immediately prior to the Start of Construction constituted a Lot hereunder.
The
book value of Housing Units shall be calculated in accordance with GAAP and
shall include all associated costs (including the applicable Lot costs) required
to be capitalized under GAAP, provided that the cost of obtaining commitments
for financing terms to be provided to the buyers of Housing Units shall be
excluded.
“Housing
Unit Closing”
shall
mean a closing of the sale of a Housing Unit by the Borrower or a Guarantor
to a
bona fide purchaser for value that is not a Subsidiary or
Affiliate.
“Housing
Unit under Contract”
shall
mean, at any date, a Housing Unit owned by the Borrower or a Guarantor as to
which the Borrower or such Guarantor has entered into a bona fide contract
of
sale (a) in a form customarily employed by the Borrower or such Guarantor,
(b)
not more than fifteen (15) months prior to such date, (c) with a Person who
is
not a Subsidiary or Affiliate, (d) which provides for closing on or before
the
later of thirty (30) days after completion of such Housing Unit or sixty (60)
days after the date of such Contract, and (e) under which no defaults then
exist; provided, however, that in the case of any Housing Unit the purchase
of
which is to be financed in whole or in part by a loan insured by the Federal
Housing Administration or guaranteed by the Veterans Administration, the
required minimum down payment shall be the amount (if any) required under the
rules of the relevant agency. A Housing Unit shall not constitute a Housing
Unit
under Contract, at any date of determination, if (i) such Housing Unit is not
completed and (ii) the Start of Construction thereof occurred more than nine
(9)
months prior to such date.
“Increase
Date”
shall
have the meaning set forth in subsection 2.6(b)(ii) hereof.
“Indebtedness”
shall
mean, without duplication, with respect to any Person (1) indebtedness or
liability for borrowed money, including, without limitation, subordinated
indebtedness (other than trade accounts payable and accruals incurred in the
ordinary course of business); (2) obligations evidenced by debentures, notes,
bonds, or other similar instruments; (3) obligations for the deferred purchase
price of property (including, without limitation, seller financing of any
inventory) or services, provided, however, that “Indebtedness” shall not include
obligations with respect to options to purchase real property that have not
been
exercised; (4) obligations as lessee under Capital Leases to the extent that
the
same would, in accordance with GAAP, appear as liabilities in such Person’s
consolidated balance sheet; (5) current liabilities in respect of unfunded
vested benefits under Plans and incurred withdrawal liability under any
Multiemployer Plan; (6) obligations under acceptance facilities; (7) all
Contingent Obligations, provided, however, that “Indebtedness” shall not include
reimbursement obligations in respect of Performance Letters of Credit or
guaranties of performance obligations (such as bid or performance surety bonds)
except to the extent that any such reimbursement obligations or guaranties
of
performance obligations have been drawn or called upon; (8) obligations secured
by any Liens on any property of such Person, whether or not the obligations
have
been assumed; and (9) net liabilities under interest rate swap, exchange or
cap
agreements (valued as the termination value thereof, computed in accordance
with
a method approved by the International Swaps and Derivatives Association and
agreed to by such Person in the applicable agreement).
“Intangible
Assets”
shall
mean, at any time, the amount (to the extent reflected in determining
consolidated stockholders equity of Borrower) of all unamortized debt discount
and expense, unamortized deferred charges, good will, patents, trademarks,
service marks, trade names, copyrights and all other items which would be
treated as intangibles on a consolidated balance sheet of Borrower prepared
in
accordance with GAAP.
“Interest
Coverage Ratio”
shall
mean, for any period, the ratio of (a) EBITDA to (b) Consolidated Interest
Incurred.
“Interest
Payment Date”
shall
mean, (a) with respect to any ABR Loan (whether a Revolving Credit Loan or
a
Swingline Loan), the first day of each calendar month, commencing
on
the
first of such days to occur after the first Borrowing Date, (b) with respect
to
any Eurodollar Rate Loan having an Interest Period of three months or less,
the
last day of such Interest Period, and (c) with respect to any Eurodollar Rate
Loan having an Interest Period longer than three months, (x) each day which
is
three months, or a whole multiple thereof, after the first day of such Interest
Period, and (y) the last day of such Interest Period.
“Interest
Period”
shall
mean with respect to any Eurodollar Rate Loan:
(i) initially,
the period commencing on the Borrowing Date or conversion date, as the case
may
be, with respect to such Eurodollar Rate Loan and ending one, two, three or
six
months thereafter, as selected by Borrower in Borrower’s Notice of
Conversion/Continuation, as the case may be, given with respect thereto;
and
(ii) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Rate Loan and ending one, two, three or six months
thereafter, as selected by Borrower by irrevocable notice to the Agent not
less
than three Business Days prior to the last day of the then current Interest
Period with respect thereto;
provided
that all of the foregoing provisions relating to Interest Periods are subject
to
the following:
(1) if
any
Interest Period would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
the
result of such extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on the immediately
preceding Business Day;
(2) any
Interest Period that begins on the last Business Day of a calendar month (or
on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day of a
calendar month; and
(3) no
Interest Period shall be for less than one month, and Borrower shall not select
an Interest Period for a Eurodollar Rate Loan as a Revolving Credit Loan if
the
last day of such Interest Period would be after the last day of the Commitment
Period.
“Interest
Rate Contract”
shall
mean any interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement, interest rate insurance arrangement, or any other
agreement or arrangement designed to provide protection against fluctuation
in
interest rates.
“Inventory
Valuation Date”
shall
mean (a) the last day of the most recent fiscal month of Borrower with respect
to which the Borrower is required to have delivered a Borrowing Base Certificate
pursuant to subsection 6.3 hereof or (b) if Borrower elects, pursuant to
subsection 6.4, to deliver a Borrowing Base Certificate as of a later date,
such
later date.
“Investments”
shall
have the meaning set forth in subsection 7.6 hereof.
“Investment
in Joint Venture”
shall
mean any Investment in a Joint Venture that is formed for the purpose of
acquiring land, the majority of which land is zoned residential and
is
to
be
developed into residential lots for attached or detached single family housing
(including a townhouse condominium building or condominium building), and/or
performing such development. The value of Investments in Joint Ventures shall
be
calculated in accordance with GAAP.
“JPMorgan
Chase Bank”
means
JPMorgan Chase Bank, N.A.
“Joint
Venture”
shall
mean any Person (other than a Subsidiary) in which the Borrower or a Subsidiary
holds any stock, partnership interest, joint venture interest, limited liability
company interest or other equity interest.
“Land”
shall
mean land owned by Borrower or a Guarantor, which land is being developed or
is
held for future development or sale.
“Land
Under Contract”
means
Land (other than Lots) owned by Borrower or a Guarantor as to which Borrower
or
such Guarantor has entered into a bona fide contract of sale with a Person
who
is not a Subsidiary or Affiliate.
“LC
Issuer”
shall
mean JPMorgan Chase Bank (or any Subsidiary or affiliate of JPMorgan Chase
Bank
designated by JPMorgan Chase Bank or Bank One, NA, prior to its merger with
JPMorgan Chase Bank), SunTrust and Wachovia in their capacities as issuers
of
Facility L/Cs hereunder, including JPMorgan Chase Bank and SunTrust in their
capacity as an issuer of those Existing L/Cs identified in Schedule
2
hereto
as having been issued by JPMorgan Chase Bank and SunTrust, and any other Lender
that may from time to time be designated as an LC Issuer in accordance with
the
provisions of subsection 2.14 hereof.
“Lenders”
shall
have the meaning set forth in the preamble hereof.
“Lending
Installation”
shall
mean with respect to a Lender or the Agent, the office, branch, subsidiary
or
affiliate of such Lender or the Agent identified on the signature pages hereof
or otherwise selected by such Lender or the Agent pursuant to subsection 2.3
hereof.
“Letter
of Credit”
of
a
Person shall mean a letter of credit or similar instrument which is issued
by a
financial institution upon the application of such Person or upon which such
Person is an account party or for which such Person is in any way
liable.
“Level”
shall
mean the level of the Senior Debt Rating, Applicable Margin or Applicable
Commitment Rate (as applicable) as designated in the Table set forth in
subsection 2.5(b) hereof. The five Levels in such Table are identified as Levels
I through V, and Level I shall constitute the highest Level and Level V shall
constitute the lowest Level.
“LIBO
Rate”
means,
with respect to any Eurodollar Rate Loan for any Interest Period, the rate
appearing on Telerate Page 3750 (sometimes referred to as Moneyline Telerate
Page 3750 and formerly known as Page 3750 of the Dow Xxxxx Market Service)
or on
any successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those
currently provided on such page of such service, as determined by the Agent
from
time to time for purposes of providing quotations of interest
rates
applicable to dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a maturity comparable
to
such Interest Period. In the event that such rate is not available at such
time
for any reason, then the “LIBO
Rate”
with
respect to such Eurodollar Rate Loan for such Interest Period shall be the
rate
at which dollar deposits of $5,000,000 and for a maturity comparable to such
Interest Period are offered by the principal London office of the Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
“Lien”
shall
mean any mortgage, deed of trust, pledge, hypothecation, assignment, deposit
arrangement, charge, encumbrance, lien (statutory or other), preference,
priority or other security agreement or similar preferential arrangement of
any
kind or nature whatsoever (including without limitation any conditional sale
or
other title retention agreement, any financing lease having substantially the
same economic effect as any of the foregoing, and the authorized filing by
or
against a Person of any financing statement as debtor under the Uniform
Commercial Code or comparable law of any jurisdiction). A restriction, covenant,
easement, right of way, or similar encumbrance affecting any interest in real
property owned by Borrower and which does not secure an obligation to pay money
is not a Lien.
“Loan
Documents”
shall
mean this Agreement, the Notes, the Guaranty Agreements and the Facility L/C
Applications and all other documents (if any) from time to time executed and
delivered by Borrower or a Guarantor that evidence, secure or guaranty any
of
the Obligations.
“Loans”
shall
mean the Revolving Credit Loans and the Swingline Loans.
“Lot
Closing”
shall
mean the closing of the sale of a Lot under Contract by Borrower or a Guarantor
to a bona fide purchaser for value that is not a Subsidiary or
Affiliate.
“Lots”
shall
mean all Land owned by Borrower or a Guarantor which is zoned, by the applicable
Governmental Authority having jurisdiction, for construction and use as Housing
Units and with respect to which Borrower or such Guarantor has obtained all
necessary approvals for its subdivision for construction thereon of Housing
Units; provided, however, that the term “Lots” shall not include any Land upon
which the Start of Construction has occurred. The value of Lots shall be
calculated in accordance with GAAP and shall include all associated costs
required to be capitalized in accordance with GAAP.
“Lots
under Contract”
shall
mean all Lots owned by Borrower or a Guarantor as to which Borrower or such
Guarantor has entered into a bona fide contract of sale with a Person who is
not
a Subsidiary or Affiliate.
“Lots
under Development”
shall
mean all Lots owned by Borrower or a Guarantor with respect to which
construction of streets or other subdivision improvements has commenced but
which are not Finished Lots or Lots under Contract. The value of Lots under
Development shall be calculated in accordance with GAAP and shall include all
associated costs required to be capitalized in accordance with
GAAP.
“Mandatory
Borrowing”
shall
have the meaning set forth in subsection 2.12(d) hereof.
“Maturity
Date”
shall
mean the Original Maturity Date, as it may be extended pursuant to subsection
2.7 hereof.
“Maximum
Swingline Amount”
shall
mean Twenty Million Dollars ($20,000,000).
“M/I
Ancillary Businesses”
shall
mean the businesses listed as M/I Ancillary Businesses on Schedule
4
hereto
and each business in which investments are made as permitted under subsection
7.6(k) hereof and (unless already an M/I Ancillary Business) which are at such
time designated as an “M/I Ancillary Business” by Borrower, each of which shall
be a corporation, limited partnership, limited liability partnership or limited
liability company which is engaged solely in activities reasonably related
to
the sale of single family housing, provided that such investment or other
ownership interest shall be as (a) a shareholder if the business is a
corporation, (b) a limited partner if the business is a limited partnership,
(c)
a limited liability partner if the business is a limited liability partnership,
or (d) a limited liability member if the business is a limited liability
company. As used herein, the term “Subsidiary” shall not include any M/I
Ancillary Business.
“M/I
Financial Corp.”
shall
mean M/I Financial Corp., an Ohio corporation and wholly-owned Subsidiary of
Borrower.
“M/I
Financial Corp. Liens”
shall
have the meaning set forth in subsection 7.1 hereof.
“M/I
Financial Corp. Loan Agreement”
shall
mean the First Amended and Restated Revolving Credit Agreement by and among
M/I
Financial Corp., Borrower and Guaranty Bank, effective as of April 27, 2006,
as
the same has been and may be amended, extended, renewed or replaced from time
to
time.
“Model
Houses”
shall
mean (a) all Housing Units owned by Borrower or any Guarantor which are being
used as sales models and (b) all Housing Units owned by Borrower or any
Guarantor for which there has been a Start of Construction which upon completion
will be used as sales models.
“Moody’s”
shall
mean Xxxxx’x Investors Service, Inc.
“Mortgage
Loan Repurchase Obligations”
shall
mean those obligations (as more particularly described in this definition)
of
M/I Financial Corp. under a Purchase Commitment to repurchase (a) Eligible
Mortgage Loans, (b) first mortgage loans that are not Eligible Mortgage Loans
solely because either (i) the mortgagor did not purchase from Borrower the
home
subject to such mortgage loan, or (ii) such mortgage loan is more than sixty
(60) days old as determined by the date of the note which evidences such loan,
(c) those second mortgage loans permitted by subsection 7.6(g) hereof, and
(d)
those first mortgage refinancing loans permitted by subsection 7.6(h) hereof;
provided, the obligations to repurchase the mortgage loans described in clauses
(a) through (d) of this definition shall exist only if (A) such mortgage loans
do not meet for any
reason
the investor guidelines regarding loan origination, loan processing or loan
closing and regarding underwriting criteria for such Purchase Commitment or
defects are noted in origination, processing or closing of mortgage loans by
the
investor, (B) M/I Financial Corp. or its employees engage in any fraudulent
conduct or misrepresentation, (C) the mortgagor fails to make timely payment
of
any of the first, second, third or fourth installments due under such mortgage
loan, and such delinquency remains uncured for a period of more than 30 days
or
results in a foreclosure action, (D) the mortgagor fails to make timely payment
of two or more monthly installments within six months from the date such
mortgage loan is purchased by such secondary market lender, (E) the mortgagor
engages in fraudulent conduct or misrepresentation or (F) with respect to
mortgage loans issued pursuant to the North Carolina Housing Finance Authority
bond programs, the mortgagor fails to make timely payment of the first
installment due under such mortgage loans.
“Multiemployer
Plan”
means
a
Plan covered by Title IV of ERISA which is a multiemployer plan as defined
in
Section 3(37) or 4001(a)(3) of ERISA.
“New
Lender”
shall
have the meaning set forth in subsection 2.6(b)(i) hereof.
“Note”
or
“Notes”
shall
mean a promissory note or notes substantially in the form of Exhibit
C
hereto,
executed and delivered by Borrower payable to the order of a Lender, and
delivered pursuant to subsection 2.2, subsection 2.6(b) or subsection 11.7(b)
hereof, as the same may be modified, amended, supplemented or replaced from
time
to time.
“Notice
of Borrowing”
shall
have the meaning set forth in subsection 2.3(a) hereof.
“Notice
of Conversion/Continuation”
shall
have the meaning set forth in subsection 3.1 hereof.
“Obligations”
shall
mean all unpaid principal of and accrued and unpaid interest on the Loans,
all
Reimbursement Obligations, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of Borrower to the Lenders
or
to any Lender, Agent, LC Issuer or any indemnified party arising under the
Loan
Documents.
“Original
Maturity Date”
means
October 5, 2010.
“Other
Taxes”
shall
have the meaning set forth in subsection 3.6(b) hereof.
“Participants”
shall
have the meaning set forth in subsection 11.4 hereof.
“PBGC”
shall
mean the Pension Benefit Guaranty Corporation established pursuant to Subtitle
A
of Title IV of ERISA.
“Performance
Letter of Credit”
shall
mean any Letter of Credit of the Borrower or a Guarantor that is issued for
the
benefit of a municipality, other governmental authority, utility, water or
sewer
authority, or other similar entity for the purpose of assuring such beneficiary
of the Letter of Credit of the proper and timely completion of construction
work.
“Permitted
Acquisition”
means
any Acquisition (other than by means of a hostile takeover, hostile tender
offer
or other similar hostile transaction) of a business or entity engaged primarily
in the business of home building, land acquisition or land development,
provided, that, immediately before and after giving effect to such Acquisition,
no Default or Event of Default has occurred and is continuing and that Borrower
delivers to Agent not less than ten (10) days prior to the consummation of
such
Acquisition, a certificate so stating (which notice shall be promptly forwarded
by Agent to each Lender).
“Person”
shall
mean an individual, a partnership (including without limitation a joint
venture), a limited liability company (including without limitation a joint
venture), a corporation (including without limitation a joint venture), a
business trust, a joint stock company, a trust, an unincorporated association,
a
Governmental Authority or any other entity of whatever nature (including without
limitation a joint venture).
“Plan”
shall
mean any pension plan which is covered by Title IV of ERISA and in respect
of
which Borrower or a Commonly Controlled Entity is an “employer” as defined in
Section 3(5) of ERISA.
“Prime
Rate”
means
the rate of interest per annum publicly announced from time to time by the
Agent
as its prime rate in effect at its principal office; each change in the Prime
Rate shall be effective from and including the date such change is publicly
announced as being effective.
“Proceeds
after Default”
shall
have the meaning set forth in Section 9 hereof.
“Purchase
Commitment”
shall
mean a commitment from a secondary market lender, pursuant to an agreement
with
M/I Financial Corp., either with respect to a particular mortgage loan or with
respect to mortgage loans meeting specified criteria, to purchase such mortgage
loan or loans without recourse (except for Mortgage Loan Repurchase Obligations)
for an amount not less than the difference of (a) the face amount of the note
evidencing such mortgage loan(s), minus (b) the sum of (i) the points agreed
upon between M/I Financial Corp. and such secondary market lender, and (ii)
the
amount of funds (for example, without limitation, escrow funds and origination
fees), other than points, received by M/I Financial Corp. at the loan closing
from the mortgagor.
“Quarterly
Payment Date”
shall
have the meaning set forth in Section 2.18 hereof.
“Ratable
Share”
shall
mean, with respect to any Lender on any date, (a) the ratio of (i) the amount
of
the Commitment of such Lender to (ii) the Aggregate Commitment or (b) if the
Aggregate Commitment has terminated, the ratio of (i) the outstanding Revolving
Credit Loans of such Lender to (ii) all outstanding Revolving Credit
Loans.
“Rating”
shall
mean, with respect to a Rating Agency (a) such Rating Agency’s
publicly-announced rating of Borrower’s senior unsecured bank credit facility or
(b) if such Rating Agency does not publicly announce the rating described in
clause (a) above, such Rating Agency’s publicly-announced rating of Borrower’s
senior unsecured long-term debt or (c) if such Rating Agency does not publicly
announce either of the ratings described in clauses (a) or (b) above, such
Rating Agency’s publicly-announced corporate rating of Borrower.
“Rating
Agency”
shall
mean each of Fitch, Moody’s or S&P.
“Receivables”
shall
mean the net proceeds payable to, but not yet received by, Borrower or a
Guarantor following a Housing Unit Closing or Lot Closing. “Receivables” shall
not include amounts payable to Borrower or a Guarantor under a mortgage
loan.
“Reimbursement
Obligations”
shall
mean Borrower’s obligations to reimburse an LC Issuer as a result of draws on
one or more Facility L/Cs.
“Rejecting
Lenders”
shall
have the meaning set forth in subsection 2.7(c) hereof.
“Replacement
Lender”
shall
have the meaning set forth in subsection 3.10 hereof.
“Reportable
Event”
shall
mean any of the events set forth in Section 4043(b) of ERISA or the regulations
thereunder.
“Required
Lenders”
shall
mean, at any particular time, Lenders having at least 66-2/3% of the aggregate
amount of the Revolving Credit Loans then outstanding or, if no Revolving Credit
Loans are then outstanding, Lenders having at least 66-2/3% of the Aggregate
Commitment.
“Requirement
of Law”
shall
mean as to any Person, the Certificate (or Articles) of Incorporation, By-Laws
(or Code of Regulations), Close Corporation Agreement (where applicable) or
other organizational or governing documents of such Person, and any law, treaty,
rule or regulation, or determination, including without limitation all
environmental laws, rules, regulations and determinations, of an arbitrator
or a
court or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject.
“Responsible
Officer”
shall
mean as to Borrower or any of Borrower’s Subsidiaries, the Chairman, President,
Chief Operating Officer, Chief Executive Officer or a Senior Vice President
of
such Person and, with respect to financial matters and matters described in
subsection 3.8 hereof, the Chief Financial Officer, Treasurer or Controller
of
such Person, in each case acting in his or her capacity as such.
“Revolving
Credit Loans”
shall
mean the revolving credit loans made pursuant to this Agreement that are more
particularly described in subsection 2.1 hereof.
“S&P”
shall
mean Standard & Poor’s Rating Services.
“S
Corporation”
shall
have the meaning set forth in Section 1361(a)(l) of the Code.
“Secured
Indebtedness”
shall
mean all Indebtedness of Borrower or any of its Subsidiaries (excluding
Indebtedness owing to Borrower or any of its Subsidiaries) that is secured
by a
Lien on assets of Borrower or any of its Subsidiaries (including without
limitation purchase money Indebtedness, non-recourse Indebtedness and Capital
Lease obligations).
“Senior
Debt Rating”
shall
mean (a) at any time at which each of Xxxxx’x, Fitch and S&P publicly
announces a Rating, the second highest of such three Ratings; (b) at any time
at
which Moody’s and S&P publicly announce Ratings but Fitch does not, the
higher of such Ratings; and (c) at any time at which Moody’s or S&P (but not
both) publicly announces a Rating (and regardless of whether Fitch publicly
announces a Rating), the Rating so publicly announced by Moody’s or S&P. At
any time at which neither Moody’s nor S&P publicly announces a Rating, no
Senior Debt Rating shall be deemed to exist. The Senior Debt Rating shall change
if and when such Rating(s) change, and such change in the Senior Debt Rating
shall have the effect provided for in subsection 2.5 and elsewhere in this
Agreement.
“Single
Employer Plan”
shall
mean any Plan which is not a Multiemployer Plan (as defined in
ERISA).
“Speculative
Housing Unit”
shall
mean any Housing Unit owned by the Borrower or a Guarantor that is not a Housing
Unit under Contract and shall include, without limitation, all Model
Houses.
“Start
of Construction”
shall
mean the commencement of the digging of the foundation or footer for a detached
or attached single family house (including a townhouse condominium building
or
condominium building) on Land that immediately prior thereto constituted a
Lot
hereunder.
“Statutory
Reserve Rate”
means
a
fraction (expressed as a decimal), the numerator of which is the number one
and
the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject (a) with respect to the Base CD Rate, for new
negotiable nonpersonal time deposits in dollars of over $100,000 with maturities
approximately equal to three months and (b) with respect to the Eurodollar
Rate,
for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Rate Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may
be
available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
“Subordinated
Indebtedness”
shall
mean, at any date, all unsecured subordinated Indebtedness of Borrower, the
terms and manner (including without limitation the terms and manner with respect
to subordination) of which are satisfactory to Required Lenders in their sole
discretion and approved in writing by Required Lenders and which is subordinate
to (a) the Obligations and (b) Borrower’s obligations, if any, as a guarantor or
otherwise of the obligations of M/I Financial Corp. (including without
limitation the obligations with respect to the M/I Financial Corp. Loan
Agreement).
“Subsidiary”
shall
mean, as to any Person, a corporation, limited liability company or other entity
of which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power
only
by reason of the happening of a contingency) to elect a majority of the board
of
directors or other managers of such corporation, limited liability company
or
other entity are at the time owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or
both,
by such Person, and with respect to Borrower shall include all Subsidiaries
of
Subsidiaries of Borrower. Unless otherwise specified, “Subsidiary” means a
Subsidiary of Borrower (including Subsidiaries of Subsidiaries); provided that
“Subsidiary” shall not include any M/I Ancillary Business.
“SunTrust”
shall
mean SunTrust Bank.
“Supplemental
Guaranty”
shall
have the meaning set forth in the Guaranty Agreement.
“Swingline
Expiry Date”
shall
mean the date which is ten (10) Business Days prior to the Maturity
Date.
“Swingline
Lender”
means
JPMorgan Chase Bank in its capacity as lender of Swingline Loans.
“Swingline
Loan”
shall
have the meaning set forth in subsection 2.12 hereof.
“Taxes”
shall
mean any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and any and all liabilities with respect to the
foregoing, but excluding Excluded Taxes and Other Taxes.
“Three-Month
Secondary CD Rate”
means,
for any day, the secondary market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day is not a Business
Day,
the next preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will, under
the current practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day) or, if such rate is not
so
reported on such day or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of deposit of major
money center banks in New York City received at approximately 10:00 a.m., New
York City time, on such day (or, if such day is not a Business Day, on the
next
preceding Business Day) by the Agent from three negotiable certificate of
deposit dealers of recognized standing selected by it.
“Tranche”
shall
mean the collective reference to those Eurodollar Rate Loans, the then current
Interest Periods with respect to all of which begin on the same date and end
on
the same date (whether or not such Eurodollar Rate Loans shall originally have
been made on the same day).
“Uniform
Customs”
shall
mean the Uniform Customs and Practice for Documentary Credits, 1993 revision,
ICC Publication No. 500, or amendment thereof or successor thereto referenced
in
any LC Issuer’s issued Letters of Credit.
“Unimproved
Entitled Land”
shall
mean all Lots that are neither Lots under Development, Finished Lots or Lots
under Contract.
“Wachovia”
shall
mean Wachovia Bank, National Association.
Other
Definitional Provisions.
All
terms
defined in this Agreement shall have the defined meanings when used in the
Notes
or any certificate or other document made or delivered pursuant hereto or
thereto unless otherwise defined therein.
As
used
herein, in the Notes or in any certificate or other document made or delivered
pursuant hereto or thereto, accounting terms relating to Borrower and Borrower’s
Subsidiaries not defined in subsection 1.1 hereof, to the extent not defined,
shall have the respective meanings given to them under GAAP.
Any
reference to “value” of property shall mean the lower of cost or market value of
such property, determined in accordance with GAAP.
The
definition of any document or instrument includes all schedules, attachments
and
exhibits thereto and all renewals, extensions, supplements and amendments
thereof; terms otherwise defined herein have the same meanings throughout this
Agreement.
“Hereunder,”
“herein,” “hereto,” “this Agreement” and words of similar import refer to this
entire document; “including” is used by way of illustration and not by way of
limitation, unless the context clearly indicates the contrary; and the singular
includes the plural and conversely.
AMOUNT
AND TERMS OF COMMITMENTS, REVOLVING CREDIT LOANS, SWINGLINE LOANS AND FACILITY
L/CS
Commitments.
Each
Lender severally agrees, on the terms and conditions hereinafter set forth,
to
make Revolving Credit Loans to the Borrower from time to time during the
Commitment Period, and to purchase undivided interests and participations in
Facility LCs in accordance with subsection 2.16 hereof, in an aggregate
principal amount of Loans made by such Lender and of such Lender’s Ratable Share
of the Facility L/C Obligations not to exceed at any time outstanding the amount
set forth for such Lender in Schedule
1
hereto
(such Lender’s obligations to make Revolving Credit Loans and to purchase
undivided interests and participations in Facility L/Cs in accordance with
subsection 2.16 hereof in such amounts, as reduced, increased or otherwise
modified from time to time pursuant to the terms of this Agreement, being herein
referred to as such Lender’s “Commitment”),
subject to the limitations set forth in subsection 2.1(b) hereof.
The
aggregate amount of Borrowing Base Indebtedness at any one time outstanding
may
not exceed the Borrowing Base, and no Revolving Credit Loan (or Swingline Loan)
shall be made, nor shall any Facility L/C be issued, that would have the effect
of
increasing
the then outstanding amount of the Borrowing Base Indebtedness to an amount
exceeding such Borrowing Base, provided that a Revolving Credit Loan shall
not
be deemed to have increased the amount of the Borrowing Base Indebtedness if,
and only to the extent that, the proceeds of such Revolving Credit Loan are
immediately used to repay a Swingline Loan.
No
Revolving Credit Loans shall be made at any time that any Swingline Loan is
outstanding, except for Revolving Credit Loans that are used, on the day on
which made, to repay in full the outstanding principal balance of the Swingline
Loans. During the Commitment Period and as long as no Default or Event of
Default exists, Borrower may borrow, prepay in whole or in part and reborrow
Revolving Credit Loans, all in accordance with the terms and conditions
hereof.
Subject
to the terms and conditions of this Agreement (including the limitations on
the
availability of Eurodollar Rate Loans and including the termination of the
Aggregate Commitment as set forth in Section 9 hereof), the Revolving Credit
Loans may from time to time be (i) Eurodollar Rate Loans, (ii) ABR Loans, or
(iii) a combination thereof, as determined by Borrower and notified to Agent
in
accordance with subsection 2.3 hereof, provided (a) that no Revolving Credit
Loan shall be made as a Eurodollar Rate Loan after the day that is one month
prior to the last day of the Commitment Period, and (b) that the maximum number
of Tranches that may be outstanding at any one time as Revolving Credit Loans
may not exceed eight in the aggregate.
Notes.
The Revolving Credit Loans made by Lenders pursuant hereto shall be evidenced
by
Notes, payable to the order of each Lender in the amount of its Commitment
and
evidencing the obligation of Borrower to pay the aggregate unpaid principal
amount of the Revolving Credit Loans made by such Lender, with interest thereon
as prescribed in subsection 2.5 hereof. Each Lender is hereby authorized to
record electronically or otherwise the date and amount of each Revolving Credit
Loan disbursement made by such Lender, and the date and amount of each payment
or prepayment of principal thereof, and any such recordation shall constitute
prima facie evidence of the accuracy of the information so recorded; provided,
however, the failure of such Lender to make, or any error in making, any such
recordation(s) shall not affect the obligation of Borrower to repay outstanding
principal, interest, or any other Obligation due hereunder or under the Notes
in
accordance with the terms hereof and thereof. Each Note shall (a) be dated
as of
the date hereof, (b) be stated to mature on the Maturity Date, which Maturity
Date may be extended as provided in subsection 2.7 hereof, and (c) bear interest
for the period from and including the date thereof on the unpaid principal
amount thereof from time to time outstanding at the applicable interest rate
per
annum determined as provided in subsection 2.5 hereof. Interest on each
Revolving Credit Loan shall be payable as specified in subsection 2.5
hereof.
Procedure
for Borrowing.
Borrower
may borrow under the Commitments (subject to the limitations on the availability
of Eurodollar Rate Loans), during the Commitment Period, provided Borrower
shall
give Agent written (which may be by electronic mail) notice (the
“Notice
of Borrowing”),
which Notice of Borrowing must be received (i) prior to 12:00 noon, New York
time, at least three (3) Business Days prior to the requested Borrowing Date
for
that part of the requested borrowing that is to be Eurodollar Rate Loans, or
(ii) prior to 11:00 a.m., New York time on or before the requested Borrowing
Date for that part of the requested borrowing that is to be ABR Loans which
Notice of Borrowing, in the case of ABR Loan(s), shall be irrevocable. Each
Notice of Borrowing shall specify (A) the Borrowing Date (which shall be a
Business Day), (B) the amount of the requested borrowing, (C) whether the
borrowing is to be of Eurodollar Rate Loans, ABR Loans or a combination thereof
and (D) if the borrowing is to be entirely or partly of Eurodollar Rate Loans,
the amount of each ABR Loan, if any, and the respective amounts of each such
Eurodollar Rate Loan and the respective lengths of the initial Interest Periods
therefor. Each borrowing pursuant to the Commitments shall be in the principal
amount (1) in the case of ABR Loans, of $1,000,000 or any larger amount which
is
an even multiple of $100,000, and (2) in the case of Eurodollar Rate Loans,
of
$10,000,000 or any larger amount which is an even multiple of
$1,000,000.
After
the
Borrower gives Notice of Borrowing with respect to Eurodollar Rate Loans, Agent,
by 10:00 a.m., New York time, two Business Days prior to the requested Borrowing
Date, shall advise the Borrower of the applicable interest rate(s) (which is
the
sum of the applicable Eurodollar Rate(s) and the Applicable Eurodollar Margin)
for the Eurodollar Rate Loan(s) and Interest Period(s) requested in the Notice
of Borrowing. Not more than two hours thereafter, the Borrower shall give Agent
written irrevocable confirmation of whether or not the Borrower selects
Eurodollar Rate Loan(s) on such Borrowing Date and, if so, the amount(s) and
Interest Period(s) of such Eurodollar Rate Loan(s). If the Borrower’s written
confirmation is timely made, the Borrower shall be deemed to be requesting
borrowing(s) of Eurodollar Rate Loan(s) in the amount(s) and for the Interest
Period(s) stated in the confirmation. If the Borrower’s confirmation is not
timely made, the Borrower shall be deemed to have requested a borrowing entirely
as an ABR Loan in the aggregate amount and on the Borrowing Date specified
in
the Notice of Borrowing.
By
1:00
p.m., New York time, (i) with respect to any ABR Loan, on the requested
Borrowing Date and (ii) with respect to any Eurodollar Rate Loan, two Business
Days prior to the requested Borrowing Date, Agent shall give notice by facsimile
to each Lender of such request, specifying (A) the Borrowing Date (which shall
be a Business Day), (B) the amount of the requested borrowing, (C) whether
the
borrowing is to be of Eurodollar Rate Loans, ABR Loans or a combination thereof,
and (D) if the borrowing is to be entirely or partly of Eurodollar Rate Loans,
the amount of each ABR Loan, if any, and the respective amounts of each such
Eurodollar Rate Loan, the applicable Eurodollar Rate for each such Eurodollar
Rate Loan and the respective lengths of the initial Interest Periods therefor.
Subject to satisfaction of the terms and conditions of this Agreement, each
Lender shall deposit funds with Agent for the account of Borrower by 3:00 p.m.
New York time on the Borrowing Date by wire transfer or
other
immediately available funds equal to its Ratable Share of the Revolving Credit
Loans to be made on the Borrowing Date. The Loan(s) will then be made available
to Borrower by Agent crediting the account of Borrower on the books of Agent
with the aggregate amounts made available to Agent by Lenders, and in like
funds
as received by Agent.
Each
Lender may book its Loans and its participations in Facility L/Cs at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such Lending
Installation and the Loans and the Notes issued hereunder shall be deemed held
by each Lender for the benefit of any such Lending Installation. Each Lender
and
LC Issuer may, by written notice to the Agent and Borrower in accordance with
subsection 11.2 hereof, designate replacement or additional Lending
Installations through which Loans will be made by it or Facility L/Cs will
be
issued by it and for whose account Loan payments or a payment with respect
to
Facility L/Cs are to be made.
Each
ABR
Loan shall continue as an ABR Loan unless and until such ABR Loan is converted
into a Eurodollar Rate Loan pursuant to subsection 3.1 or is repaid in
accordance with subsection 2.11. Each Eurodollar Rate Loan shall continue as
a
Eurodollar Rate Loan until the end of the then applicable Interest Period
therefor, at which time such Eurodollar Rate Loan shall be automatically
converted into an ABR Loan unless (x) such Eurodollar Loan is or was repaid
in
accordance with subsection 2.11 or (y) such Eurodollar Rate Loan is continued
as
a Eurodollar Rate Loan in accordance with subsection 3.1.
Commitment
Fee.
Borrower agrees to pay to Agent for the benefit of each Lender a commitment
fee
(the “Commitment
Fee”)
for the Commitment Period, computed at the Applicable Commitment Rate per annum
on the average daily unused amount of each Lender’s Commitment during the
Commitment Period, payable quarterly in arrears and due on each Quarterly
Payment Date and on the last day of the Commitment Period, commencing on the
first of such dates to occur after the date hereof. For purposes of determining
the unused portion of the Aggregate Commitment and the unused portion of a
Lender’s Commitment hereunder, (a) the Aggregate Commitment shall be deemed used
to the extent of the aggregate face amount of the outstanding Facility L/Cs
and
such Lender’s Commitment shall be deemed used to the extent of such Lender’s
Ratable Share of the aggregate face amount of the outstanding Facility L/Cs
and
(b) Swingline Loans shall constitute usage of the Swingline Lender’s Commitment
only.
Interest;
Default Interest.
Except
as
provided in subsection 2.5(d) hereof, (i) the Revolving Credit Loans shall
bear
interest on the unpaid principal amount thereof at a rate per annum equal to
(y)
in the case of ABR Loans, the Alternate Base Rate in effect from time to time,
plus the Applicable ABR Margin in effect for such day, and (z) in the case
of
Eurodollar Rate Loans, if permitted hereunder at such time, the Eurodollar
Rate
determined for each Interest Period then in effect, plus the Applicable
Eurodollar Margin in effect for such day, and (ii) the Swingline
Loans
shall
bear interest on the unpaid principal amount thereof at a rate per annum equal
to the Alternate Base Rate in effect from time to time, plus the Applicable
ABR
Margin in effect for such day.
The
Applicable Margins and the Applicable Commitment Rate shall be determined by
reference to the Senior Debt Rating in accordance with the following table
and
the provisions of this subsection 2.5(b):
|
Level
I
|
Level
II
|
Level
III
|
Level
IV
|
Level
V
|
|
|
Senior
Debt Rating
|
BBB-/Baa3
or
higher
|
BB+/Ba1
|
BB/Ba2
|
BB-/Ba3
|
B+/B1
or lower or no Senior Debt Rating
|
|
Applicable
Eurodollar Margin and Applicable Facility L/C Rate
|
1.00%
|
1.25%
|
1.50%
|
1.75%
|
2.00%
|
|
Applicable
ABR Margin
|
0
|
0
|
0
|
0.125%
|
0.375%
|
|
Applicable
Commitment Rate
|
0.20%
|
0.225%
|
0.25%
|
0.30%
|
0.375%
|
The
Applicable Margins and the Applicable Commitment Rate shall be adjusted, from
time to time, effective (as applicable) on the first Business Day after any
change in the Senior Debt Ratings that results in any change in the Applicable
Margins or Applicable Commitment Rate, provided,
however,
that
any change in the Applicable Eurodollar Margin shall only apply to Eurodollar
Rate Loans for Interest Periods commencing after such change in the Applicable
Eurodollar Margin is effective.
As
of the
date hereof, the Applicable Margins and Applicable Commitment Rate are at Level
III.
If
all or
a portion of the principal amount of any of the Revolving Credit Loans made
hereunder (whether as ABR Loans or Eurodollar Rate Loans or a combination
thereof) or the Swingline Loans or any installment of interest on any Revolving
Credit Loan or Swingline Loan or any Commitment Fee or Facility L/C Fees shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), any such overdue principal amount and, to the extent permitted
by
applicable law, any overdue installment of interest on any Revolving Credit
Loan
or Swingline Loan or any overdue payment of Commitment Fees or Facility L/C
Fees
hereunder shall, without limiting any other rights of Lenders, bear interest
at
a rate per annum which is the sum of the Alternate Base Rate in effect from
time
to time, plus the Applicable ABR Margin, plus one percent (1%), from the date
of
such non-payment until paid in full (before, as well as after, judgment);
provided, however, if all or any portion of any principal on any Revolving
Credit Loan made as a Eurodollar Rate Loan hereunder shall not be paid when
due
and the then current Interest Period for such Eurodollar Rate Loan has not
yet
expired, the entire principal amount of such Eurodollar Rate Loan and, to the
extent permitted by applicable law, any overdue installment of interest on
such
Eurodollar Rate Loan shall, without limiting any other rights of Lenders, bear
interest at a rate per annum which is the sum of one percent (1%) plus the
applicable non-default interest rate (which is the sum of the applicable
Eurodollar Rate and the Applicable Eurodollar Margin) on such Eurodollar Rate
Loan then in effect from the date of such non-payment until the expiration
of
the then current Interest Period with respect to such
Eurodollar
Rate Loan (before, as well as after, judgment); thereafter, the entire principal
amount of such Eurodollar Rate Loan and, to the extent permitted by applicable
law, any overdue installment of interest on such Eurodollar Rate Loan shall,
without limiting any other rights of Lenders, bear interest at a rate per annum
which is the sum of the Alternate Base Rate in effect from time to time, plus
the Applicable ABR Margin, plus one percent (1%), until paid in full (before,
as
well as after, judgment).
Interest
shall be payable in arrears and shall be due on each Interest Payment
Date.
Termination,
Reduction or Increase of Aggregate Commitment.
i) Borrower
shall have the right to terminate the Aggregate Commitment or, from time to
time
(and so long as no Default or Event of Default exists), reduce the amount of
the
Aggregate Commitment, upon not less than five (5) Business Days’ written notice
to each Lender specifying (A) either a reduction or termination and (B) in
the
case of a reduction, whether any prepayment, if required by this Agreement,
shall be of ABR Loans, Eurodollar Rate Loans or a combination thereof, and,
in
each case if a combination thereof, the principal allocable to
each.
Any
such
reduction of the Aggregate Commitment shall be in the amount of $5,000,000
or a
whole multiple of $1,000,000 in excess thereof and shall reduce permanently
the
amount of the Aggregate Commitment then in effect. Any such reduction shall
be
accompanied by (A) prepayment of the Revolving Credit Loans made hereunder
to
the extent, if any, that the sum of the amount of such Revolving Credit Loans,
the Swingline Loans and the Facility L/C Obligations then outstanding exceeds
the amount of the Aggregate Commitment, as then reduced, together with accrued
interest on the amount so prepaid to the date of such prepayment, and (B) if
a
Revolving Credit Loan is a Eurodollar Rate Loan that is prepaid other than
at
the end of the Interest Period applicable thereto, by any amounts payable
pursuant to subsection 3.5 hereof.
Any
such
termination of the Commitment shall be accompanied (A) by prepayment in full
of
the Loans then outstanding hereunder, together with accrued interest thereon
to
the date of such prepayment, and the payment of any unpaid Commitment Fee then
accrued hereunder; (B) with respect to Facility L/Cs, by Borrower’s compliance
with the terms of subsection 2.15 hereof; and (C) if a Revolving Credit Loan
is
a Eurodollar Rate Loan that is prepaid other than at the end of the Interest
Period applicable thereto, by any amounts payable pursuant to subsection 3.5
hereof.
Any
such
reduction or termination of the Aggregate Commitment shall be allocated to
each
Lender’s Commitment ratably in proportion to its Ratable Share.
ii) Subject
to the provisions of this subsection 2.6(b), Borrower may, at any time and
from
time to time, request (“Facility
Increase Request”),
by
notice to Agent, Agent’s approval of an increase of the Aggregate Commitment
within the limitations hereinafter set forth, which Facility Increase Request
shall set forth the amount of such requested increase. Within twenty (20) days
of such Facility Increase Request, Agent shall advise Borrower of
its
approval
or disapproval thereof; failure to so advise Borrower shall constitute
disapproval. Upon approval of Agent, the Aggregate Commitment may be so
increased either by having one or more Eligible Assignees (other than Lenders
then holding a Commitment hereunder) approved by Borrower and Agent (each a
“New
Lender”)
become
Lenders hereunder and/or by having any one or more Lenders then holding a
Commitment hereunder (at their respective election in their sole discretion)
that have been approved by Borrower and Agent increase the amount of their
Commitments (any such Lender that elects to increase its Commitment and any
New
Lender being hereinafter referred to as an “Additional
Lender”),
provided that (A) unless otherwise agreed by Borrower and Agent, the Commitment
of any New Lender shall not be less than $10,000,000 and (B) unless otherwise
agreed by Borrower and Agent, the increase in the Commitment of any Lender
shall
be not less than $5,000,000; (C) the Aggregate Commitment shall not exceed
$1,000,000,000; (D) Borrower and each Additional Lender shall have executed
and
delivered a commitment and acceptance (the “Commitment
and Acceptance”)
substantially in the form of Exhibit
D
hereto
and Agent shall have accepted and executed the same; (E) Borrower shall have
executed and delivered to Agent a Note or Notes payable to the order of each
Additional Lender, each such Note to be in the amount of such Additional
Lender’s Commitment or increased Commitment (as applicable); (F) Borrower shall
have delivered to Agent an opinion of counsel (substantially similar to the
form
of opinion attached hereto as Exhibit
E,
modified to apply to the increase in the Aggregate Commitment and each Note
and
Commitment and Acceptance executed and delivered in connection therewith);
(G)
the Guarantors shall have delivered to Agent a written instrument confirming
their consent to the new Commitments or increases in Commitments (as applicable)
and that their Guaranty Agreements continue in full force and effect; and (H)
Borrower and each Additional Lender shall otherwise have executed and delivered
such other instruments and documents as Agent shall have reasonably requested
in
connection with such new Commitment or increase in a Commitment (as applicable).
The form and substance of the documents required under clauses (D) through
(H)
above shall be fully acceptable to Agent. Agent shall provide written notice
to
Lenders following any such increase in the Aggregate Commitment hereunder and
shall furnish to Lenders copies of the Commitment and Acceptance.
On
the
effective date of any increase in the Aggregate Commitment pursuant to the
provisions hereof (“Increase
Date”),
which
Increase Date shall be mutually agreed upon by Borrower, each Additional Lender
and Agent, each Additional Lender shall make a payment to Agent in an amount
sufficient, upon the application of such payments by all Additional Lenders
to
the reduction of the outstanding ABR Loans (other than Swingline Loans) held
by
Lenders, to cause the principal amount outstanding under such ABR Loans made
by
all Lenders (including any Additional Lender) to be in the proportion of their
respective Commitments (as of such Increase Date). Borrower hereby irrevocably
authorizes each Additional Lender to fund to Agent the payment required to
be
made pursuant to the immediately preceding sentence for application to the
reduction of the outstanding ABR Loans held by each Lender, and each such
payment shall constitute a ABR Loan hereunder. Such Additional Lender shall
not
participate in any Eurodollar Rate Loans that are outstanding on the Increase
Date, but, if Borrower shall, at any time on or after such Increase Date,
convert or continue any Eurodollar Rate Loans outstanding on such Increase
Date,
Borrower shall be deemed to repay such Eurodollar Rate Loans on the date of
the
conversion or continuation thereof and then to reborrow as a Eurodollar Rate
Loan a like amount on such date so that each Additional Lender shall make a
Eurodollar Rate Loan on such date in its Ratable Share of such
Eurodollar
Rate Loans. Each Additional Lender shall also advance its Ratable Share of
all
Revolving Credit Loans made on or after such Increase Date and shall otherwise
have all of the rights and obligations of a Lender hereunder on and after such
Increase Date. Notwithstanding the foregoing, upon the occurrence of an Event
of
Default prior to the date on which an Additional Lender is holding Revolving
Credit Loans equal to its Ratable Share of all Revolving Credit Loans hereunder,
such Additional Lender shall, upon notice from Agent, on or after the date
on
which the Obligations are accelerated or become due following such Event of
Default, pay to Agent (for the account of the other Lenders, to which the Agent
shall pay their pro rata shares upon receipt) a sum equal to such Additional
Lender’s Ratable Share of each Revolving Credit Loan then outstanding with
respect to which such Additional Lender does not then hold its Ratable Share
thereof.
On
the
Increase Date and the making of the Loans by an Additional Lender in accordance
with the provisions of the first sentence of subsection 2.6(b)(ii) hereof,
such
Additional Lender shall also be deemed to have irrevocably and unconditionally
purchased and received, without recourse or warranty, from Lenders party to
this
Agreement immediately prior to the Increase Date, an undivided interest and
participation in any Facility L/C then outstanding, ratably, such that all
Lenders (including each Additional Lender) hold participation interests in
each
such Facility L/C in the proportion of their respective Commitments (taking
into
account the increase in the Aggregate Commitment that is effective on such
Increase Date).
Nothing
contained herein shall constitute, or otherwise be deemed to be, a commitment
or
agreement on the part of any Lender to increase its Commitment hereunder at
any
time or a commitment or agreement on the part of Borrower or Agent to give
or
grant any Lender the right to increase its Commitment hereunder at any
time.
Maturity
Date of Commitment; Extension.
Unless
earlier terminated pursuant to the terms of this Agreement, the Aggregate
Commitment shall terminate on the Maturity Date, and the unpaid balance of
the
Revolving Credit Loans and Swingline Loans outstanding shall be paid on the
Maturity Date.
Not
more
than once in any fiscal year of Borrower, Borrower may request an extension
of
the Maturity Date to the first anniversary of the then scheduled Maturity Date
(but in no event to a date that is later than the fourth anniversary of the
date
of such request) by submitting a request for an extension to Agent not less
than
180 days prior to the then scheduled Maturity Date. Prior to the delivery by
Agent to the Lenders of such request for extension, Borrower shall propose
to
Agent the amount of the fees that Borrower would agree to pay with respect
to
such extension if approved by the Lenders. Promptly upon (but not later than
five (5) Business Days after) Agent’s receipt and approval of both the extension
request and fee proposal (as so approved, the “Extension
Request”),
Agent
shall deliver to each Lender a copy of, and shall request each Lender to
approve, the Extension Request. Each Lender approving the Extension Request
shall deliver its written approval no later than 60 days after such Lender’s
receipt of the Extension Request. Except as otherwise provided in subsection
2.7(c) below, if and only if the written approval of the Extension Request
by
all Lenders is received by Agent within such 60-day period, the Maturity Date
shall be extended to the first anniversary of the then scheduled Maturity Date
(as specified in the Extension Request).
If
(i)
any Lender or Lenders whose pro rata shares (in the aggregate) of the Aggregate
Commitment do not exceed 33⅓% of the Aggregate Commitment (“Rejecting
Lenders”)
shall
not approve an Extension Request, (ii) all rights and obligations of such
Rejecting Lenders under this Agreement and under the other Loan Documents
(including, without limitation, their Commitment and all Loans owing to them)
shall have been assigned, within ninety (90) days following such Extension
Request, in accordance with subsection 3.10, to one or more Replacement Lenders
who shall have approved in writing such Extension Request at the time of such
assignment, and (iii) no other Lender shall have given written notice to Agent
of such Lender’s withdrawal of its approval of the Extension Request, Agent
shall promptly so notify Borrower and each Lender, and the Maturity Date shall
be extended by one (1) year.
Within
ten (10) days of Agent’s notice to Borrower that all Lenders have approved an
Extension Request (whether pursuant to subsection 2.7(b) or 2.7(c)), Borrower
shall pay to Agent for the account of the Lenders the applicable extension
fees
specified in the Extension Request, and Agent shall promptly remit to each
Lender its Ratable Share thereof.
Computation
of Interest and Fees.
Commitment Fees on the Commitment and interest in respect of the Revolving
Credit Loans shall be calculated on the basis of a 360-day year for the actual
days elapsed. Any change in the interest rate on the Loans and the Notes
resulting from a change in the Alternate Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business of the day
on
which such change in the Alternate Base Rate or the Eurocurrency Reserve
Requirements shall become effective, without notice to Lenders or Borrower.
However, Agent shall give Borrower and Lenders prompt notice of all changes
in
the Alternate Base Rate or the Eurocurrency Reserve Requirements. Each
determination of an interest rate by Agent pursuant to any provision of this
Agreement shall be conclusive and binding on Lenders and Borrower in the absence
of manifest error.
Increased
Costs.
If a Lender or an LC Issuer determines that the amount of capital required
or
expected to be maintained by such Lender or such LC Issuer, any Lending
Installation of such Lender or an LC Issuer, or any corporation controlling
such
Lender or LC Issuer is increased as a result of a Change, then, within fifteen
(15) days of written notice by such Lender or LC Issuer (which notice shall
be
given not later than 180 days after the Change resulting in such increase),
Borrower shall pay such Lender or LC Issuer the amount necessary to compensate
for any shortfall in the rate of return on the portion of such increased capital
which such Lender or LC Issuer determines is attributable to this Agreement,
its
Loans or its issuance of or participation in Facility L/Cs or its Commitment
to
make Loans or to issue or to participate in Facility L/Cs, as the case may
be,
hereunder (after taking into account such Lender’s or LC Issuer’s policies as to
capital adequacy). “Change” means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of or change
in any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of
law)
after the date of this Agreement which
affects
the amount of capital required or expected to be maintained by any Lender or
LC
Issuer or any Lending Installation or any corporation controlling any Lender
or
LC Issuer. “Risk-Based Capital Guidelines” means (a) the risk-based capital
guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (b) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing
the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled “International Convergence of Capital Measurements and
Capital Standards,” including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement. Such Lender’s written
notice to Borrower for compensation hereunder shall set forth in reasonable
detail the computation of any additional amounts payable to such Lender by
Borrower, and such request and computation shall be conclusive and binding
in
the absence of manifest error. This provision shall remain in full force and
effect with respect to the Loans until the later of (1) the termination of
this
Agreement or (2) the payment in full of all Notes (provided that before
accepting final payment on the Notes, a Lender shall calculate any amounts
due
it in accordance with this subsection 2.9 and give notice to Borrower of such
amounts as stated herein, and Borrower shall include such amounts in Borrower’s
final payment). This provision shall survive the termination of all Facility
L/Cs and, with respect to Facility L/Cs, shall remain in full force and effect
until there is no existing or future obligation of Agent or any Lender under
any
Facility L/C. The provisions of this subsection 2.9 shall be supplemented by
the
provisions of Section 3 hereof.
Use
of Proceeds.
The proceeds of the Revolving Credit Loans made hereunder shall be used by
Borrower for lawful purposes in Borrower’s business.
Payments;
Pro Rata Treatment.
Each
borrowing by Borrower from Lenders hereunder, each payment (including each
prepayment) by Borrower on account of principal of and interest on the Revolving
Credit Loans, each payment by Borrower on account of any Commitment Fee
hereunder and any reduction of the Commitments shall be made pro rata according
to the respective Lenders’ Ratable Shares. All payments (including prepayments)
to be made by Borrower hereunder and under the Notes, whether on account of
principal, interest, fees or otherwise, shall be made without set-off or
counterclaim and shall be made prior to 12:00 noon, New York time, on the due
date thereof to Agent, for the account of Lenders, at Agent’s office in New
York, New York (or such other office as designated in writing from time to
time
by Agent), in Dollars and in immediately available funds. Agent shall distribute
such payments to Lenders upon receipt in like funds as received, which
distributions shall be made by Agent on the day that it receives such funds
if
received by 12:00 noon, New York time and otherwise not later than the next
succeeding Business Day. If the Agent does not distribute such payments to
Lenders when required, each Lender shall be entitled to recover from Agent
interest on such corresponding amount in respect of each day from the date
such
payments were required to be distributed to such Lender to the date such
corresponding amount is actually delivered to such Lender by
Agent,
at
a rate per annum equal to the Federal Funds Rate for the first three days and
thereafter at the Alternate Base Rate. If any payment hereunder on an ABR Loan
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment hereunder on a Eurodollar Rate Loan
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day (and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension) unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall
be
made on the immediately preceding Business Day.
Borrower
may from time to time pay, without penalty or premium, all outstanding ABR
Loans, or, in a minimum aggregate amount of $500,000 or any integral multiple
of
$100,000 in excess thereof, any portion of the outstanding ABR Loans upon notice
to Agent not later than 12:00 noon, New York time on the date of payment.
Borrower may from time to time pay, subject to the payment of any funding
indemnification amounts required by subsection 3.5 but without penalty or
premium, all outstanding Eurodollar Rate Loans, or, in a minimum aggregate
amount of $5,000,000 or any integral multiple of $1,000,000 in excess thereof,
any portion of the outstanding Eurodollar Rate Loans upon notice to Agent not
later than 11:00 a.m. New York time on the date of payment.
Swingline
Loans.
Subject
to the terms and conditions of this Agreement, Swingline Lender agrees to make
at any time and from time to time after the initial Borrowing Date and prior
to
the Swingline Expiry Date swingline loans to Borrower (“Swingline
Loans”),
which
Swingline Loans (i) shall be made and maintained as ABR Loans, (ii) shall be
denominated in Dollars, (iii) may be repaid and reborrowed in accordance with
the provisions hereof, (iv) shall not exceed, in aggregate principal amount
at
any one time outstanding, the lesser of (A) the Maximum Swingline Amount and
(B)
the amount by which Swingline Lender’s Commitment exceeds its share of the sum
of all Revolving Credit Loans and Facility L/C Obligations and (v) shall be
subject to the limitations set forth in subsection 2.1(b) hereof. Swingline
Lender will not make a Swingline Loan after it has received written notice
from
Borrower or the Required Lenders stating that a Default or an Event of Default
exists until such time as Swingline Lender shall have received a written notice
of (i) rescission of such notice from the party or parties originally delivering
the same or (ii) a waiver of such Default or Event of Default, as required
by
this Agreement.
Borrower
shall give Swingline Lender irrevocable telephonic or written notice prior
to
3:00 p.m., New York time on the requested Borrowing Date specifying the amount
of the requested Swingline Loan which shall be in a minimum amount of $500,000
or whole multiples of $100,000 in excess thereof. The Swingline Loans will
then
be made available to Borrower by Swingline Lender by crediting the account
of
Borrower on the books of Swingline Lender.
The
Swingline Loans shall be evidenced by the Note held by Swingline Lender.
Swingline Lender is hereby authorized to record electronically or otherwise
the
date and
amount
of
each Swingline Loan, and the date and amount of each payment or prepayment
of
principal thereof, and any such recordation shall constitute prima facie
evidence of the accuracy of the information so recorded, provided, however,
the
failure of Swingline Lender to make, or any error in making, any such
recordation(s) shall not affect the obligation of Borrower to repay outstanding
principal, interest, or any other amount due hereunder in accordance with the
terms hereof and thereof. The Swingline Loan shall (i) mature on the Swingline
Expiry Date, and (ii) bear interest for the period from and including the date
thereof on the unpaid principal amount thereof from time to time outstanding
at
the applicable interest rate per annum determined as provided in subsection
2.5
hereof. Interest on each Swingline Loan shall be payable as specified in
subsection 2.5 hereof.
Swingline
Lender, at any time and in its sole and absolute discretion, may (and, not
later
than three (3) Business Days after the making of a Swing Line Loan, shall),
on
behalf of Borrower (which hereby irrevocably directs Swingline Lender to act
on
Borrower’s behalf), request each Lender, including Swingline Lender, to make a
Revolving Credit Loan (each, a “Mandatory
Borrowing”)
in an
amount equal to such Lender’s Ratable Share of the amount of the Swingline Loans
(provided that each such request shall be deemed to have been automatically
given upon the occurrence of a Default or an Event of Default under Section
9 or
upon the exercise of any of the remedies provided in the last paragraph of
Section 9), in which case each Lender shall make the proceeds of its Revolving
Credit Loan available to Swingline Lender, on the Business Day immediately
following Agent’s notice to the Lenders, in its Ratable Share thereof, and the
proceeds thereof shall be applied directly to repay Swingline Lender for such
outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make
ABR
Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in the
amount and in the manner specified in the preceding sentence and on the date
specified by Swingline Lender notwithstanding (i) that the amount of the
Mandatory Borrowing may not comply with the minimum borrowing amount otherwise
required hereunder, (ii) whether any conditions specified in Section 5 are
then
satisfied, (iii) whether a Default or an Event of Default has occurred and
is
continuing, (iv) the date of such Mandatory Borrowing, (v) any reduction in
the
Commitments after any such Swingline Loans were made, (vi) Borrower’s compliance
with Borrowing Base requirements, (vii) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against Swingline Lender,
Borrower or any other Person for any reason whatsoever, or (viii) any other
circumstance, happening or event whatsoever, whether or not similar to any
of
the foregoing. In the event that any Mandatory Borrowing cannot for any reason
be made on the date otherwise required above (including, without limitation,
as
a result of the commencement of a proceeding under the Bankruptcy Code in
respect of Borrower), each Lender (other than Swingline Lender) hereby agrees
that it shall forthwith purchase from Swingline Lender (without recourse or
warranty) a participation interest in such outstanding Swingline Loans as shall
be necessary to cause the Lenders to hold participation interests in such
Swingline Loans in the proportion of their respective Ratable Shares thereof,
provided that all interest payable on the Swingline Loans shall be for the
account of Swingline Lender until the date the Mandatory Borrowing is made
or
the date the applicable Lender has purchased its participation interest, as
the
case may be, and, to the extent attributable to the Mandatory Borrowing for
such
participation interest, shall be payable to the Lender making such Mandatory
Borrowing or purchasing such participation interest from and after the date
such
Mandatory Borrowing is made or such participation interest is
purchased.
Whenever,
at any time after Swingline Lender has received from any Lender such Lender’s
assigned interest in a Swingline Loan and Swingline Lender receives any payment
on account thereof Swingline Lender will distribute to such Lender its assigned
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender’s assigned
interest was outstanding and funded); provided, however, that in the event
that
such payment received by Swingline Lender is required to be returned, such
Lender will return to Swingline Lender any portion thereof previously
distributed by Swingline Lender to it.
The
Facility L/Cs.
So long as no Default or Event of Default exists, JPMorgan Chase Bank and each
other Lender that is designated as an LC Issuer in this Agreement or in
accordance with subsection 2.14(a) hereof, agree to issue Facility L/Cs, on
the
terms and conditions hereof, provided that (a) the aggregate of all Facility
L/C
Obligations at any one time outstanding shall not exceed One Hundred Million
Dollars ($100,000,000) and (b) the sum of the aggregate amount of all Loans
and
the aggregate amount of all Facility L/C Obligations at any one time outstanding
shall not exceed the Aggregate Commitment.
Designation
or Resignation of LC Issuer.
Upon
request by Borrower and approval by Agent, a Lender may at any time agree to
be
designated as an LC Issuer hereunder, which designation shall be set forth
in a
written instrument or instruments delivered by Borrower, Agent and such Lender.
Agent shall promptly notify the other Lenders of such designation. From and
after such designation and unless and until such Lender resigns as an LC Issuer
in accordance with subsection 2.14(b) below, such Lender shall have all of
the
rights and obligations of an LC Issuer hereunder.
An
LC
Issuer shall continue to be an LC Issuer unless and until (i) it shall have
given Borrower and Agent notice that it has elected to resign as LC Issuer
and
(ii) unless there is, at the time of such notice, at least one other LC Issuer,
another Lender shall have agreed to be the replacement LC Issuer and shall
have
been approved in writing by Agent and Borrower. A resigning LC Issuer shall
continue to have the rights and obligations of the LC Issuer hereunder solely
with respect to Facility L/Cs theretofore issued by it, notwithstanding the
designation of a replacement LC Issuer hereunder, but upon its notice of
resignation (or, if at the time of such notice, there is not at least one other
LC Issuer, then upon such designation of a replacement LC Issuer), the resigning
LC Issuer shall not thereafter issue any Facility L/C (unless it shall again
thereafter be designated as an LC Issuer in accordance with the provisions
of
this subsection 2.14). The assignment of, or grant of a participation interest
in, all or any part of its Commitment or Loans by a Lender that is also an
LC
Issuer shall not constitute an assignment or transfer of any of its rights
or
obligations as an LC Issuer.
Issuance
of Facility L/Cs.
Borrower
may request an LC Issuer to issue a Facility L/C by delivering to such LC Issuer
(with a copy to Agent if Agent is not the LC Issuer), no later than 11:00 a.m.
(local time at the LC Issuer’s office designated herein) two (2) Business Days
prior to the date on
which
issuance of the Facility L/C is requested by Borrower, a standby letter of
credit application and reimbursement agreement in LC Issuer’s then customary
form (the “Facility
L/C Application”)
completed to the satisfaction of LC Issuer, together with the proposed form
of
such letter of credit (which shall comply with the applicable requirements
of
subsection 2.15(b) below) and such other certificates, documents and other
papers and information as LC Issuer may reasonably request.
Each
Facility L/C issued hereunder shall, among other things, (i) be in such form
requested by Borrower as shall be acceptable to the LC Issuer in its sole
discretion, and (ii) have an expiry date (taking into account any automatic
renewal provisions thereof) occurring not later than thirty (30) days prior
to
the Maturity Date. If the Aggregate Commitment is terminated (whether by
acceleration, demand, or otherwise), then, not later than simultaneously with
such termination, all outstanding Facility L/Cs shall be returned to the LC
Issuer thereof or Borrower shall cash collateralize all outstanding Facility
L/Cs in accordance with Section 8 hereof. Each Facility L/C Application and
each
Facility L/C shall be subject to the Uniform Customs and, to the extent not
inconsistent therewith, the laws of the state in which is located the LC
Issuer’s office from which such Facility L/C is issued.
An
LC
Issuer shall not issue, amend or extend, at any time, any Facility
L/C:
(i) if
the
aggregate maximum amount then available for drawing under Letters of Credit
issued by such LC Issuer, after giving effect to the Facility L/C or amendment
or extension thereof requested hereunder, shall exceed any limit imposed by
law
or regulation upon such LC Issuer;
(ii) if,
after
giving effect to the issuance, amendment or extension of the Facility L/C
requested hereunder, the aggregate principal amount of the Facility L/C
Obligations would exceed One Hundred Million Dollars
($100,000,000);
(iii) if,
after
giving effect to the issuance, amendment or extension of the Facility L/C
requested hereunder, Borrowing Base Indebtedness would exceed the Borrowing
Base
as of the most recent Inventory Valuation Date;
(iv) if,
after
giving effect to the issuance, amendment or extension of the Facility L/C
requested hereunder, the sum of (A) the outstanding and unpaid principal amount
of the Loans and (B) the Facility L/C Obligations would exceed the Aggregate
Commitment;
(v) if
such
LC Issuer receives written notice from the Agent at or before 12:00 noon New
York time on the proposed date of issuance, amendment or extension of such
Facility L/C that one or more of the conditions precedent contained in
subsection 2.15(d) below would not on such date be satisfied, unless such
conditions are thereafter satisfied or waived and written notice of such
satisfaction is given to such LC Issuer by the Agent; or
(vi) that
is
in a currency other than Dollars.
The
issuance, amendment or extension of any Facility L/C is subject to the
satisfaction in full of the following conditions on the date of such issuance,
amendment or extension:
(i) the
conditions of subsection 5.2 hereof are satisfied; and
(ii) no
order,
judgment or decree of any court, arbitrator or governmental authority shall
enjoin or restrain such LC Issuer from issuing the Facility L/C and no law,
rule
or regulation applicable to the LC Issuer and no directive from any governmental
authority with jurisdiction over the LC Issuer shall prohibit such LC Issuer
from issuing Letters of Credit generally or from issuing that Facility
L/C.
Upon
receipt of any Facility L/C Application from Borrower, the LC Issuer will
process such Facility L/C Application, and the other certificates, documents
and
other papers delivered to such LC Issuer in connection therewith, in accordance
with its customary procedures and, upon satisfaction of all conditions contained
in this Agreement, shall promptly issue the original of such Facility L/C and
deliver it to the beneficiary thereof, or to Borrower which shall deliver such
original Facility L/C to the beneficiary, and furnish a copy thereof to
Borrower. The LC Issuer shall give Agent written notice, or telephonic notice
confirmed promptly thereafter in writing, of the issuance of a Facility L/C,
and
Agent shall promptly thereafter so notify all Lenders.
No
LC
Issuer shall extend or amend any Facility L/C unless the requirements of this
subsection 2.15 are met as though a new Facility L/C were being requested and
issued.
Any
Lender may, but shall not be obligated to, issue to Borrower or any of its
Subsidiaries Letters of Credit (that are not Facility L/Cs) for its own account,
and at its own risk.
Facility
L/C Participations.
Each
LC
Issuer irrevocably agrees to grant and hereby grants to each Lender, and, to
induce the LC Issuers to issue Facility L/Cs hereunder, each Lender irrevocably
agrees to accept and purchase and hereby accepts and purchases from the
applicable LC Issuer, on the terms and conditions hereinafter stated, for such
Lender’s own account and risk, an undivided interest equal to such Lender’s
Ratable Share in such LC Issuer’s obligations and rights under each Facility L/C
(including the Existing L/Cs) and the amount of each draft paid by such LC
Issuer.
Upon
receipt from the beneficiary of any Facility L/C of any demand for payment
under
such Facility L/C, the LC Issuer shall notify Agent and Agent shall promptly
notify Borrower and each other Lender as to the amount to be paid by such LC
Issuer as a result of such demand and the proposed payment date. The
responsibility of the LC Issuer to Borrower and each Lender shall be only to
determine that the documents (including each demand for
payment)
delivered under each Facility L/C in connection with such presentment shall
be
in conformity in all material respects with such Facility L/C. The LC Issuer
shall exercise the same care in the issuance and administration of the Facility
L/Cs as it does with respect to Letters of Credit in which no participations
are
granted, it being understood that, in the absence of any gross negligence or
willful misconduct by the LC Issuer, each Lender shall be unconditionally and
irrevocably liable without regard to the occurrence of an Event of Default
or
any condition precedent whatsoever, to reimburse the LC Issuer on demand for
(i)
such Lender’s Ratable Share of the amount of each payment made by the LC Issuer
on each Facility L/C to the extent such amount is not reimbursed by Borrower
pursuant to subsection 2.17 hereof, plus interest thereon to the extent provided
in subsection 2.16(c) below.
If
any
amount required to be paid by any Lender to an LC Issuer in respect of any
unreimbursed portion of any payment made by such LC Issuer under any Facility
L/C is not paid to such LC Issuer on the date such payment is due but is paid
within three (3) Business Days after such payment is due, such Lender shall
pay
to such LC Issuer on demand an amount equal to the product of (i) such amount,
multiplied by (ii) the daily average Federal Funds Rate during the period from
and including the date such payment is required to the date on which such
payment is immediately available to such LC Issuer, multiplied by (iii) a
fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. If any such amount required to
be
paid by any Lender pursuant to this subsection 2.16 is not paid to such LC
Issuer by such Lender within three (3) Business Days after the date such payment
is due, such LC Issuer shall be entitled to recover from such Lender, on demand,
such amount with interest thereon calculated from the fourth Business Day after
such due date until paid at the rate per annum applicable to Loans made as
ABR
Loans hereunder. A certificate of such LC Issuer submitted to any Lender with
respect to any amounts owing under this subsection 2.16 shall be conclusive
in
the absence of manifest error.
Whenever,
at any time after such LC Issuer has made payment under any Facility L/C and
has
received from any Lender its Ratable Share of such payment, such LC Issuer
receives any payment related to such Facility L/C (whether directly from
Borrower or otherwise, including proceeds of collateral applied thereto by
such
LC Issuer), or any payment of interest on account thereof, such LC Issuer will
distribute to such Lender its Ratable Share thereof; provided, however, that
in
the event that any such payment received by such LC Issuer shall be required
to
be returned by such LC Issuer, such Lender shall return to such LC Issuer the
portion thereof previously distributed by such LC Issuer to it.
Payments.
Borrower agrees (a) to reimburse each LC Issuer, for the pro rata benefit of
the
Lenders in accordance with each Lender’s respective Ratable Share, forthwith
upon its or Agent’s demand and otherwise in accordance with the terms of the L/C
Application relating thereto, for any expenditure or payment made by such LC
Issuer under any Facility L/C, and (b) to pay interest on any unreimbursed
portion of any such payments from the date of such payment until reimbursement
in full thereof at a rate per annum equal to (i) prior to the date which is
(A)
one (1) Business Day after the day on which such LC Issuer demands reimbursement
from Borrower for such payment if such demand is made prior to 11:00 a.m.,
New
York time or (B) two (2) Business Days after the day on which
such
LC
Issuer or Agent demands reimbursement if such demand is made at or after 11:00
a.m. New York time, the rate which would then be payable on any outstanding
ABR
Loan which is not in default, and (ii) thereafter, the rate which would then
be
payable on any outstanding ABR Loan which is in default.
Facility
L/C Fees.
In lieu of any letter of credit commissions and fees provided for in any
Facility L/C Application (other than standard issuance, amendment, negotiation
and administration fees and expenses), Borrower agrees to pay Agent, in the
case
of each Facility L/C, for the account of the Lenders and LC Issuer (as
hereinafter provided), the Facility L/C Fee therefor, on the average daily
undrawn stated amount under such Facility L/C. The Facility L/C Fees shall
be
due and payable quarterly in arrears not later than the day
(“Quarterly
Payment Date”)
that is five (5) Business Days following Agent’s delivery to Borrower of the
quarterly statement of Facility L/C Fees and, to the extent any such fees are
then accrued and unpaid, on the Maturity Date. Facility L/C Fees shall be
calculated, for the period to which such payment applies, for actual days on
which such Facility L/C was outstanding during such period (excluding, in the
case of the Existing L/Cs, the portion of such period prior to the date of
this
Agreement), on the basis of a 360-day year. Agent shall promptly remit such
Facility L/C Fees, when paid, as follows: (i) to each LC Issuer, solely for
its
own account, with respect to each Facility L/C issued by such LC Issuer, an
amount per annum equal to the product of (A) 0.125% per annum and (B) the face
amount of such Facility L/C and (ii) to all Lenders, their Ratable Shares of
the
balance of such Facility L/C Fees. In addition, an LC Issuer may charge and
retain for its own account, and Borrower agrees to pay, such LC Issuer’s usual
and customary charges with respect to the issuance, amendment, negotiation
and
administration of the Facility L/C.
Letter
of Credit Reserves.
If any change in any law or regulation or in the interpretation or application
thereof by any court or other governmental authority charged with the
administration thereof shall either (a) impose, modify, deem or make applicable
any reserve, special deposit, assessment or similar requirement against letters
of credit issued by an LC Issuer, or (b) impose on an LC Issuer or any Lender
any other condition regarding this Agreement or any Facility L/C, and the result
of any event referred to in clause (a) or (b) above shall be to increase the
cost to an LC Issuer or any Lender of issuing or maintaining any Facility L/C
(which increase in cost shall be the result of an LC Issuer’s or any Lender’s
reasonable allocation of the aggregate of such cost increases resulting from
such events), then, upon demand by an LC Issuer or any Lender, Borrower shall
immediately pay to Agent, for the pro rata benefit of such Lender(s), from
time
to time as specified by Agent or such Lender(s), additional amounts which shall
be sufficient to compensate Agent or such Lender(s) for such increased cost,
together with interest on each such amount from the date demanded until payment
in full thereof at a rate per annum equal to the then applicable interest rate
on ABR
Loans.
A certificate as to such increased cost incurred by an LC Issuer or such
Lender(s), submitted by an LC Issuer or such Lender(s) to Borrower, shall be
conclusive, absent manifest error, as to the amount thereof. This provision
shall survive the termination of this Agreement and shall remain in full force
and effect until there is no existing or future obligation of any LC Issuer
or
any Lender under any Facility L/C.
Further
Assurances.
Borrower hereby agrees to do and perform any and all acts and to execute any
and
all further instruments reasonably requested by Agent or an LC Issuer more
fully
to effect the purposes of this Agreement and the issuance of Facility L/Cs
hereunder, and further agrees to execute any and all instruments reasonably
requested by an LC Issuer in connection with the obtaining and/or maintaining
of
any insurance coverage applicable to any Facility L/C.
Obligations
Absolute.
The
obligations of the other Lenders to an LC Issuer with respect to Facility L/Cs
issued by such LC Issuer, and the Reimbursement Obligations of Borrower with
respect to Facility L/Cs, under this Agreement shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including without limitation the
following:
the
existence of any claim, set-off, defense or other right which Borrower may
have
at any time against any beneficiary, or any transferee, of any Facility L/C
(or
any Persons for whom any such beneficiary or any such transferee may be acting),
any LC Issuer or any other Person, whether in connection with this Agreement,
the transaction contemplated herein, or any unrelated transaction (including
any
underlying transaction between Borrower or any Subsidiary and the beneficiary
of
such Facility L/C);
any
draft, certificate, statement or any other document presented under any Facility
L/C proving to be forged, fraudulent, invalid or insufficient in any respect
or
any statement therein being untrue or inaccurate in any respect;
payment
by an LC Issuer under any Facility L/C against presentation of a draft or
certificate which does not comply with the terms of such Facility L/C, provided
that LC Issuer has made such payment to the beneficiary set forth on the face
of
such Facility L/C;
the
occurrence or any Default or Event of Default; or
any
other
circumstances or happening whatsoever, whether or not similar to any of the
foregoing.
Each
LC
Issuer shall be entitled to rely, and shall be fully protected in relying,
upon
any Facility L/C, draft, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other
document
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons, and upon advice and statements of legal
counsel, independent accountants and other experts selected by such LC Issuer.
Each LC Issuer shall be fully justified in failing or refusing to take any
action under this Agreement unless it shall first have received such advice
or
concurrence of the Required Lenders as it reasonably deems appropriate or it
shall first be indemnified to its reasonable satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take such action. Notwithstanding any other provision
of
this subsection 2.21, each LC Issuer shall in all cases be fully protected
in
acting, or in refraining from acting, under this Agreement in accordance with
a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon the Lenders and any future
holders of a participation in any Facility L/Cs.
LC
Issuer Reporting Requirements.
Each LC Issuer shall, no later than the third (3rd)
Business Day following the last day of each month, provide to Agent a schedule
of the Facility L/Cs issued by it showing the issuance date, account party,
original face amount, amount (if any) paid thereunder, expiration date and
the
reference number of each Facility L/C outstanding at any time during such month
(and whether it is a Financial Letter of Credit or Performance Letter of Credit)
and the aggregate amount (if any) payable by the Borrower to such LC Issuer
during the month pursuant to subsection 2.19 hereof. Copies of such reports
shall be provided promptly to each Lender by the Agent. The Agent shall, with
reasonable promptness following receipt from all LC Issuers of the reports
provided for in this subsection 2.22 for the months of March, June, September
and December, respectively, deliver to the Borrower (with a copy to each Lender)
a quarterly statement of the Facility L/C Fees and Commitment Fees then due
and
payable.
Indemnification;
Nature of LC Issuer’s Duties.
In
addition to amounts payable as elsewhere provided in this Agreement, Borrower
hereby agrees to protect, indemnify, pay and save Agent, each LC Issuer and
each
Lender harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable attorneys’
fees) arising from the claims of third parties against Agent, any LC Issuer
or
any Lender as a consequence, direct or indirect, of (i) the issuance of any
Facility L/C other than, in the case of an LC Issuer, as a result of its willful
misconduct or gross negligence, or (ii) the failure of an LC Issuer to honor
a
drawing under a Facility L/C Credit as a result of any act or omission, whether
rightful or wrongful, of any court or other Governmental Authority.
As
among
Borrower, Lenders, Agent and each LC Issuer, Borrower assumes all risks of
the
acts and omissions of, or misuse of Facility L/Cs by, the respective
beneficiaries of such Facility L/Cs. In furtherance and not in limitation of
the
foregoing, neither an LC Issuer nor Agent nor any Lender shall be responsible
(other than, in the case of an LC Issuer, as a result of its gross negligence
or
willful misconduct): (i) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection
with the application for and issuance of the Facility L/Cs, even if it should
in
fact
prove
to
be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) for the validity or sufficiency of any instrument transferring
or
assigning or purporting to transfer or assign a Facility L/C or the rights
or
benefits thereunder or proceeds thereof, in whole or in part, which may prove
to
be invalid or ineffective for any reason; (iii) for failure of the beneficiary
of a Facility L/C to comply fully with conditions required in order to draw
upon
such Facility L/C; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex,
facsimile transmission or otherwise; (v) for errors in interpretation of
technical terms; (vi) for any loss or delay in the transmission or otherwise
of
any document required in order to make a drawing under any Facility L/C or
of
the proceeds thereof; (vii) for the misapplication by the beneficiary of a
Facility L/C of the proceeds of any drawing under such Facility L/C; or (viii)
for any consequences arising from causes beyond the control of Agent, such
LC
Issuer and the Lenders including, without limitation, any act or omission,
whether rightful or wrongful, of any government, court or other governmental
agency or authority. None of the above shall affect, impair, or prevent the
vesting of any of such LC Issuer’s rights or powers under this subsection
2.23.
In
furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by an LC Issuer under or
in
connection with the Facility L/Cs issued by it or any related certificates,
if
taken or omitted in good faith, shall not put such LC Issuer, Agent or any
Lender under any resulting liability to Borrower or relieve Borrower of any
of
its Obligations hereunder to any such Person.
Notwithstanding
anything to the contrary contained in this subsection 2.23, Borrower shall
have
no obligation to indemnify an LC Issuer under this subsection 2.23 in respect
of
any liability incurred by an LC Issuer arising out of the wrongful dishonor
by
such LC Issuer of a proper demand for payment made under the Facility L/Cs
issued by such LC Issuer, unless such dishonor was made at the request of
Borrower.
GENERAL
PROVISIONS APPLICABLE TO LOANS
Conversion/Continuation
Options.
Subject to the limitations on the availability of Eurodollar Rate Loans,
Borrower may elect from time to time to convert outstanding Revolving Credit
Loans from ABR Loans to Eurodollar Rate Loans or to continue any Eurodollar
Rate
Loan as such upon the expiration of the then current Interest Period thereof
by
giving the Agent telephonic or written (which may be by electronic mail) notice
(the “Notice
of Conversion/Continuation”),
which Notice of Conversion/Continuation must be received prior to 12:00 noon,
New York time, at least three (3) Business Days prior to the requested date
for
the conversion or continuation, which notice shall specify (i) the date for
the
conversion or continuation (which shall be a Business Day); (ii) the aggregate
amount of ABR Loans to be converted or Eurodollar Rate Loans to be continued;
and (iii) for each such ABR Loan to be converted to a Eurodollar Rate Loan
and
Eurodollar Rate Loan to be continued as a Eurodollar Rate Loan, the respective
amount and the respective length of the initial Interest Period. Each conversion
from ABR Loans to Eurodollar Rate Loans and each continuation of Eurodollar
Rate
Loans shall be in
the
principal amount of $10,000,000 or any larger amount which is an even multiple
of $1,000,000. After Borrower gives the Notice of Conversion/Continuation
requesting continuation of a Eurodollar Rate Loan, Agent, by 10:00 a.m., New
York time, two Business Days prior to the end of the Interest Period, shall
advise Borrower of the applicable interest rate(s) (which is the sum of the
applicable Eurodollar Rate(s) and the Applicable Eurodollar Margin) for the
Eurodollar Rate Loan(s) and Interest Period(s) requested in such notice. Not
more than two hours thereafter, Borrower shall give Agent written irrevocable
confirmation of whether or not Borrower wants to continue the Eurodollar Rate
Loan(s) as such and, if so, the amount and the Interest Period for each such
Eurodollar Rate Loan. If Borrower’s confirmation is not timely made, Borrower
shall be deemed to have withdrawn Borrower’s notice for a continuation and the
Eurodollar Rate Loan(s) that were the subject of such request shall convert
automatically to an ABR Loan upon the expiration of the then current Interest
Period. If Borrower’s written confirmation is timely made, Borrower shall be
deemed to be requesting a continuation of the Eurodollar Rate Loan(s) in the
amount(s) and for the Interest Period(s) stated in such notice. Agent shall
give
prompt telephonic or written notice to each Lender of Borrower’s request for
conversion or continuation, specifying (i) the date for the conversion or
continuation; (ii) the aggregate amount of ABR Loans to be converted or
Eurodollar Rate Loan to be continued; and (iii) for each such ABR Loan to be
converted to a Eurodollar Rate Loan and each continuation of any Eurodollar
Rate
Loan, the respective amount, the respective Eurodollar Rate, and the respective
length of the initial Interest Period applicable thereto. All or any part of
outstanding ABR Loans may be converted or Eurodollar Rate Loans continued as
provided herein, provided that (i) (unless the Required Lenders otherwise
consent) no ABR Loan may be converted into a Eurodollar Rate Loan nor any
Eurodollar Rate Loan continued as a Eurodollar Rate Loan upon the expiration
of
the current Interest Period therefor when any Default or Event of Default has
occurred and is continuing and (ii) no ABR Loan may be converted into a
Eurodollar Rate Loan nor any Eurodollar Rate Loan continued as a Eurodollar
Rate
Loan upon the expiration of the current Interest Period therefor after the
date
that is one month prior to the last day of the Commitment
Period.
Inability
to Determine Interest Rate.
If prior to the first day of any Interest Period, the Agent or the Required
Lenders shall have determined (which determination shall be conclusive and
binding upon Borrower) that, by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period, the Agent shall give telecopy,
telephonic or written notice thereof to Borrower and the Lenders as soon as
practicable thereafter. If such notice is given (x) any Eurodollar Rate Loans
requested to be made on the first day of such Interest Period shall be made
as
ABR Loans and (y) any Loans that were to have been converted on the first day
of
such
Interest
Period to or continued as Eurodollar Rate Loans shall be converted to or
continued as ABR Loans. Until such notice has been withdrawn by the Agent,
no
further Eurodollar Rate Loans shall be made or continued as such, nor shall
Borrower have the right to convert ABR Loans to Eurodollar Rate
Loans.
Availability
of Eurodollar Rate Loans.
If any Lender determines that maintenance of its Eurodollar Rate Loans at a
suitable Lending Installation would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, or if the
Required Lenders determine that (i) deposits of a type and maturity appropriate
to match fund Eurodollar Rate Loans are not available or (ii) the interest
rate
applicable to Eurodollar Rate Loans does not accurately reflect the cost of
making or maintaining Eurodollar Rate Loans, then the Agent shall suspend the
availability of Eurodollar Rate Loans and require any affected Eurodollar Rate
Loans to be repaid or converted to ABR Loans at the end of the applicable
Interest Period.
Requirements
of Law.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender, or its
applicable Lending Installation, branch or any affiliate thereof, or any LC
Issuer or compliance by any Lender, or its applicable Lending Installation,
branch or any affiliate thereof, or any LC Issuer with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority, in each case made subsequent to the date hereof (or,
if
later, the date on which such Lender becomes a Lender hereunder pursuant to
any
permitted assignment or pursuant to subsection 2.6(b)
hereof):
shall
subject such Lender, or its applicable Lending Installation, branch or any
affiliate thereof, or any LC Issuer to any tax of any kind whatsoever with
respect to any Eurodollar Rate Loans made by it or its obligation to make
Eurodollar Rate Loans, or to issue or to participate in Facility L/Cs, or change
the basis of taxation of payments to such Lender or LC Issuer in respect thereof
and changes in taxes measured by or imposed upon the overall net income, or
franchise taxes, or taxes measured by or imposed upon overall capital or net
worth, or branch taxes (in the case of such capital, net worth or branch taxes,
imposed in lieu of such net income tax), of such Lender or its applicable
Lending Installation, branch, or any affiliate thereof or any LC
Issuer;
shall
impose, modify or hold applicable any reserve, special deposit, compulsory
loan
or similar requirement against assets held by, deposits or other liabilities
in
or for the account of, advances, loans or other extensions of credit by, or
any
other acquisition of funds by, any office of such Lender or any LC Issuer which
is not otherwise included in the determination of the Eurodollar Rate hereunder;
or
shall
impose any other condition the result of which is or would be to increase the
cost to the Lender or any applicable Lending Installation or LC Issuer of
making, funding or maintaining its Eurodollar Rate Loans or issuing or
participating in Facility L/Cs or
shall
reduce any amount receivable by any Lender or any applicable Lending
Installation or LC Issuer in connection with its Eurodollar Rate Loans or
Facility L/Cs or participations therein, or shall require any Lender or any
applicable Lending Installation or LC Issuer to make any payment calculated
by
reference to the amount of Eurodollar Rate Loans or Facility L/Cs or
participations therein held or interest received by it, by an amount deemed
material by such Lender;
and
the
result of any of the foregoing is or would be to increase the cost to such
Lender or LC Issuer, by an amount which such Lender or LC Issuer, or its
applicable Lending Installation, branch or any affiliate thereof, deems to
be
material, of making, converting into, continuing or maintaining Eurodollar
Rate
Loans or its Commitment or of issuing or participations in any Facility L/Cs
or
to reduce any amount receivable hereunder in respect thereof, then, in any
such
case, upon notice to Borrower from such Lender, through the Agent, in accordance
herewith, Borrower shall promptly pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender or LC Issuer for such
increased cost or reduced amount receivable. If any Lender becomes entitled
to
claim any additional amounts pursuant to this subsection, it shall provide
prompt notice thereof to Borrower, through the Agent, certifying (x) that one
of
the events described in this subsection has occurred and describing in
reasonable detail the nature of such event, (y) as to the increased cost or
reduced amount receivable hereunder resulting from such event and (z) as to
the
additional amount demanded by such Lender and a reasonably detailed explanation
of the calculation thereof. Such a certificate as to any additional amounts
payable pursuant to this subsection submitted by such Lender, through the Agent,
to Borrower shall be conclusive and binding upon the Borrower in the absence
of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable
hereunder.
Indemnity.
Borrower agrees to indemnify each Lender and to hold each Lender harmless from
any loss or expense which such Lender may sustain or incur (other than through
such Lender’s gross negligence or willful misconduct) as a consequence of (a)
default by Borrower in making a borrowing of, conversion into or continuation
of
Eurodollar Rate Loans after Borrower has given Agent written irrevocable
confirmation that Borrower selects such Eurodollar Rate Loans in accordance
with
subsection 2.3 or subsection 3.1 hereof, as appropriate, of this Agreement,
(b)
default by Borrower in making any prepayment or conversion of a Eurodollar
Rate
Loan after Borrower has given a notice thereof in accordance with the provisions
of this Agreement or (c) the making of a prepayment of Eurodollar Rate Loans
on
a day which is not the last day of an Interest Period with respect thereto
(whether by acceleration, demand or otherwise). Such indemnification may
include, without limitation, an amount equal to the excess, if any, of (i)
the
amount of interest which would have accrued on the amount so prepaid, or
converted, or not so borrowed, converted or continued, for the period from
the
date of such prepayment or conversion or of such failure to borrow, convert
or
continue to the last day of the applicable Interest Period (or, in the case
of a
failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate
of
interest for such Eurodollar Rate
Loans
provided for herein over (ii) the amount of interest (as reasonably determined
by such Lender, which determination shall be conclusive and binding upon
Borrower, absent manifest error) which would have accrued to such Lender on
such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank eurodollar market. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
Taxes.
All
payments by Borrower to or for the account of any Lender, any LC Issuer or
Agent
hereunder or under any Note or Facility L/C Application shall be made free
and
clear of and without deduction for any and all Taxes. If Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender, any LC Issuer or Agent, (i) the sum payable shall
be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this subsection 3.6)
such
Lender, LC Issuer or Agent (as the case may be) receives an amount equal to
the
sum it would have received had no such deductions been made, (ii) Borrower
shall
make such deductions, (iii) Borrower shall pay the full amount deducted to
the
relevant Governmental Authority in accordance with applicable law and (iv)
Borrower shall furnish to the Agent the original copy of a receipt evidencing
payment thereof within 30 days after such payment is made.
In
addition, Borrower hereby agrees to pay any present or future stamp or
documentary taxes and any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under any Note or Facility
L/C Application or from the execution or delivery of, or otherwise with respect
to, this Agreement or any Note or Facility L/C Application (“Other
Taxes”).
Borrower
hereby agrees to indemnify each Lender, LC Issuer and Agent for the full amount
of Taxes or Other Taxes as set forth in subsections 3.6(a) and (b) (including,
without limitation, any Taxes or Other Taxes imposed on amounts payable under
this subsection 3.6) paid by such Lender, LC Issuer or Agent and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within thirty
(30) days of the date such Lender, LC Issuer or Agent makes demand therefor
pursuant to subsection 3.7, which demand shall be made not later than 180 days
after such Lender, Agent or LC Issuer incurs the Taxes, Other Taxes or other
liability so arising.
Each
Lender that is not incorporated (or otherwise formed or established) under
the
laws of the United States of America or a state thereof (each a “Non-U.S.
Lender”)
agrees
that it will, not more than ten (10) Business Days after the date of this
Agreement or such later date on which it becomes a party to this Agreement
(but
in no event later than the first date on which any payment for the account
of
such Non-U.S. Lender is made hereunder), (i) deliver to each of Borrower and
Agent two duly completed copies of United States Internal Revenue Service Form
W-8BEN or W-8ECI, certifying in either case that such Lender is entitled to
receive payments under this Agreement without deduction or withholding of any
United States
federal
income taxes, and (ii) deliver to each of Borrower and Agent a United States
Internal Revenue Form W-8 or W-9, as the case may be, and certify that it is
entitled to an exemption from United States backup withholding tax. Each
Non-U.S. Lender further undertakes to deliver to each of Borrower and Agent
(x)
renewals or additional copies of such form (or any successor form) on or before
the date that such form expires or becomes obsolete, and (y) after the
occurrence of any event requiring a change in the most recent forms so delivered
by it, such additional forms or amendments thereto as may be reasonably
requested by Borrower or Agent. All forms or amendments described in the
preceding sentence shall certify that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, unless an event (including without limitation
any
change in treaty, law or regulation) has occurred subsequent to the date such
Lender became a party to this Agreement but prior to the date on which any
such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any
such
form or amendment with respect to it and such Lender advises the Borrower and
Agent that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
For
any
period during which a Non-U.S. Lender has failed to provide the Borrower with
an
appropriate form pursuant to subsection 3.6(d) above (unless such failure is
due
to a change in treaty, law or regulation, or any change in the interpretation
or
administration thereof by any Governmental Authority, occurring subsequent
to
the date on which a form originally was required to be provided), such Non-U.S.
Lender shall not be entitled to indemnification under this subsection 3.6 with
respect to Taxes imposed by the United States; provided
that,
should a Non-U.S. Lender which is otherwise exempt from or subject to a reduced
rate of withholding tax become subject to Taxes because of its failure to
deliver a form required under subsection 3.6(d) above, Borrower shall take
such
steps as such Non-U.S. Lender shall reasonably request to assist such Non-U.S.
Lender to recover such Taxes.
Any
Lender that is entitled to an exemption from or reduction of withholding tax
with respect to payments under this Agreement or any Note pursuant to the law
of
any relevant jurisdiction or any treaty shall deliver to Borrower (with a copy
to Agent), at the time or times prescribed by applicable law and prior to the
date of any applicable payment, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to
be
made without withholding or at a reduced rate of withholding.
If
the
U.S. Internal Revenue Service or any other Governmental Authority of the United
States or any other country or any political subdivision thereof asserts a
claim
that Agent did not properly withhold tax from amounts paid to or for the account
of any Lender (because the appropriate form was not delivered or properly
completed, because such Lender failed to notify Agent of a change in
circumstances which rendered its exemption from withholding ineffective, or
for
any other reason), such Lender shall indemnify Agent fully for all amounts
paid,
directly or indirectly, by Agent as tax, withholding therefor, or otherwise,
including penalties and interest, and including taxes imposed by any
jurisdiction on amounts payable to Agent under this subsection, together with
all costs and expenses related thereto (including attorneys fees and time
charges of attorneys for Agent, which attorneys may be employees of Agent).
The
obligations of the Lenders under this subsection 3.6(g) shall survive the
payment of the Obligations and termination of this Agreement.
Lender
Statements; Survival of Indemnity.
To the
extent reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurodollar Loans to reduce any liability of
Borrower to such Lender under subsections 2.9 and 3.4 or to avoid the
unavailability of Eurodollar Advances under subsection 3.3, so long as such
designation is not, in the judgment of such Lender, disadvantageous to such
Lender. Each Lender shall deliver a written statement of such Lender to Borrower
(with a copy to Agent) as to the amount due, if any, under subsection 2.9,
3.4,
3.5 or 3.6. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on Borrower in the absence of manifest error.
Determination of amounts payable under such subsections in connection with
a
Eurodollar Rate Loan shall be calculated as though each Lender funded its
Eurodollar Rate Loan through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in determining the Eurodollar
Rate applicable to such Loan, whether in fact that is the case or not. Unless
otherwise provided herein, the amount specified in the written statement of
any
Lender shall be payable on demand after receipt by Borrower of such written
statement. The obligations of the Borrower under subsections 2.9, 3.4, 3.5
and
3.6 shall survive payment of the Obligations and termination of this
Agreement.
Telephonic
Notices.
Borrower hereby authorizes the Lenders and Agent to extend, convert or continue
Loans, to effect selections of Eurodollar Rate Loans and the Interest Period
thereof and ABR Loans and to transfer funds, in each case based on telephonic
notices made by any Person or Persons who Agent or any Lender in good faith
believes to be acting on behalf of Borrower, it being understood that the
foregoing authorization is specifically intended to allow Notices of Borrowing
and Notices of Conversion to be given telephonically. Borrower agrees to deliver
promptly to Agent a written confirmation, if such confirmation is requested
by
Agent or any Lender, of each telephonic notice signed by a Responsible Officer.
If the written confirmation differs in any material respect from the action
taken by Agent and Lenders, the records of Agent and Lenders shall govern,
absent manifest error.
Non-Receipt
of Funds by Agent.
Unless Borrower or a Lender, as the case may be, notifies Agent prior to the
date on which it is scheduled to make payment to Agent of (i) in the case of
a
Lender, the proceeds of a Loan or (ii) in the case of Borrower, a payment of
principal, interest or fees to Agent for the account of the Lenders, that it
does not intend to make such payment, Agent may assume that such payment has
been made. Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption.
If
such Lender or Borrower, as the case may be, has not in fact made such payment
to Agent, the recipient of such payment shall, on demand by Agent, repay to
Agent the amount so made available together with interest thereon in respect
of
each day during the period commencing on the date such amount was so made
available by Agent until the date Agent recovers such amount at a rate per
annum
equal to (x) in the case of payment by a Lender, the Federal Funds Rate for
such
day for the first three days and, thereafter, the interest rate applicable
to
the relevant
Loan or (y) in the case of payment by Borrower, the interest rate applicable
to
the relevant Loan.
Replacement
of Certain Lenders.
In the event a Lender (“Affected
Lender”):
(i) shall have requested compensation from Borrower under subsections 2.9 or
3.4
hereof to recover additional costs incurred by such Lender that are not being
incurred generally by the other Lenders, (ii) shall have delivered a notice
pursuant to subsection 3.3 hereof claiming that such Lender is unable to extend
Eurodollar Rate Loans to Borrower for reasons not generally applicable to the
other Lenders, (iii) shall have invoked subsection 11.17 hereof or (iv) is
a
Rejecting Lender, then, in any such case, Borrower or Agent may make written
demand on such Affected Lender (with a copy to Agent in the case of a demand
by
Borrower and a copy to Borrower in the case of a demand by Agent) for the
Affected Lender to assign, and, if a Replacement Lender (as hereinafter defined)
notifies the Affected Lender of its willingness to purchase the Affected
Lender’s interest and Agent and Borrower consent thereto in writing, then such
Affected Lender shall assign pursuant to one or more duly executed assignment
and assumption agreements in substantially and in all material respects in
the
form and substance of Exhibit
H
five (5) Business Days after the date of such demand, to one or more Lenders
or
Eligible Assignees that Borrower or Agent, as the case may be, shall have
engaged for such purpose (“Replacement
Lender”),
all of such Affected Lender’s rights and obligations (from and after the date of
such assignment) under this Agreement and the other Loan Documents (including,
without limitation, its Commitment and all Loans owing to it) in accordance
with
subsection 11.7(b) hereof. As a condition to any such assignment, the Affected
Lender shall concurrently receive in cash or by wire transfer, all amounts
due
and owing to the Affected Lender hereunder or under any other Loan Document,
including, without limitation, the aggregate outstanding principal amount of
the
Loans owed to such Lender, together with accrued interest thereon through the
date of such assignment, amounts payable under subsections 2.9, 3.4, 3.5, 3.6,
11.6 or 11.14 hereof with respect to such Affected Lender and the fees payable
to such Affected Lender under subsections 2.4 and 2.18 hereof; provided that,
upon such Affected Lender’s replacement, such Affected Lender shall cease to be
a party hereto but shall continue to be entitled to the benefits of subsections
2.9, 3.4, 3.5, 3.6, 11.6 and 11.14 hereof, as well as to any other fees accrued
for its account hereunder and not yet paid, and shall continue to be obligated
under subsection 10.7 with respect to obligations and liabilities accruing
prior
to the replacement of such Affected Lender. If the Affected Lender is an LC
Issuer, Borrower shall, at the time of or prior to replacement of such Affected
Lender hereunder, cause all Facility L/Cs issued by such Affected Lender to
be
canceled and returned to such Affected Lender or, to the extent any one or
more
of such Facility L/Cs is not so canceled and returned, provide to such Affected
Lender, as security for the Reimbursement Obligations in respect of such
Facility L/Cs, cash collateral or a Letter of Credit issued by a Lender, and
in
form and substance,
reasonably
satisfactory to such Affected Lender. If and for as long as any Facility L/C
issued by an Affected Lender remains outstanding after the replacement of such
Affected Lender, such Affected Lender shall continue to have (but solely with
respect to such outstanding Facility L/Cs issued by it prior to its replacement)
the rights and obligations of an LC Issuer hereunder (including the right to
receive the portion of the Facility L/C Fees payable to the LC Issuer in respect
of such Facility L/Cs under clause (i) of subsection 2.18 hereof). Any Facility
L/Cs that remain outstanding and have been issued by an Affected Lender that
is
replaced hereunder shall not be extended, modified or amended (other than to
reduce the amount thereof).
REPRESENTATIONS
AND WARRANTIES
In
order
to induce Lenders, the LC Issuers and Agent to enter into this Agreement and
to
make the Revolving Credit Loans and Swingline Loans and to issue the Facility
L/Cs herein provided for, Borrower hereby covenants, represents and warrants
to
each Lender, LC Issuer and Agent that on the date hereof:
Financial
Statements.
Borrower has heretofore furnished to each Lender the consolidated balance sheet
of Borrower and its Subsidiaries as of December 31, 2005 (and as of June 30,
2006), and the related consolidated statements of income, of stockholders’
equity and of cash flows for the fiscal year (or fiscal quarter) of Borrower
then ended, which, in the case of the statements as of December 31, 2005, have
been certified by an independent public accountant of recognized national
standing. The foregoing financial statements fairly present, in all material
respects, the financial condition of Borrower and its Subsidiaries as of the
date thereof and the results of the operations of Borrower and its Subsidiaries
for the period then ended and, from the date of the foregoing financial
statements to the date hereof, there has been no material adverse change in
such
condition.
Existence;
Compliance with Law.
Each of Borrower and Borrower’s Subsidiaries (a) is duly organized or formed, as
appropriate, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, formation or organization, as appropriate,
(b) has the requisite corporate, partnership or limited liability company power
and authority to conduct the business in which it is currently engaged, (c)
is
qualified as a foreign entity to do business under the laws of any jurisdiction
where the failure to so qualify would have a material adverse effect on the
business of Borrower and Borrower’s Subsidiaries taken as a whole, and (d) is in
compliance with all Requirements of Law except to the extent that the failure
to
comply therewith would not, in the aggregate, have a material adverse effect
on
the business, operations, property or financial or other condition of Borrower
and Borrower’s Subsidiaries taken as a whole and would not materially adversely
affect the ability of Borrower or the Guarantors to perform their obligations
under the Loan Documents.
Power;
Authorization; Enforceable Obligations.
Borrower and each Guarantor has the corporate, partnership or limited liability
company (as applicable) power and authority to make, deliver and perform the
Loan Documents to which it is a party and (in the case of Borrower) to borrow
hereunder, and has taken all corporate or other action necessary to be taken
by
it to authorize (a) (in the case of Borrower) the borrowings on the terms and
conditions of this Agreement and the Notes, and (b) the execution, delivery
and
performance of the Loan Documents to which it is a party. No consent, waiver
or
authorization of, or filing with any Person (including without limitation any
Governmental Authority) is required to be made or obtained by Borrower in
connection with the borrowings hereunder or by Borrower or any Guarantor in
connection with the execution, delivery, performance, validity or enforceability
of the Loan Documents to which it is a party. This Agreement has been, and
each
Note and Guaranty Agreement will be, duly executed and delivered on behalf
of
Borrower or each Guarantor (as the case may be), and this Agreement constitutes,
and each Note and Guaranty Agreement when executed and delivered hereunder
will
constitute, a legal, valid and binding obligation of Borrower or the Guarantors
(as the case may be), enforceable against Borrower or the Guarantors (as the
case may be), in accordance with its terms, subject to the effect, if any,
of
bankruptcy, insolvency, reorganization, arrangement or other similar laws
relating to or affecting the rights of creditors generally and the limitations,
if any, imposed by the general principles of equity and public
policy.
No
Legal Bar.
The execution, delivery and performance of this Agreement and the Notes, the
borrowings hereunder and the use of the proceeds thereof and the execution,
delivery and performance by the Guarantors of the Guaranty Agreement (a) do
not
and will not violate any Requirement of Law or Contractual Obligation of
Borrower or any of Borrower’s Subsidiaries, (b) do not contravene the articles
of incorporation, charter, bylaws, partnership agreement, articles or
certificate of formation, operating agreement or other organizational documents
of Borrower or any of Borrower’s Subsidiaries and (c) do not and will not result
in, or require, the creation or imposition of any Lien on any of its properties
or revenues pursuant to any Requirement of Law or Contractual
Obligation.
No
Material Litigation.
No litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of Borrower, threatened
by or against Borrower or any of Borrower’s Subsidiaries or against any of their
respective properties or revenues (a) with respect to this Agreement, the Notes
or any Guaranty Agreement or any of the transactions contemplated hereby or
thereby, or (b) which could reasonably be expected to have a material adverse
effect on the business, operations, property or financial or other condition
of
Borrower and Borrower’s Subsidiaries taken as a whole.
Regulation
U.
Neither Borrower nor any of Borrower’s Subsidiaries is engaged, nor will either
of them engage, principally or as one of its important activities, in the
business of extending credit for the purpose of “purchasing” or “carrying” any
“margin stock” within the respective meanings of each of the quoted terms under
Regulation U of the Board of Governors of the Federal Reserve System as now
and
from time to time hereafter in effect. No part of the proceeds of any loans
hereunder will be used for “purchasing” or “carrying” “margin stock” as so
defined or for any purpose which violates, or which would be inconsistent with,
the provisions of the Regulations of such Board of Governors. If requested
by
Agent, Borrower and each of Borrower’s Subsidiaries will furnish to Agent a
statement in conformity with the requirements of Federal Reserve Form U-l
referred to in said Regulation U to the foregoing effect.
Investment
Company Act.
Neither Borrower nor any of Borrower’s Subsidiaries is an “investment company”
or a company “controlled” by an “investment company,” within the meaning of the
Investment Company Act of 1940, as amended.
ERISA.
Borrower and Borrower’s Subsidiaries are in compliance in all material respects
with ERISA. There has been no Reportable Event with respect to any Plan. There
has been no institution of proceedings or any other action by PBGC or Borrower
or any Commonly Controlled Entity to terminate or withdraw or partially withdraw
from any Plan under any circumstances which could lead to material liabilities
to PBGC or, with respect to a Multiemployer Plan, the Reorganization or
Insolvency (as each such term is defined in ERISA) of the
Plan.
Disclosure.
No representations or warranties made by Borrower or any Guarantor in this
Agreement or any other Loan Document or in any other document furnished from
time to time in connection herewith or therewith (as such other documents may
be
supplemented from time to time) contains or will contain any untrue statement
of
a material fact or omits or will omit to state any material fact necessary
to
make the statements herein or therein, in light of the circumstances under
which
they were made, not misleading.
Subsidiary
Information.
Schedule
3
attached hereto contains the name, principal place of business, all other places
of business and percentage of ownership of all of the Subsidiaries of
Borrower.
M/I
Ancillary Businesses Information.
Schedule
4
attached hereto contains the name, principal place of business, all other places
of business and percentage of ownership of all of the M/I Ancillary
Businesses.
Schedules.
Each of the Schedules to this Agreement contains true, complete and correct
information in all material respects.
Environment.
Borrower and Borrower’s Subsidiaries have been issued and will maintain all
required federal, state, and local permits, licenses, certificates and approvals
relating to (a) emissions; (b) discharges to service water or groundwater;
(c)
noise emissions; (d) solid or liquid waste disposal; (e) the use, generation,
storage, transportation or disposal of toxic or hazardous substances or
hazardous wastes; or (f) other environmental, health or safety matters, except
to the extent the failure to have any such permit, license, certificate or
approval would not have a material adverse effect on Borrower’s consolidated
operations, business or financial condition. Neither Borrower nor any of
Borrower’s Subsidiaries have received notice of, or has actual knowledge of any
material violations of any federal, state or local environmental, health or
safety laws, codes or ordinances or any rules or regulations promulgated
thereunder. Except in accordance with a valid governmental permit, license,
certificate or approval, there has been no material emission, spill, release
or
discharge into or upon (i) the air; (ii) soils; (iii) service water or
groundwater; (iv) the sewer, septic system or waste treatment, storage or
disposal system servicing any property of Borrower or any of its Subsidiaries
of
any toxic or hazardous substances or hazardous wastes at or from such property;
and accordingly no such property has been adversely affected, in any material
respect, by any toxic or hazardous substances or wastes. There has been no
complaint, order, directive, claim, citation or notice by any Governmental
Authority or any person or entity with respect to material violations of law
or
damages by reason of Borrower or Borrower’s Subsidiaries (1) air emissions; (2)
spills, releases or discharges to soils or improvements located thereon, surface
water, groundwater or the sewer, septic system or waste treatment, storage
or
disposal system servicing the premises; (3) noise emissions; (4) solid or liquid
waste disposal; (5) use, generation, storage, transportation or disposal of
toxic or hazardous substances or hazardous wastes; or (6) other environmental,
health or safety matters affecting Borrower or any of Borrower’s Subsidiaries.
Neither Borrower nor any of Borrower’s Subsidiaries have any material
indebtedness, obligation or liability, absolute or contingent, matured or
unmatured, with respect to the storage, treatment, cleanup or disposal of any
solid waste, hazardous wastes, or other toxic or hazardous substances. For
purposes of this subsection 4.13, a violation, emission, spill, release,
discharge, damage, adverse effect, indebtedness, obligation or liability shall
be deemed material if, and only if, such violation, emission, spill, release,
discharge, damage, adverse effect, indebtedness, obligation or liability, in
any
one case or in the aggregate, would have a material adverse effect on Borrower’s
consolidated operations, business or financial condition.
Force
Majeure Events.
Neither the business nor the properties of Borrower or any Subsidiary are
affected by any fire, explosion, accident, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy, or other casualty (whether or not
covered by insurance), materially and adversely affecting such
business or properties or the operation of Borrower and its Subsidiaries taken
as a whole.
Other
Agreements.
Neither Borrower nor any Subsidiary is a party to any indenture, loan, or credit
agreement, or to any lease or other agreement or instrument or subject to any
charter, corporate or other restriction which could have a material adverse
effect on the business, properties, assets, operations, or conditions, financial
or otherwise, of Borrower and its Subsidiaries, taken as a whole, or the ability
of Borrower or any Subsidiary to carry out its obligations under the Loan
Documents to which it is a party. Neither Borrower nor any Subsidiary is in
default in any material respect in the performance, observance, or fulfillment
of any of the obligations, covenants, or conditions contained in any agreement
or instrument material to the business of Borrower and its Subsidiaries, taken
as a whole.
No
Defaults on Outstanding Judgments or Orders.
Except for judgments with respect to which the liability of Borrower and each
Subsidiary does not exceed $5,000,000 in the aggregate for all such judgments,
(a) Borrower and each Subsidiary have satisfied all unstayed and unappealed
judgments, and (b) neither Borrower nor any Subsidiary is in default with
respect to any judgment, or any material writ, injunction, decree, rule, or
regulation of any court, arbitrator, or federal, state, municipal, or other
governmental authority, commission, board, bureau, agency, or instrumentality,
domestic or foreign applicable to Borrower or any
Subsidiary.
Ownership
and Liens.
Borrower and each Subsidiary have title to, or valid leasehold interests in,
all
of their respective properties and assets, real and personal, including the
properties and assets and leasehold interests reflected in the financial
statements referred to in subsection 4.1 (other than any properties or assets
disposed of in the ordinary course of business), and none of the properties
and
assets owned by Borrower or any Subsidiary and none of their leasehold interests
is subject to any Lien, except such as may be permitted pursuant to subsection
7.2 of this Agreement.
Operation
of Business.
Borrower and each Subsidiary possess all material licenses, permits, franchises,
patents, copyrights, trademarks, and trade names, or rights thereto, required
to
conduct their respective businesses substantially as now conducted and as
presently proposed to be conducted and neither Borrower nor any of its
Subsidiaries is in violation of any valid rights of others with respect to
any
of the foregoing where the failure to possess such licenses, permits,
franchises, patents, copyrights, trademarks, trade names or rights thereto
or
the violation of the valid rights of others with respect thereto may, in any
one
case or in the aggregate, adversely affect in any material respect the financial
condition, operations, properties, or business of Borrower or any Subsidiary
or
the
ability
of Borrower and its Subsidiaries, taken as a whole, to perform their obligations
under the Loan Documents to which they are a party.
Taxes.
All income tax liabilities or income tax obligations of Borrower and each
Subsidiary (other than those being contested in good faith by appropriate
proceedings) have been paid or have been accrued by or reserved for by Borrower.
Borrower constitutes the parent or an affiliated group of corporations for
filing a consolidated United States federal income tax
return.
CONDITIONS
PRECEDENT
Conditions
to Initial Loan(s).
The obligation of the Lenders to make the initial Loan(s), of the Swingline
Lender to make Swingline Loans and of any LC Issuer to issue, amend or extend
any Facility L/C hereunder on the first Borrowing Date is subject to the
satisfaction of the following conditions precedent on or prior to such
date:
Notes.
Each
Lender shall have received its respective Note, conforming to the requirements
hereof and duly executed and delivered by a duly authorized officer of Borrower;
provided, however, that the Note delivered under the Existing Credit Agreement
to any Lender whose Commitment under this Agreement is equal to its Commitment
under the Existing Credit Agreement shall remain in full force and effect and
shall not be required to be replaced by a new Note hereunder unless requested
by
such Lender.
Guaranty
Agreement.
The
Guaranty Agreement shall have been duly executed and delivered by all Guarantors
to Agent.
Borrowing
Base Compliance.
Borrower shall have delivered to each Lender and Agent a Borrowing Base
Certificate, certified by a Responsible Officer of Borrower, which shows
compliance with the provisions of subsection 2.1(b) hereof as of August 31,
2006.
Legal
Opinion of Counsel to Borrower.
Agent
shall have received an executed legal opinion of J. Xxxxxx Xxxxx, Esq., counsel
to Borrower and Borrower’s Subsidiaries, dated as of the date hereof and
addressed to Lenders and Agent, substantially in the form of Exhibit
E
attached
hereto, and otherwise in form and substance reasonably satisfactory to each
Lender and Agent and covering such other matters incident to the transactions
contemplated hereby as each Lender and Agent or their respective counsel may
reasonably require.
Corporate
Proceedings of Borrower.
Agent
shall have received a copy of the resolutions (in form and substance
satisfactory to Agent) of the board of directors of Borrower authorizing (i)
the
execution, delivery and performance, of this Agreement, (ii) the consummation
of
the transactions contemplated hereby, (iii) the borrowings herein provided
for,
and (iv) the execution, delivery and performance of the Notes and the other
documents provided for in this Agreement, all certified by the Secretary or
the
Assistant Secretary of Borrower as of the date hereof. Such certificate shall
state that the resolutions set forth therein have not been amended, modified,
revoked or rescinded as of the date hereof.
Proceedings
of Guarantors.
Agent
shall have received a copy of the respective resolutions (in form and substance
reasonably satisfactory to Agent) of the board of directors, management
committee or other governing body of each of the Guarantors (or of Borrower
or
another Subsidiary of Borrower as the sole shareholder or sole member of the
applicable Guarantor), each resolution authorizing the execution, delivery
and
performance of the Guaranty Agreement, all certified by the Secretary or
Assistant Secretary (or other person in a comparable position) of the respective
Guarantor (or Borrower or Subsidiary) as of the date hereof. Such certificate
shall state that the resolutions set forth therein have not been amended,
modified, revoked or rescinded as of the date hereof.
Incumbency
Certificate of Borrower.
Agent
shall have received a certificate of the Secretary or an Assistant Secretary
of
Borrower, dated the date hereof, as to the incumbency and signature of the
officer(s) of each executing this Agreement, the Notes and any certificate
or
other documents to be delivered pursuant hereto or thereto.
Incumbency
Certificates of Guarantors.
Agent
shall have received a certificate of the Secretary (or other person in a
comparable position) of each of the Guarantors, dated the date hereof, as to
the
incumbency and signatures of the officer(s) (or other person(s) in a comparable
position) of each executing the Guaranty Agreement.
Articles
of Incorporation of Borrower.
Agent
shall have received copies of (i) the articles of incorporation of Borrower,
together with all amendments, and a certificate of good standing, all certified
by the appropriate governmental officer in its jurisdiction of incorporation
and
(ii) the bylaws or code of regulations of Borrower certified by the Secretary
or
Assistant Secretary of Borrower.
Organizational
Documents of Guarantors.
Subject
to the provisions of the last sentence of this subsection 5.1(j), Agent shall
have received (i) with respect to each Guarantor that is a corporation (A)
copies of its articles or certificates of incorporation, including all
amendments thereto, and a certificate of good standing, all certified by the
appropriate governmental officer in its jurisdiction of incorporation and (B)
the bylaws or code of regulations of such Guarantor certified by the Secretary
(or other person in a comparable position) of each Guarantor, (ii) with respect
to any Guarantor that is a partnership, a true copy of its partnership
agreement, including all amendments thereto, certified by an officer of such
partnership or of its general partner, together with (in the case of any limited
partnership) copies of the certificates of limited partnerships and a
certificate of good standing, all certified by the appropriate governmental
officer in its jurisdiction of organization, and (iii) with respect to each
Guarantor that is a limited liability company, a copy of its operating
agreement, including all amendments thereto, certified by an officer of such
limited liability company or of its managing member, and a copy of its articles
or certificate of formation and a certificate of good standing, all certified
by
the appropriate officer of the state of its formation. Notwithstanding the
foregoing, to the extent that the documents provided for in this subsection
5.1(j) were delivered to Agent pursuant to the Existing Credit Agreement (or
a
prior credit agreement) and have not since been amended and remain in full
force
and effect, Borrower may deliver a certificate so stating (in lieu of delivery
of such documents hereunder)
No
Proceeding or Litigation; No Injunctive Relief.
No
action, suit or proceeding before any arbitrator or any Governmental Authority
shall have been commenced, no investigation by any Governmental Authority shall
have been commenced and no action, suit, proceeding or investigation by any
Governmental Authority shall have been threatened, against Borrower or any
Subsidiary of Borrower or any of the officers, directors or managers of Borrower
or any Subsidiary of Borrower, seeking to restrain, prevent or change the
transactions contemplated by this Agreement in whole or in part or questioning
the validity or legality of the transactions contemplated by this Agreement
or
seeking damages in connection with such transactions.
Consents,
Licenses, Approvals, etc.
Agent
shall have received true copies (certified to be such by Borrower or other
appropriate party) of all consents, licenses and approvals required in
accordance with applicable law in connection with the execution, delivery,
performance, validity and enforceability of the Loan Documents, if the failure
to obtain such consents, licenses or approvals, individually or in the
aggregate, would have a material adverse effect on Borrower and Borrower’s
Subsidiaries taken as a whole, or would adversely affect the validity or
enforceability of any of the foregoing documents, and approvals obtained shall
be in full force and effect and be satisfactory in form and substance to
Agent.
Compliance
with Law.
Neither
Borrower nor any of Borrower’s Subsidiaries shall be in violation in any
material respect of any applicable statute, regulation or ordinance, including
without limitation statutes, regulations or ordinances relating to environmental
matters, of any governmental entity, or any agency thereof, in any respect
materially and adversely affecting the business, property, assets, operations
or
condition, financial or otherwise, of Borrower and Borrower’s Subsidiaries taken
as a whole.
No
Default or Event of Default.
No
Default or Event of Default shall have occurred and be continuing hereunder
prior to or after giving effect to the making of the initial Loans (including
the issuance of Facility L/Cs) or the purchase by Lenders of participation
interests in the Existing L/Cs on the first Borrowing Date
hereunder.
No
Material Adverse Change.
There
shall have been no material adverse change in the consolidated financial
condition or business or operations of Borrower and Borrower’s Subsidiaries from
the date of Borrower’s December 31, 2005 consolidated financial statements to
the first Borrowing Date.
Fees.
Borrower shall have paid to Agent the fees provided for in the Agent’s Fee
Letter (which fees (except for any paid for the account of Agent or Arranger)
shall be paid by the Agent to the Lenders).
Facility
L/C Application.
If the
issuance of any Facility L/C is part of the initial loan(s), Borrower shall
have
delivered to the applicable LC Issuer a Facility L/C Application in accordance
with subsection 2.15 hereof for each Facility L/C that Borrower has requested
such LC Issuer to issue on the first Borrowing Date.
Additional
Matters.
All
corporate and other proceedings and all other documents and legal matters in
connection with the transactions contemplated by the Loan Documents
shall be reasonably satisfactory in form and substance to each Lender and Agent
and their respective counsel.
Agent
shall furnish to each Lender copies of all documents received by Agent in
satisfaction of the foregoing conditions.
Conditions
to All Loans.
In addition to the other terms and conditions of this Agreement with respect
to
the making of Loans and the issuance of Facility L/Cs, the obligation of each
Lender to make any Loan and of the LC Issuers to issue, amend or extend any
Facility L/C hereunder on any date (including without limitation the first
Borrowing Date) is subject to the satisfaction of the following conditions
precedent as of such date:
Representations
and Warranties.
The
representations and warranties made by Borrower in this Agreement and any
representations and warranties made by Borrower or any Subsidiary of Borrower
which are contained in any certificate, document or financial or other statement
furnished at any time under or in connection herewith or therewith, shall be
true and correct in all material respects on and as of the date of such Loan
or
issuance of such Facility L/C as if made on and as of such date unless stated
to
relate to a specific earlier date.
No
Default or Event of Default.
No
Default or Event of Default shall have occurred and be continuing on such date
or after giving effect to the Loan to be made or Facility L/C to be issued,
amended or extended on such date.
Facility
L/C Application.
In the
case of the issuance, amendment or extension of any Facility L/C, Borrower
shall
have delivered to the applicable LC Issuer a Facility L/C Application in
accordance with subsection 2.15 hereof for each Facility L/C that Borrower
has
requested such LC Issuer to issue, amend or extend.
Borrowing
Base.
Such
borrowing or the issuance, amendment or extension of such Facility L/C shall
not
violate the provisions of subsection 2.1(b) hereof.
Each
borrowing by Borrower and each submission of a Facility L/C Application under
this Agreement shall constitute a representation and warranty by Borrower as
of
the date of such borrowing or submission of such Facility L/C Application that
the conditions contained in the foregoing paragraphs (a), (b), (c) and (d)
of
this subsection 5.2 have been satisfied.
AFFIRMATIVE
COVENANTS
Borrower
hereby agrees that, from the date hereof and so long as any Commitment remains
in effect, any portion of any Note or Reimbursement Obligation remains
outstanding and unpaid, any Facility L/C remains outstanding that is not fully
collateralized with cash in a manner satisfactory to the LC Issuer thereof
and
to Agent, or any other amount is owing to Agent or any Lender hereunder,
Borrower shall, and in the case of subsections 6.6, 6.7, 6.8, 6.9 and 6.16
hereof, shall cause each of its Subsidiaries to:
Financial
Statements.
Furnish
to Agent (with sufficient copies for each Lender and which Agent shall promptly
furnish to each Lender):
as
soon
as available, but in any event within 90 days after the end of each fiscal
year
of Borrower, a copy of the audited consolidated balance sheet of Borrower and
its consolidated Subsidiaries as of the end of such year and the related audited
consolidated statements of income, of stockholders’ equity and of cash flows for
such year, setting forth in each case in comparative form the figures for the
previous year, together with the opinion of independent certified public
accountants of nationally recognized standing, which opinion shall not contain
a
“going concern” or like qualification or exception, or qualification arising out
of the scope of the audit or qualification which would affect the computation
of
financial covenants contained herein other than a qualification for consistency
due to a change in the application of GAAP with which Borrower’s independent
certified public accountants concur; and
as
soon
as available, but in any event not later than 60 days after the end of each
quarterly accounting period (excluding the quarterly accounting period for
the
last quarter of each fiscal year of the Commitment Period), the unaudited
consolidated balance sheet of Borrower and its consolidated Subsidiaries as
of
the end of each such quarter and the related unaudited consolidated statements
of income and of stockholders’ equity of Borrower and its consolidated
Subsidiaries for such 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, and including in each case: (i) the relevant figures broken down with
respect to each division of Borrower and its Subsidiaries and (ii) a summary
of
all Land, Land under Contract, Lots, Lots under Development, Finished Lots
and
Lots under Contract;
all
such
financial statements to be complete and correct in all material respects and
prepared in reasonable detail and in accordance with GAAP (except, in the case
of the financial statements referred to in subparagraph (b) of this subsection
6.1, that such financial statements need not contain footnotes and may be
subject to year-end audit adjustments).
Certificates;
Other Information.
Furnish to each Lender and Agent:
concurrently
with the delivery of each financial statement referred to in subsection 6.1
(a)
above and each financial statement referred to in subsection 6.1(b) above,
a
certificate of a Responsible Officer of Borrower (in the form of Exhibit
F
attached
hereto or such other form as shall be reasonably acceptable to each Lender
and
Agent) stated to have been made after due examination by such Responsible
Officer (i) stating that, to the best of such officer’s knowledge, 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, and (ii) showing
in
detail the calculations supporting such statement in respect of subsections
6.11, 6.12, 6.13, 7.1, 7.5, 7.6(b), 7.6(e) and 7.13 hereof;
not
later
than March 31 of each year, comprehensive projections for that year, setting
forth projected income and cash flow for each quarter of that year, and the
projected balance sheet as of the end of each quarter of that year, together
with a summary of the assumptions
upon which such projections are based and a certificate in the form of
Exhibit
G
hereto
of the chief financial officer or the controller of Borrower with respect to
such projections;
promptly
after the same are sent, copies of all financial statements, reports and notices
which Borrower or any of its Subsidiaries sends to its stockholders as
stockholders and, so long as Borrower is a reporting company under the
Securities Exchange Act of 1934, promptly after the same are filed, copies
of
all financial statements which Borrower may make to, or file with, and copies
of
all material notices it receives from, the Securities and Exchange Commission
or
any public body succeeding to any or all of the functions of the Securities
and
Exchange Commission;
promptly
upon receipt thereof, copies of all final reports submitted to Borrower by
independent certified public accountants in connection with each annual, interim
or special audit of the books of Borrower or any of its Subsidiaries made by
such accountants, including without limitation any final comment letter
submitted by such accountants to management in connection with their annual
audit; and
promptly,
on reasonable notice to Borrower, such additional financial and other
information as any Lender may from time to time reasonably request.
Borrowing
Base Certificate.
Furnish to Agent as soon as available, but in any event within twenty-five
(25)
days after the end of each calendar month, a Borrowing Base Certificate,
certified by the Chief Financial Officer, the Treasurer or the Controller of
Borrower, showing the calculation of the Borrowing Base as of the last day
of
such month (which certificate Agent shall promptly furnish to the
Lenders).
Compliance
with Borrowing Base Requirements.
At any time any Borrowing Base Certificate required to be furnished to Agent
in
accordance with subsection 6.3 hereof indicates that the Borrower is not in
compliance with the provisions of subsection 2.1(b) hereof, within five (5)
calendar days after the delivery of such Borrowing Base Certificate to Agent,
(a) reduce the principal amount of the Loans and undrawn and drawn Facility
L/Cs
or other Borrowing Base Indebtedness then outstanding by an amount sufficient
to
bring the Borrower in compliance with the provisions of subsection 2.1(b)
hereof, or (b) deliver to Agent a more current Borrowing Base Certificate that
demonstrates that the Borrower is in compliance with the provisions of
subsection 2.1(b) hereof.
Intentionally
Omitted.
Payment
of Obligations.
Pay, discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all its Indebtedness and other material
obligations of whatever nature, except (a) without prejudice to the
effectiveness of paragraph (5) of Section 9 hereof, any Indebtedness or other
obligations (including any obligations for taxes), when the amount
or
validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided
on
the books of Borrower or its Subsidiaries, as the case may be, and (b) any
Indebtedness secured by a mortgage on real estate if such Indebtedness is,
by
its terms, non-recourse to Borrower and its Subsidiaries.
Maintenance
of Existence; Compliance.
Except as may be permitted under subsection 7.3 hereof, preserve, renew and
keep
in full force and effect its corporate existence and take all reasonable action
to maintain all rights, privileges, contracts, copyrights, patents, trademarks,
trade names and franchises necessary or desirable in the normal conduct of
its
business, and comply with all Contractual Obligations and Requirements of Law
except to the extent that the failure to take such actions or comply with such
Contractual Obligations and Requirements of Law would not, in the aggregate,
have a material adverse effect on the business, operations, property or
financial or other condition of Borrower or of Borrower and its Subsidiaries,
taken as a whole. Borrower and its Subsidiaries have no duty to renew or extend
contracts which expire by their terms.
Maintenance
of Property, Insurance.
Keep all property useful in and necessary to its business in good working order
and condition; maintain with financially sound and reputable insurance companies
insurance on all its property in at least such amounts and against at least
such
risks (but including in any event public liability, general liability and
business interruption insurance) as are usually insured against in the same
general area by companies engaged in the same or a similar business; and furnish
to Agent, upon written request, full information as to the insurance
carried.
Inspection
of Property; Books and Records; Discussions.
Keep proper books of record and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities, subject
in
the case of interim statements to year-end audit adjustments; and permit
representatives of each Lender and Agent to visit and inspect any of its
properties, and examine and make abstracts from any of its books and records
at
any reasonable time and as often as may reasonably be requested, and to discuss
the business, operations, properties and financial and other condition of
Borrower and its Subsidiaries with officers and employees of Borrower and its
Subsidiaries and, if notice thereof is given to Borrower prior to the date
of
such discussions, with its independent certified public
accountants.
Notices.
Promptly give notice to Agent (which notice Agent shall promptly furnish to
the
Lenders):
of
the
occurrence of any Default or Event of Default;
of
any
(i) default or event of default under any loan or Letter of Credit agreement
binding upon Borrower or any of its Subsidiaries, (ii) default under any other
Contractual Obligation that would enable the obligee of the Contractual
Obligations to compel Borrower or any of its Subsidiaries to immediately pay
all
amounts owing thereunder or otherwise accelerate payments thereunder and would
have a material adverse effect on Borrower and its Subsidiaries taken as a
whole, or (iii) litigation, investigation or proceeding which may exist at
any
time between Borrower or any Subsidiary and any Governmental Authority, which,
if adversely determined, would have a material adverse effect on the business,
operations, property or financial or other condition of Borrower and its
Subsidiaries taken as a whole;
of
any
litigation or proceeding affecting Borrower or any of its Subsidiaries (i)
(A)
in which the amount involved is $2,000,000 or more and not covered by insurance,
or (B) which, in the reasonable opinion of a Responsible Officer of Borrower,
would, if adversely determined, have a material adverse effect on Borrower
and
its Subsidiaries taken as a whole, or (ii) in which injunctive or similar relief
is sought and which, in the reasonable opinion of a Responsible Officer of
Borrower, would, if adversely determined, have a material adverse effect on
Borrower and its Subsidiaries taken as a whole;
of
the
following events, as soon as possible and in any event within 30 days after
Borrower knows or has reason to know thereof: (i) the occurrence of any
Reportable Event with respect to any Plan with respect to which the PBGC has
not
waived the 30 day reporting requirement, or (ii) the institution of proceedings
or the taking or expected taking of any other action by PBGC or Borrower or
any
Commonly Controlled Entity to terminate or withdraw or partially withdraw from
any Plan under circumstances which could lead to material liability to the
PBGC
or, with respect to a Multiemployer Plan, the Reorganization or Insolvency
(as
each such term is defined in ERISA) of the Plan and in addition to such notice,
deliver to each Lender and Agent whichever of the following may be applicable:
(A) a certificate of a Responsible Officer of Borrower setting forth details
as
to such Reportable Event and the action that Borrower or Commonly Controlled
Entity proposes to take with respect thereto, together with a copy of any notice
of such Reportable Event that may be required to be filed with PBGC, or (B)
any
notice delivered by PBGC evidencing its intent to institute such proceedings
or
any notice to PBGC that such Plan is to be terminated, as the case may be;
and
of
a
material adverse change in the business, operations, property or financial
or
other condition of Borrower and its Subsidiaries taken as a whole.
Each
notice pursuant to this subsection 6.10 shall be accompanied by a statement
of
the chief executive officer or chief financial officer or other Responsible
Officer of Borrower setting forth details of the occurrence referred to therein
and stating what action Borrower proposes to take with respect thereto. For
all
purposes of clause (d) of this subsection 6.10, Borrower shall be deemed to
have
all knowledge or knowledge of all facts attributable to the administrator of
such Plan if such Plan is a Single Employer Plan.
Maintenance
of Consolidated Tangible Net Worth.
Maintain at all times during the Commitment Period Consolidated Tangible Net
Worth in amounts at all times equal to or exceeding (i) $480,000,000, plus
(ii)
fifty percent (50%) of the Consolidated Earnings for each quarter after June
30,
2006 (excluding any quarter
in
which Consolidated Earnings are less than zero (0)), plus (iii) fifty percent
(50%) of the net proceeds or other consideration received by Borrower for any
capital stock issued or sold after June 30, 2006.
Maintenance
of Debt to Worth.
Maintain during the Commitment Period a ratio of Consolidated Indebtedness
to
Consolidated Tangible Net Worth not in excess of 2.00 to
1.00.
Maintenance
of Interest Coverage Ratio.
Maintain during the Commitment Period an Interest Coverage Ratio of not less
than 2.00 to 1.00 (as determined on the last day of each fiscal quarter for
the
four-quarter period ending on the last day of such fiscal
quarter).
Guaranties
of Wholly-Owned M/I Ancillary Businesses.
Upon the request of the Agent on behalf of the Required Lenders, cause each
of
the M/I Ancillary Businesses that is wholly-owned by Borrower or by any
Subsidiary, that has total assets of at least $200,000 and that is not precluded
by law from executing the Guaranty Agreement to become a “Guarantor” by
execution and delivery of a Supplemental Guaranty by such M/I Ancillary Business
to Agent, and to deliver such proof of corporate or other appropriate action,
incumbency of officers, opinions of counsel and other documents delivered by
the
Guarantors pursuant to subsection 5.1 hereof or as the Agent shall have
requested.
Subsidiary
Guarantors.
Cause each new wholly-owned Subsidiary of Borrower or any Subsidiary of Borrower
formed or acquired after the date hereof, to become a “Guarantor” by execution
and delivery of a Supplemental Guaranty by such Subsidiary to Agent, and to
deliver such proof of corporate or other appropriate action, incumbency of
officers, opinions of counsel and other documents delivered by the Guarantors
pursuant to subsection 5.1 hereof or as the Agent shall have
requested.
Environment.
(a) Comply with all federal, state and local environmental, health and safety
laws, codes and ordinances and all rules and regulations issued thereunder
except to the extent the failure to do so would not have a material adverse
effect on the consolidated operations, business or financial condition of
Borrower and its Subsidiaries; (b) notify the Agent promptly of any notice
of a
hazardous discharge or environmental complaint received from any Governmental
Authority or any other Person (and the Agent shall notify the Lenders promptly
following its receipt of any such notice) that, if adversely determined, could
have a material adverse effect on the consolidated operations, business or
financial condition of Borrower and its Subsidiaries; and (c) notify the Agent
promptly of any hazardous discharge from or affecting its premises (and the
Agent shall notify the Lenders promptly following its receipt of any such
notice) that could have a material adverse effect on the consolidated
operations, business or
financial
condition of Borrower and its Subsidiaries. In the case of clauses (b) and
(c)
above, (i) promptly contain and remove any such hazardous discharge, in
compliance with all applicable laws; (ii) promptly pay any fine or penalty
assessed in connection therewith; (iii) permit the Agent to inspect the
premises, to conduct tests thereon and to inspect all books, correspondence
and
records pertaining thereto; and (iv) at the Agent’s request, and at Borrower’s
expense, provide a report of a qualified environmental engineer, satisfactory
in
scope, form and content to the Required Lenders, that the condition has been
corrected,
NEGATIVE
COVENANTS
Borrower
hereby agrees that, from the date hereof and so long as the Commitment remains
in effect, any portion of any Note or Reimbursement Obligation remains
outstanding and unpaid, any Facility L/C remains outstanding that is not fully
collateralized with cash in accordance with the provision of Section 8 hereof,
or any other amount is owing to Agent, any LC Issuer or any Lender hereunder,
Borrower shall not, nor shall it permit any of its Subsidiaries and, in the
case
of subsections 7.1, 7.2 and 7.3 hereof, permit any M/I Ancillary Business that
is wholly owned by Borrower or any Subsidiary to, directly or
indirectly:
Limitation
on Secured Indebtedness.
Create, incur or suffer to exist any Secured Indebtedness exceeding $50,000,000
at any time outstanding, provided, however, that, for purposes of this
subsection 7.1, Secured Indebtedness shall not include Indebtedness incurred
by
M/I Financial Corp. to finance the origination and/or warehousing of residential
mortgage loans in the ordinary course of business and secured by Liens on such
mortgage loans (“M/I
Financial Corp. Liens”)
except to the extent that Borrower is an obligor under or guarantor of such
Indebtedness, provided, however, that in the event that the lender under the
M/I
Financial Corp. Loan Agreement shall exercise its right to require M/I Financial
Corp. to grant to such lender M/I Financial Corp. Liens as security for the
Indebtedness under the M/I Financial Corp. Loan Agreement and Borrower is an
obligor or guarantor of such Indebtedness, such Indebtedness shall continue
to
be excluded from Secured Indebtedness under this subsection 7.1 for a period
of
sixty (60) days after the lender’s exercise of such
rights.
Limitation
on Liens.
Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether owned or hereafter acquired,
except:
Liens
in
favor of Agent, for the ratable benefit of Lenders;
Liens
securing Indebtedness permitted under subsection 7.1 hereof and M/I Financial
Corp. Liens;
Liens
for
taxes and special assessments not yet due or which are being contested in good
faith and by appropriate proceedings if adequate reserves with respect thereto
are maintained on the books of Borrower and Borrower’s Subsidiaries in
accordance with GAAP;
carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s, or other like Liens
arising in the ordinary course of business which are not overdue for a period
of
more than 30 days or which are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained on the
books of Borrower and Borrower’s Subsidiaries in accordance with
GAAP;
pledges
or deposits in connection with workers’ compensation, unemployment insurance and
other social security legislation other than Liens imposed by the
PBGC;
(i)
deposits to secure the performance of: bids; trade contracts (other than for
borrowed money or the purchase price of property or services); leases; statutory
and other obligations required by law; surety, appeal and performance bonds
(including Construction Bonds); and other obligations of a like nature incurred
in the ordinary course of business; and (ii) Liens in favor of surety bond
companies pursuant to indemnity agreements to secure the reimbursement
obligations of Borrower or any Subsidiary on Construction Bonds, provided (A)
the Liens securing Construction Bonds shall be limited to the assets of, as
appropriate, Borrower or such Subsidiary at, and the rights of, as appropriate,
Borrower or such Subsidiary arising out of, the projects that are the subject
of
the Construction Bonds, (B) the Liens shall not attach to any real estate and
(C) the aggregate amount of such Liens at any time shall not exceed the dollar
amount of Construction Bonds then outstanding;
Liens
of
landlords, arising solely by operation of law, on fixtures and moveable property
located on premises leased in the ordinary course of business; provided,
however, that the rental payments secured thereby are not yet due;
Liens
arising as a result of a judgment or judgments against Borrower or any of its
Subsidiaries which do not in the aggregate exceed $2,500,000 at any one time
outstanding, which are being diligently contested in good faith, which are
not
the subject of any attachment, levy or enforcement proceeding, and as to which
appropriate reserves have been established in accordance with GAAP; and
Liens
securing community development district bonds or similar bonds issued by
Governmental Authorities to accomplish similar purposes.
Limitation
on Fundamental Changes.
Except for (a) any Investments permitted pursuant to subsection 7.6(d) hereof
and (b) any Permitted Acquisition, enter into any transaction of merger,
consolidation, amalgamation or reorganization (including without limitation
any
election to be taxed as an S Corporation), or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or, except for the sale
of
land, lots and houses from inventory in the ordinary course of business, convey,
sell, lease, transfer or otherwise dispose of, in one transaction or
a
series
of transactions, all or any substantial part of its business or assets, whether
now owned or hereafter acquired, or make any material change in the method
by
which it conducts business, except any Subsidiary of Borrower may be (i) merged,
amalgamated or consolidated with or into Borrower or any wholly-owned Subsidiary
of Borrower, or (ii) liquidated, wound up or dissolved into, or all or
substantially all of its business, property or assets may be conveyed, sold,
leased, transferred or otherwise disposed of, in one transaction or a series
of
transactions, to Borrower or any wholly-owned Subsidiary of Borrower; provided,
however, that, in the case of such a merger, liquidation or consolidation,
Borrower or such wholly-owned Subsidiary, as the case may be, shall be the
continuing or surviving corporation.
Limitation
on Acquisitions.
Except for any Permitted Acquisition and the acquisition of land, lots and
houses in the ordinary course of business to the extent not otherwise prohibited
hereunder, enter into any Acquisition without the prior written consent of
the
Required Lenders.
Land
Inventory.
Permit at any time Adjusted Land Value to exceed 125% of the sum of (a)
Consolidated Tangible Net Worth plus (b) fifty percent (50%) of Subordinated
Indebtedness.
Limitation
on Investments.
Make or commit to make any advance, loan, extension of credit or capital
contribution to, or purchase of any stock, bonds, note, debenture or other
security of, or make any other investment in, any Person (all such transactions
being herein called “Investments”),
except (to the extent not otherwise prohibited hereunder):
Investments
in Cash Equivalents;
extensions
of credit in connection with the sale of land which do not exceed in the
aggregate at any one time outstanding an amount equal to two and one-half
percent (2.5%) of Consolidated Tangible Net Worth, and which have a maximum
maturity of five years;
loans
and
advances to officers and employees of Borrower or Borrower’s Subsidiaries, to
other Persons in the ordinary course of business or as permitted by the code
of
regulations of Borrower, which do not exceed in the aggregate $2,000,000 at
any
one time outstanding;
any
Investments in the Subsidiaries identified in Schedule
3
hereto
or any other Subsidiary that becomes a Guarantor in accordance with the terms
hereof;
any
Investment in Joint Venture, the aggregate cost of which, as determined in
accordance with GAAP excluding, however, Borrower’s or Borrower’s Subsidiaries’
equity in the undistributed earnings or losses in each such Joint Venture,
does
not at any one time outstanding exceed fifteen percent (15%) of Consolidated
Tangible Net Worth; provided, however, that with respect to each such Joint
Venture, Borrower shall have at least a
20%
ownership interest in such Joint Venture and all decisions with respect to
the
management and control of each such Joint Venture’s business (other than
decisions with respect to development of undeveloped land owned by such Joint
Venture) shall require the consent and approval of Borrower; and provided,
further, however, that no such Investment may be made if it causes or results
(singly or with other actions or events) in (i) any violation of any other
covenant or condition hereof or (ii) any other Default or Event of
Default;
first
mortgage loans made in the ordinary course of M/I Financial Corp.’s business to
natural persons for the purchase of residential real property;
second
mortgage loans made in the ordinary course of M/I Financial Corp.’s business to
natural persons for the purchase of residential real property, provided that
such second mortgage loans shall be made only in connection with a specific
financing program to natural persons who have a first mortgage loan from M/I
Financial Corp. with respect to the same real property;
any
first
mortgage loan made in the ordinary course of M/I Financial Corp.’s business to
natural persons for the purpose of refinancing an existing first mortgage
loan;
Investments
by M/I Financial Corp. in the stock of Xxxxxx Xxx to the extent required for
M/I
Financial Corp. to sell mortgages to Xxxxxx Mae;
Investments
by M/I Financial Corp. in the ordinary course of its business in standard
instruments hedging against interest rate risk incurred in the origination
and
sale of mortgage loans, in each case matching a hedging instrument or
instruments to specific mortgages or specific groups of mortgages, but in no
event including investments in futures contracts, options contracts or other
derivative investment vehicles acquired as independent investments;
Investments
in, advances to, and Contingent Obligations related to the obligations of,
the
M/I Ancillary Businesses; and
other
Investments, not specifically listed in items (a) through (k) of this subsection
7.6, directly related to the Borrower’s business.
Transactions
with Affiliates and Officers.
Except
for compensation arrangements in the ordinary course of business with the
officers, directors, and employees of Borrower and Borrower’s Subsidiaries,
enter into any transaction, including without limitation the purchase, sale
or
exchange of property or the rendering of any services, with any Affiliate or
any
officer or director thereof, or enter into, assume or suffer to exist any
employment or consulting contract with any Affiliate or an officer or director
thereof, except any transaction or contract which is in the ordinary course
of
Borrower’s or any of Borrower’s Subsidiaries’ business and which is upon fair
and reasonable terms no less favorable to Borrower or Borrower’s Subsidiaries
than it would obtain in a comparable arm’s length transaction with a Person not
an Affiliate;
make
any
advance or loan to any Affiliate or any director or officer thereof or of
Borrower or any Subsidiary of Borrower or to any trust of which any of
the
foregoing
is a beneficiary, or to any Person on the guarantee of any of the foregoing,
except as expressly permitted by subsection 7.6(c) hereof; or
pay
any
fees or expenses to, or reimburse or assume any obligation for the reimbursement
of any expenses incurred by, any Affiliate or any officer or director thereof,
except as may be permitted in accordance with clauses (a) and (b) of this
subsection 7.7.
Sale
and Leaseback.
Enter into any arrangement with any Person providing for the leasing by Borrower
or any of Borrower’s Subsidiaries of real or personal property which has been or
is to be sold or transferred by Borrower or any of Borrower’s Subsidiaries to
such Person or to any other Person to whom funds have been or are to be advanced
by such Person on the security of such property or rental obligations of
Borrower or any of Borrower’s Subsidiaries; provided, however, that such
arrangements shall be permitted with respect to Model Houses, so long as any
such arrangement with respect to Model Houses does not result in: (a) the
creation of a lease which is required to be capitalized in accordance with
GAAP;
(b) the initial term of such arrangement plus any options or renewals
exercisable by lessor or lessee exceeding four years; or (c) the violation
of
any term, condition or covenant hereof.
Limitation
on Payments of Subordinated Indebtedness and Modification
of Subordination
Agreements.
Without
the prior written consent of the Required Lenders,
repay,
prepay, purchase, redeem, or otherwise acquire any Subordinated Indebtedness;
or
make
any
other payments, including without limitation payment of interest, on any
Subordinated Indebtedness if an Event of Default exists or if such payment
would
cause an Event of Default to occur; or
permit
the modification, waiver or amendment of any of the terms of any Subordinated
Indebtedness, except for modifications, waivers or amendments that do not (i)
increase the interest rate or change the maturity date of such Subordinated
Indebtedness or (ii) change the subordination provisions of such Subordinated
Indebtedness; or
permit
(whether or not within the control of Borrower or any of Borrower’s
Subsidiaries) the modification, waiver, or amendment of, or release of any
parties to, any subordination agreement with respect to any Subordinated
Indebtedness;
provided,
however, nothing contained in this subsection 7.9 shall prevent Borrower from
making regularly scheduled payments on any Subordinated Indebtedness if no
Event
of Default exists and the payment would not cause an Event of Default to occur.
Sale
of Guarantor Securities.
Sell
any security or equity of any Guarantor, or permit any Guarantor to sell or
issue any security or equity to any Person other than security or equity sold
or
issued to Borrower. The provisions of this subsection 7.10 shall not restrict
the sale of mortgage loans in the ordinary course of business.
Intentionally
Omitted.
Limitation
on Negative Pledges.
Enter into any agreement (other than (a) this Agreement, (b) any indenture
or
other agreement (i) governing any notes or bonds issued by the Borrower
evidencing Indebtedness of the Borrower that is permitted under this Agreement
and that does not constitute Subordinated Indebtedness and (ii) that provides
that the Borrower or any Subsidiary may not create or incur any Lien upon any
of
its assets, rights, revenues or property, unless the Lien also secures, on
a
pari passu
basis such Indebtedness and (c) any document evidencing or securing Secured
Indebtedness (i) that is permitted under this Agreement or (ii) that prohibits
other Liens against the property that secures such Secured Indebtedness) which
prohibits or limits the ability of Borrower, any of Borrower’s Subsidiaries or
any of the M/I Ancillary Businesses that are wholly-owned by the Borrower or
by
any Subsidiary to create, incur, assume or suffer to exist any Lien upon any
of
its assets, rights, revenues or property, real, personal or mixed, tangible
or
intangible, whether now owned or hereafter acquired.
Housing
Inventory.
Permit the number of Speculative Housing Units, as at the end of any fiscal
quarter, to exceed the greater of (a) the number of Housing Unit Closings
occurring during the period of twelve (12) months ending on the last day of
such
fiscal quarter, multiplied by twenty-five percent (25%) or (b) the number of
Housing Unit Closings occurring during the period of six (6) months ending
on
the last day of such fiscal quarter, multiplied by fifty percent
(50%).
CASH
COLLATERAL
Facility
L/C Collateral Account.
Borrower agrees that it will, upon the request of Agent or the Required Lenders
and until the final expiration date of any Facility L/C and thereafter as long
as any amount is payable to any LC Issuer or the Lenders in respect of any
Facility L/C, maintain a special collateral account pursuant to arrangements
satisfactory to Agent (the “Facility
L/C Collateral Account”)
at Agent’s office in the name of Borrower but under the sole dominion and
control of Agent, for the benefit of the Lenders and LC Issuers and in which
Borrower shall have no interest other than set forth in subsections 8.2, 8.3
or
8.4 hereof. Borrower hereby pledges, assigns and grants to Agent, on behalf
of
and for the ratable benefit of the Lenders and LC Issuers, a security interest
in all of Borrower’s right, title and interest in and to all funds which may
from time to time be on deposit in the Facility L/C Collateral Account to secure
the prompt and complete payment and performance of the Obligations. Agent will
invest any funds on deposit from time to time in the Facility L/C Collateral
Account in certificates of
deposit
of Agent having a maturity not exceeding 30 days. Nothing in this subsection
8.1
shall either require Borrower to deposit any funds in the Facility L/C
Collateral Account, obligate Agent to require Borrower to deposit any funds
in
the Facility L/C Collateral Account or limit the right of Agent to release
any
funds held in the Facility L/C Collateral Account, in each case other than
as
required by subsections 8.2, 8.3 or 8.4 hereof.
Event
of Default under Paragraph (5) of Section 9.
Upon the occurrence of an Event of Default specified in paragraph (5) of Section
9, Borrower will be and become thereby unconditionally obligated, without any
further notice, act or demand, to pay to Agent an amount in immediately
available funds, which funds shall be held in the Facility L/C Collateral
Account, equal to the difference of (x) the amount of Facility L/C Obligations
at such time, less (y) the amount on deposit in the Facility L/C Collateral
Account at such time which is free and clear of all rights and claims of third
parties and has not been applied against the Obligations (such difference,
the
“Collateral
Shortfall Amount”).
Other
Events of Default.
If any Event of Default (other than an Event of Default specified in paragraph
(5) of Section 9) occurs, the Required Lenders (or Agent with the consent of
the
Required Lenders) may, upon notice to Borrower and in addition to the continuing
right to demand payment of all amounts payable under the Loan Documents, make
demand on Borrower to pay, and Borrower will, forthwith upon such demand and
without any further notice or act, pay to Agent the Collateral Shortfall Amount,
which funds shall be deposited in the Facility L/C Collateral
Account.
Cure;
Termination.
If
the
Event of Default that resulted in the requirement for deposit of funds in the
Facility L/C Collateral Account is cured, and provided no other Event of Default
has occurred that is then continuing, Agent shall, promptly upon request from
Borrower, pay to or as directed by Borrower the amount on deposit in the
Facility L/C Collateral Account. Nothing contained in this paragraph shall
waive, limit or otherwise affect the rights of Agent or the Lenders or the
obligations of Borrower under this Section 8 if any other Event of Default
shall
occur.
If
the
Aggregate Commitment is terminated (whether by acceleration, demand or
otherwise), then, not later than simultaneously with such termination, and
without limitation of Agent’s and each Lender’s right to demand payment of all
amounts payable under the Loan Documents, Borrower shall pay to Agent the
Collateral Shortfall Amount, which funds shall be deposited in the Facility
L/C
Collateral Account; provided, however, that (i) if all Obligations of Borrower
(other than Facility L/C Obligations in respect of issued and outstanding
Facility L/Cs that have not been drawn upon) have been paid in full, and (ii)
Borrower shall have provided to Agent and the LC Issuers, as security for the
remaining Facility L/C Obligations, one or more Letters of Credit, in an
aggregate amount at least equal to such
remaining
Facility L/C Obligations, issued by a Lender or Lenders, and in form and
substance, reasonably satisfactory to Agent and the LC Issuers, the foregoing
requirement for deposit of funds in the Facility L/C Collateral Account shall
not apply.
DEFAULTS,
EVENTS OF DEFAULT; DISTRIBUTION OF PROCEEDS AFTER EVENT OF
DEFAULT
Upon
the
occurrence of any of the following events:
Borrower
shall fail to pay any principal of any Note or make any reimbursement (including
payment of Reimbursement Obligations) in connection with any Facility L/C when
due in accordance with the terms thereof; or
Borrower
shall fail to pay (a) any interest on any Note or in connection with any
Facility L/C, or (b) any fee, charge or other amount payable hereunder, within
three (3) days after Agent or any Lender notifies Borrower that such interest,
fee or amount has become due in accordance with the terms thereof or hereof
and
has not been paid; or Borrower shall fail to comply with the provisions of
any
one or more of subsections 6.4, 6.10(e), 6.15, 6.17, 7.3, 7.4, 7.8, 7.9, 7.10
or
7.12; or
any
representation or warranty made or deemed made by Borrower, herein or which
is
contained in any certificate, document or financial or other statement furnished
at any time under or in connection herewith or therewith, shall prove to have
been incorrect in any material respect on or as of the date made or deemed
made;
or
Borrower
shall default in the observance or performance of any covenant or agreement
contained in (a) subsection 6.3 hereof and such default remains uncured for
five
(5) days (notice to Borrower from Agent or any Lender of such default is not
required), (b) subsections 6.2(c), 6.2(d), 6.6, 6.10 (other than subsection
6.10(e)), 6.11, 6.12, 6.13, 6.14, 6.16, 7.1, 7.2, 7.6 or 7.7 hereof and such
default remains uncured ten days after Agent or any Lender notifies Borrower
that such default has occurred, (c) subsection 6.9 hereof and such default
remains uncured for ten (10) days after Agent or any Lender notifies Borrower
that such default has occurred, provided, that for any default under subsection
6.9 hereof for which cure cannot reasonably be accomplished within ten days,
if
cure is commenced within such ten (10)-day period, Borrower may have an
additional period of up to thirty (30) days after notice to cure such default
before it is an Event of Default, (d) any one or more of subsections 6.1(b),
6.2(a) or 6.2(b) hereof and such default remains uncured fifteen (15) days
after
Agent or any Lender notifies Borrower that such default has occurred, or (e)
any
other provision of this Agreement (including without limitation subsections
6.1(a), 6.2(e), 6.7 and 6.8 hereof) which default shall remain uncured thirty
(30) days after Agent or any Lender notifies Borrower that such a default has
occurred, which notice shall specify the nature of the default;
or
(a)
Borrower or any of Borrower’s Subsidiaries shall commence any case, proceeding
or other action (i) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect
to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (ii) seeking
appointment of a receiver, trustee, custodian or other similar official for
it
or for all or any substantial part of its assets, or Borrower or any of
Borrower’s Subsidiaries shall make a general assignment for the benefit of its
creditors; or (b) there shall be commenced against Borrower or any of Borrower’s
Subsidiaries any case, proceeding or other action of a nature referred to in
clause (a) above which (i) results in the entry of an order for relief of any
such adjudication or appointment, and (ii) remains undismissed, undischarged
or
unbonded for a period of 60 days; or (c) there shall be commenced against
Borrower or any of Borrower’s Subsidiaries any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in
the
entry of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (d) Borrower or any of
Borrower’s
Subsidiaries shall take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the acts set forth in clauses (a),
(b) or (c) above; or (e) Borrower or any of Borrower’s Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due; or
Borrower
or any Subsidiary of Borrower shall (a) default in any payment of principal
of
or interest on any Indebtedness (other than the Obligations) or in the payment
of any Contingent Obligation beyond the period of grace, if any, provided in
the
instrument or agreement under which such Indebtedness or Contingent Obligation
was created, and the aggregate principal amount then outstanding of all such
Indebtedness and Contingent Obligations of Borrower and all Subsidiaries exceeds
$5,000,000, or (b) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or Contingent
Obligation or contained in any instrument or agreement evidencing, securing
or
relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness or beneficiary or beneficiaries of such
Contingent Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due or to be repurchased, prepaid,
defeased or redeemed prior to its stated maturity or such Contingent Obligation
to become payable; provided, however, that it shall not constitute a Default
or
Event of Default if (x) Borrower or any Subsidiary of Borrower defaults on
Indebtedness secured by a mortgage on real estate if such Indebtedness is by
its
terms non-recourse to Borrower and Borrower’s Subsidiaries, or (y) a draw is
made on a standby Letter of Credit or payment is made on a performance bond,
so
long as any reimbursement obligation of Borrower with respect to such Letter
of
Credit or performance bond is made within the time required by the document
creating the reimbursement obligation; or
(a)
any party in interest (as defined in Section 3(14) of ERISA) affiliated with
Borrower or any of Borrower’s Subsidiaries shall engage in any “prohibited
transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (b) any “accumulated funding deficiency” (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan, (c) a Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable Event
or
institution of proceedings is, in the opinion of the Required Lenders, likely
to
result in the termination of such Plan for purposes of Title IV of ERISA, and,
in the case of a Reportable Event, the continuance of such Reportable Event
unremedied for thirty (30) days after notice of such Reportable Event pursuant
to Section 4043 (a), (c) or (d) of ERISA is given or, in the case of institution
of proceedings, the continuance of such proceedings for thirty (30) days after
commencement thereof, (d) any Single Employer Plan shall terminate for purposes
of Title IV of ERISA, or (e) any other event or condition shall occur or exist
with respect to a Single Employer Plan and in each case in clauses (a) through
(e) above, such event or condition, together with all other such events or
conditions, if any, could subject Borrower or any of Borrower’s Subsidiaries to
any tax, penalty or other liabilities in the aggregate material in relation
to
the business, operations, property or financial or other condition of Borrower
or of Borrower and Borrower’s Subsidiaries taken as a whole;
or
one
or more judgments or decrees shall be entered against Borrower, or any of
Borrower’s Subsidiaries involving in the aggregate a liability (not covered by
insurance) of $5,000,000 or more and all such judgments or decrees in excess
of
$5,000,000 shall not have been vacated, satisfied, discharged, or stayed or
bonded pending appeal within 30 days from the entry thereof;
or
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;
or
any
subordination agreement that evidences any Subordinated Indebtedness (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 (subject to subsection 7.9 hereof) 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);
then,
and
in any such event, (a) if such event is an Event of Default specified in
paragraph (5) above, the Commitments, if still outstanding, shall automatically
and immediately terminate and all Obligations shall immediately become due
and
payable and Borrower shall immediately cash collateralize all outstanding
Facility L/Cs in accordance with Section 8 hereof, and (b) if such event is
any
other Event of Default and is continuing, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, Agent may,
or upon the request of the Required Lenders, Agent shall, by notice to Borrower,
declare the Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate and, upon demand by Agent, Borrower shall fully
cash
collateralize all outstanding Facility L/Cs in accordance with Section 8 hereof;
and (ii) with the consent of the Required Lenders, Agent may, or upon the
request of the Required Lenders, Agent shall, by notice of default to Borrower,
declare the full amount of all outstanding Obligations to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this Section 9, presentment, demand, protest
and
all other notices of any kind are hereby expressly waived. Additionally, Agent
and each Lender may exercise any and all other rights and remedies available
to
Agent and each Lender at law or in equity to the extent not inconsistent with
the rights specifically granted to Agent and each Lender hereunder.
Notwithstanding
any provisions concerning distribution of payments to the contrary in this
Agreement, so long as any Event of Default exists that has not been waived
by
all Lenders, each Lender shall share in any payments or proceeds, including
proceeds of any collateral, received by Agent or any Lender made or received
at
any time from and after any Event of Default (“Proceeds
after Default”)
in an
amount equal to such Lender’s Ratable Share of the Proceeds after Default;
provided, however, if any one or more of the Lender(s) has not made any funding
when required hereunder, the distribution of Proceeds after Default shall be
adjusted so that each Lender shall receive Proceeds after Default in an amount
equal to (a) the Proceeds after Default multiplied by (b) the percentage
(rounded to five decimal places) of the total amount outstanding funded by
all
Lenders that such Lender has actually funded (including the amount of such
Lender’s participation in outstanding Facility L/Cs). If necessary, Agent and
each Lender shall use the adjustments procedure set forth in subsection 11.8(a)
hereof to make the appropriate distributions to Lenders as set forth in this
paragraph of this Section 9.
THE
AGENT
Appointment.
Each Lender hereby irrevocably designates and appoints JPMorgan Chase Bank,
as
Agent of such Lender under this Agreement
and
each of the Notes and the Guaranty Agreement, and each Lender hereby irrevocably
authorizes JPMorgan Chase Bank, as Agent for such Lender, to take such action
on
its behalf under the provisions of this Agreement, the Notes and the Guaranty
Agreement and to exercise such powers and perform such duties as are expressly
delegated to Agent by the terms of this Agreement, the Notes and the Guaranty
Agreement, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement or
any
Note or the Guaranty Agreement, Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any Note or the Guaranty Agreement or otherwise exist against
Agent.
Delegation
of Duties.
Agent may execute any of its duties under this Agreement by or through agents
or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it
with
reasonable care.
Exculpatory
Provisions.
Neither Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any Note or the Guaranty Agreement (except for its or such
Person’s own gross negligence or willful misconduct) or (ii) responsible in any
manner to any of the Lenders for any recitals, statements, representations
or
warranties made by Borrower or any of Borrower’s Subsidiaries or any office
thereof contained in this Agreement or any Note or the Guaranty Agreement or
in
any certificate report, statement or other document referred to or provided
for
in, or received by Agent under connection with, this Agreement or any Note
or
the Guaranty Agreement or for the value, effectiveness, genuineness,
enforceability or sufficiency of this Agreement, the Note Guaranty Agreement,
or
for any failure of Borrower or any of Borrower’s Subsidiaries its obligations
hereunder or thereunder. Agent shall be under no obligation to any Lender to
inquire as to the observance or performance of any of the agreements or
conditions of, this Agreement, the Notes, or the Guaranty Agreement, or to
inspect books or records of Borrower or any of Borrower’s
Subsidiaries.
Reliance
by Agent.
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, the Guaranty Agreement, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, facsimile, telecopy, telex
or teletype message, statement, order or other document or conversation believed
by it in good faith to be genuine and correct and to have been signed, sent
or
made by the proper Person or Persons and upon advice and statements of
legal
counsel
(including, without limitation, counsel to Borrower or any of Borrower’s
Subsidiaries), independent accountants and other experts selected by Agent.
Agent may deem and treat the payee of any Note as the owner thereof for all
purposes. Agent shall be fully justified in failing or refusing to take any
action under this Agreement, the Notes or the Guaranty Agreement unless it
shall
first receive such advice or concurrence of the Required Lenders or, in the
case
of items set forth in subsection 11.1 hereof that require written consent of
all
Lenders, all Lenders as it deems appropriate or it shall first be indemnified
to
its satisfaction by all Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement, the Notes and the Guaranty Agreement in accordance
with a request of the Required Lenders or, in the case of items set forth in
subsection 11.1 hereof that require written consent of all Lenders, all Lenders,
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all Lenders and all future holders of the
Notes.
Notice
of Default.
Agent shall not be deemed to have knowledge or notice of the occurrence of
any
Default or Event of Default hereunder (other than any failure of Borrower to
pay
amounts payable under this Agreement or the other Loan Documents) unless Agent
has received notice from any Lender or Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is
a
“notice of default”. If Agent receives such a notice, Agent shall give notice
thereof to Lenders. Agent shall take such action with respect to such Default
or
Event of Default as shall be reasonably directed by the Required Lenders or,
in
the case of items set forth in subsection 11.1 hereof that require written
consent of all Lenders, all Lenders; provided that, unless and until Agent
shall
have received such directions, Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default
or
Event of Default as it shall reasonably deem advisable in the best interests
of
Lenders.
Non-Reliance
on Agent and Other Lenders.
Each Lender expressly acknowledges that neither Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by Agent hereinafter taken,
including any review of the affairs of Borrower and Borrower’s Subsidiaries
shall be deemed to constitute any representation or warranty by Agent to any
Lender. Each Lender represents to Agent that it has, independently and without
reliance upon Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of Borrower and Borrower’s Subsidiaries and made
its own decision to make its extensions of credit hereunder and enter into
this
Agreement. Each Lender also
represents
that it will, independently and without reliance upon Agent or any other Lender,
and based on such documents and information as it shall deem appropriate at
the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, the Notes and the Guaranty
Agreement, and to make such investigation as it deems necessary to inform itself
as to the business, operations, property, financial and other condition and
creditworthiness of Borrower and Borrower’s Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by
Agent hereunder, Agent shall not have any duty or responsibility to provide
any
Lender with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of Borrower or
any
of Borrower’s Subsidiaries which may come into the possession of Agent or any of
its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
Indemnification.
Each Lender agrees to indemnify Agent in its capacity as such (to the extent
not
reimbursed by Borrower and any of Borrower’s Subsidiaries and without limiting
the obligation of Borrower and Borrower’s Subsidiaries to do so), ratably
according to its Ratable Share, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Notes)
be imposed on, incurred by or asserted against Agent in any way relating to
or
arising out of this Agreement, the Notes, the Guaranty Agreement or any
documents contemplated by or referred to herein or the transactions contemplated
hereby or any action taken or omitted by Agent under or in connection with
any
of the foregoing; provided that no Lender shall be liable for the payment of
any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from Agent’s
gross negligence or willful misconduct. The agreements in this subsection shall
survive the payment of the Notes and all other amounts payable
hereunder.
Agent
in Its Individual Capacity.
Agent (in its individual capacity) and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with Borrower or
any
of Borrower’s Subsidiaries as though Agent were not the Agent hereunder. With
respect to its loans made or renewed by it and any Note issued to it and with
respect to any Facility L/C issued by it, Agent (in its individual capacity)
shall have the same rights and powers under this Agreement as any Lender and
may
exercise the same as though it were not the Agent, and the terms “Lender” and
“Lenders” shall include Agent in its individual capacity.
Delegation
to Affiliates.
Borrower and Lenders agree that the Agent may delegate any of its duties under
this Agreement to any of its affiliates. Any such affiliate (and such
affiliate’s directors, officers, agents and employees)
which
performs
duties in connection with this Agreement shall be entitled to the same benefits
of the indemnification, waiver and other protective provisions to which the
Agent is entitled under Sections 10 and 11 hereof.
Successor
Agent.
Agent (a) may resign as agent upon 30 days’ notice to the Lenders and (b) may be
removed at any time with or without cause by the Required Lenders, provided,
however, that, as long as no Event of Default has occurred that is continuing,
such removal of the Agent shall be subject to Borrower’s written approval, which
shall not be unreasonably withheld, conditioned or delayed. Upon any such
resignation or removal, the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, provided, however, that, as long
as
no Event of Default has occurred that is continuing, such appointment of a
successor agent shall be subject to Borrower’s written approval, which shall not
be unreasonably withheld, conditioned or delayed. Any successor agent appointed
as herein provided shall succeed to the rights, powers and duties of Agent,
and
the term “Agent” shall mean such successor agent effective upon its appointment,
and the former Agent’s rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such former Agent or
any
of the parties to this Agreement or any holders of the Notes. After any retiring
Agent’s resignation hereunder as agent, the provisions of this Section 10 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement.
Syndication
Agent, Documentation Agent and Co-Agent.
None of the Lenders identified in this Agreement as a “Syndication Agent,”
“Documentation Agent” or “Co-Agent” shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such. Without limiting the foregoing, none of
such
Lenders shall have or be deemed to have a fiduciary relationship with any
Lender. Each Lender hereby makes the same acknowledgements with respect to
such
Lenders as it makes with respect to the Agent in subsection
10.6.
MISCELLANEOUS
Amendments
and Waivers.
Agent and Borrower may, from time to time, with the written consent of the
Required Lenders, enter into written amendments, supplements or modifications
for the purpose of adding any provisions to this Agreement or the Notes or
changing in any manner the rights of Lenders or Borrower hereunder or
thereunder, and with the consent of the Required Lenders, Agent on behalf of
Lenders may execute and deliver to Borrower a written instrument waiving, on
such terms and conditions as Agent may specify in such instrument, any of the
requirements of this Agreement, the Notes or any Default or Event of Default
and
its consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall extend the final
maturity
of any Note (except as otherwise provided in subsection 2.7(b) or (c)), or
reduce the rate or extend the time of payment of interest or fees thereon or
reduce the principal amount thereof, or change the amount or terms of any
Lender’s Revolving Credit Loan or Ratable Share or the amount of any Lender’s
Commitment (except for (i) changes resulting from an assignment permitted
hereunder or (ii) as provided in subsection 2.6(b) or 3.10 hereof), or change
the Borrowing Base, or amend, modify, change any provision of the Guaranty
Agreement, or release the guaranties provided under the Guaranty Agreement,
or
amend, modify, change or waive any provision of this subsection, or reduce
the
percentage specified in the definition of Required Lenders, or consent to the
assignment or transfer by Borrower of any of its rights and obligations under
this Agreement, or consent to the modification or termination of any
subordination agreement or provisions that evidence Subordinated Indebtedness
(except as otherwise provided in subsection 7.9), increase the dollar amount
set
forth in subsection 2.6(b)(i)(C) or consent to the release of any collateral,
or
amend, modify or change any other provision of this Agreement that requires
the
consent of all Lenders, in each case without the written consent of all Lenders;
and provided, further, that no such waiver and no such amendment, supplement
or
modification shall alter in any way Swingline Lender’s rights or obligations
with respect to Swingline Loans without the consent of Swingline Lender; and
provided, further, that no such waiver and no such amendment, supplement or
modification shall amend, modify, change or waive any provision relating to
the
rights or obligations of Agent without the consent of Agent. Any such waiver
and
any such amendment, supplement or modification shall be binding upon Borrower,
Agent and each Lender, and all future holders of the Notes. In the case of
any
waiver, Borrower, Agent and each Lender shall be restored to their former
position and rights hereunder and under the outstanding Notes, and any Default
or Event of Default waived shall be deemed to be cured and not continuing;
but
no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
Notices.
All notices, requests and demands to or upon the respective parties hereto
to be
effective shall be in writing or by telecopy or other electronic facsimile
and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or when deposited in the United States
mail, Registered or Certified, Return Receipt Requested, postage prepaid, or,
in
the case of telecopy or other electronic facsimile notice, when receipt
confirmed by sender’s electronic facsimile machine, addressed as follows in the
case of Borrower, as set forth below its signature on the signature pages hereof
in the case of Agent and as set forth in its administrative questionnaire
furnished to Agent in the case of each Lender, or to such other address as
may
be hereafter notified by the respective parties hereto and any future holders
of
any Note:
|
Borrower:
|
M/I
Homes, Inc.
0
Xxxxxx Xxxx
Xxxxxxxx,
Xxxx 00000
Attention:
Xxxxxxx X. Creek
Facsimile:
(000) 000-0000
with
a copy to: J. Xxxxxx Xxxxx, Esq.
Facsimile:
(000) 000-0000
|
No
Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of Agent or
any
Lender, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof
or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and, except
for
rights the exercise of which require consent of the Required Lenders or all
Lenders, as appropriate, under this Agreement, not exclusive of any rights,
remedies, powers and privileges provided by law.
Participants.
Any
Lender may, in the ordinary course of its commercial banking business and in
accordance with applicable law, at any time sell to one or more Lenders or
other
financial institutions (“Participants”)
participating interests in any Revolving Credit Loan owing to such Lender,
any
Note held by such Lender, any interest (including any Reimbursement Obligation)
in any Facility L/C with respect to such Lender, any Commitment of such Lender,
or any other interest of such Lender hereunder; provided, however, that upon
the
sale of any participating interest the selling Lender shall provide promptly
to
Borrower and Agent notice of such sale; and provided further, however, that
(except as otherwise provided in subsection (c) below) no Participant’s consent
shall be required to approve any amendments, waivers or other modifications
of
this Agreement or of any document contemplated by this Agreement, and no
participation agreement shall provide any Participant with such rights. In
the
event of any such sale by a Lender of participating interests to a Participant,
such Lender’s obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, and such Lender shall remain the holder of any
such
Note for all purposes under this Agreement, and, except as provided in the
immediately following sentence, Borrower, the other Lenders, and Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. However, any Participant
that is an affiliate of any Lender shall have the right to deal directly with
any other Lender and Borrower with respect to any matter that is the subject
of
this Agreement, and Lenders and Borrower agree to deal directly with such
affiliate Participant(s); provided, however, that each Lender needs to deal
only
with other Lenders (and not such other Lenders’ affiliate Participant(s)), in
those matters in which the consent of any one or more Lenders is required.
The
rights set forth in the immediately preceding sentence shall apply only to
Participants that are affiliates of any Lender, and such rights do not apply
to
any Participants that are not affiliates of any Lender. Borrower agrees that
if
amounts outstanding under this Agreement or the Notes are due and unpaid, or
shall have been declared or shall have
become
due and payable upon the occurrence of a Default or an Event of Default, each
Participant shall be deemed to have the right of set-off provided to Lenders
in
this Agreement in respect of its participating interest in amounts owing under
this Agreement or any Note or Reimbursement Obligation to the same extent as
if
the amount of its participating interests were owing directly to it as a Lender
under this Agreement, any Note or any Facility L/C or participation in any
Facility L/C.
Borrower
authorizes each Lender and Agent to disclose to any Participant and any
prospective Participant any and all financial information in such Lender’s or
Agent’s possession concerning Borrower and any of Borrower’s Subsidiaries which
has been delivered to such Lender or Agent by Borrower or Borrower’s
Subsidiaries pursuant to this Agreement or which has been delivered to such
Lender or Agent by Borrower or Borrower’s Subsidiaries in connection with such
Lender’s or Agent’s credit evaluation of Borrower and Borrower’s Subsidiaries
prior to entering into this Agreement. Any Participant or prospective
Participant shall be subject to the confidentiality provisions of this
Agreement.
Each
Lender shall with respect to its Participants, if any, retain the sole right
to
approve, without the consent of any Participant, any amendment, modification
or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan or Commitment in which such
Participant has an interest which forgives principal, interest or fees (other
than Agent’s fees) or reduces the interest rate or fees (other than Agent’s
fees) payable with respect to any such Loan or Commitment, postpones any date
fixed for any regularly scheduled payment of principal of, or interest or fees
(other than Agent’s fees) on, any such Loan or Commitment or releases any
Guarantor.
Borrower
agrees that each Participant shall be deemed to have the rights of set-off
provided in subsection 11.8 hereof in respect of its participating interest
in
amounts owing under the Loan Documents to the same extent as if the amount
of
its participating interest were owing directly to it as a Lender under the
Loan
Documents, provided that each Lender shall retain the right of set-off provided
in subsection 11.8 hereof with respect to the amount of participating interests
sold to each Participant. Lenders agree to share with each Participant, and
each
Participant, by exercising the right of set-off provided in subsection 11.8
hereof, agrees to share with each Lender, any amount received pursuant to the
exercise of its right of set-off, such amounts to be shared in accordance with
subsection 11.8 hereof as if each Participant were a Lender.
Except
for the sale of participating interests as described in this subsection 11.4
and
the assignments as described in subsection 11.7 hereof, no Lender may sell
or
assign its rights and interests under this Agreement without the written consent
of each Lender and Borrower, provided that after the occurrence of a Default
or
an Event of Default that has not been waived by all Lenders, Borrower’s consent
to such sale or assignment shall not be required.
Survival
of Representations and Warranties.
All representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the Notes and
shall remain in full force and effect until this Agreement is terminated, all
Facility L/Cs are cancelled or are fully collateralized
with
cash in accordance with Section 8 hereof and all Obligations (including Facility
L/C Obligations that are not fully collateralized with cash) are paid in
full.
Payment
of Expenses and Taxes.
Borrower agrees:
to
pay or
reimburse Agent for all its out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of, and any
amendment, supplement or modification to, this Agreement, the Notes, the
Guaranty Agreement, the Facility L/Cs and any other documents prepared in
connection herewith, and the consummation of the transactions contemplated
hereby and thereby, including without limitation the reasonable fees and
disbursements of counsel to Agent; and
to
pay or
reimburse Agent and each Lender for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the Notes, the Guaranty Agreement, the Facility L/Cs and any such
other documents, including without limitation the reasonable fees and
disbursements of counsel to Agent and each Lender.
Successors
and Assigns; Assignment.
This
Agreement shall be binding upon and inure to the benefit of Borrower, Agent
and
each Lender, all future holders of the Notes and their respective successors
and
assigns, except that Borrower may not assign or transfer any of its rights
or
obligations under this Agreement without the prior written consent of all
Lenders, which consent may be withheld by any Lender in its sole discretion;
and
provided further that the rights of each Lender to transfer or assign its rights
and/or obligations hereunder shall be limited as set forth below in part (b)
of
this subsection 11.7. Notwithstanding the above (including anything set forth
in
part (b) of this subsection 11.7), nothing herein shall restrict, prevent or
prohibit any Lender from (A) pledging its Loans hereunder to a Federal Reserve
Bank in support of borrowings made by such Lender from such Federal Reserve
Bank, (B) granting assignments in such Lender’s Loans and/or Commitment
hereunder to its parent company and/or to any affiliate of such Lender or to
any
existing Lender or affiliate thereof and (C) selling participations as set
forth
in subsection 11.4 hereof.
In
addition to the assignments permitted by subsection 11.7(a) hereof, each Lender
may, with the prior written consent of the Borrower and the Agent (provided
that
no consent of the Borrower shall be required during the existence and
continuation of an Event of Default), which consents shall not be unreasonably
withheld, conditioned or delayed, assign all or a portion of its rights and
obligations hereunder pursuant to an assignment agreement substantially in
the
form of Exhibit
H
attached
hereto and made a part hereof (the “Assignment
Agreement”)
to one
or more Eligible Assignees; provided that (A) any such assignment shall be
in a
minimum aggregate amount of the lesser of (1) $5,000,000 or any larger amount
which is an even multiple of $1,000,000 or (2) the remaining amount of the
Commitment held by such Lender, and (B) each such assignment shall be of a
constant, not varying, percentage of all of the assigning Lender’s rights and
obligations under the Commitment being assigned. Any assignment under this
subsection 11.7(b) shall be effective upon satisfaction of the conditions set
forth above and delivery to the Agent of a duly executed Assignment Agreement
together with a
transfer
fee of $3,500 payable by the Assignee to the Agent for its own account. Upon
the
effectiveness of any such assignment, the assignee shall become a “Lender” for
all purposes of this Agreement and the other documents contemplated hereby
and,
to the extent of such assignment, the assigning Lender shall be relieved of
its
obligations hereunder to the extent of the Loans and Commitment components
being
assigned. The Borrower agrees that upon notice of any such assignment and
surrender of the appropriate Note, it will promptly provide to the assigning
Lender and to the assignee separate promissory notes in the amount of their
respective interests substantially in the form of the original Note (but with
notation thereon that it is given in substitution for and replacement of the
original Note or any replacement notes thereof).
By
executing and delivering an Assignment Agreement in accordance with this
subsection 11.7(b), the assigning Lender thereunder and the assignee thereunder
shall be deemed to confirm to and agree with each other and the other parties
hereto as follows: (i) such assigning Lender warrants that it is the legal
and
beneficial owner of the interest being assigned thereby free and clear of any
adverse claim and the assignee warrants that it is an Eligible Assignee; (ii)
except as set forth in clause (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement, any of the other documents contemplated hereby or any other
instrument or document furnished pursuant hereto or thereto, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement, any of the other documents contemplated hereby or any other
instrument or document furnished pursuant hereto or thereto or the financial
condition of Borrower or the performance or observance by Borrower of any of
its
obligations under this Agreement, any of the other documents contemplated hereby
or any other instrument or document furnished pursuant hereto or thereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment Agreement; (iv) such assignee confirms that it has received
a copy of this Agreement, the other documents contemplated hereby and such
other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment Agreement; (v) such assignee
will independently and without reliance upon the Agent, such assigning Lender
or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or
not taking action under this Agreement and other documents contemplated hereby;
(vi) such assignee appoints and authorizes the Agent to take such action on
its
behalf and to exercise such powers under this Agreement or any other document
contemplated thereby as are delegated to the Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all the obligations which by the terms of this Agreement and the other documents
contemplated hereby are required to be performed by it as a Lender.
Adjustments;
Set-off.
If
any
Lender (a “benefited
Lender”)
shall
at any time receive any payment of all or part of its Loans or Reimbursement
Obligations owing to it, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off, pursuant
to
events or proceedings of the nature referred to in paragraph (5) of Section
9
hereof, or otherwise) in a greater proportion than any such payment to any
other
Lender in respect of
such
other Lender’s Loans or Reimbursement Obligations owing to it, or interest
thereon, such benefited Lender shall purchase for cash from the other Lenders
such portion of each such other Lender’s Loans or Reimbursement Obligations
owing to it, as shall be necessary to cause such benefited Lender to share
the
excess payment or benefits of such collateral or proceeds ratably with each
of
the Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned,
to
the extent of such recovery, but without interest. Borrower agrees that each
Lender so purchasing a portion of another Lender’s Loans or Reimbursement
Obligations owing to it may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if
such
Lender were the direct holder of such portion.
In
addition to those rights and remedies of each Lender provided by law, subject
to
the terms and conditions of this Agreement, upon the occurrence of an Event
of
Default and acceleration of the Obligations, each Lender shall have the right,
without prior notice to Borrower or Borrower’s Subsidiaries, any such notice
being expressly waived by Borrower and Borrower’s Subsidiaries to the extent
permitted by applicable law, to set-off and apply against any indebtedness,
whether matured or unmatured, of Borrower to such Lender, any amount held by
or
owing from such Lender to or for the credit or the account of Borrower or
Borrower’s Subsidiaries at, or at any time after, the happening of any of the
above-mentioned events, and the aforesaid right of set-off may be exercised
by
each Lender against Borrower and Borrower’s Subsidiaries or against any trustee
in bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
receiver, custodian or execution, judgment or attachment creditor of Borrower
and Borrower’s Subsidiaries, or against anyone else claiming through or against
Borrower and Borrower’s Subsidiaries or such trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, receiver, custodian
or execution, judgment or attachment creditor, notwithstanding the fact that
such right of set-off shall not have been exercised by such Lender prior to
the
making, filing or issuance of, or service upon such Lender of, or of notice
of,
any such petition; assignment for the benefit of creditors; appointment or
application for the appointment of a receiver; or issuance of execution,
subpoena, order or warrant. Each Lender agrees promptly to notify Borrower
and,
if set-off is made against Borrower’s Subsidiaries, Borrower’s Subsidiaries
after any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
WAIVER
OF JURY TRIAL.
EACH
LENDER AND BORROWER, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT
WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY
OF
THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT
OF
THE AGREEMENT OR ANY RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED BY THE AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY OF THEM. NONE OF AGENT, ANY LENDER
OR BORROWER SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH
ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH
A
JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE
PROVISIONS
SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY
ANY
OF AGENT, ANY LENDER OR BORROWER EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY
ALL
OF THEM. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE LENDERS TO PROVIDE
THE
COMMITMENT HEREUNDER.
Confidentiality.
Agent and each Lender shall hold all confidential information obtained pursuant
to the requirements of the Agreement which has been identified as such by
Borrower in accordance with Agent’s or such Lender’s customary procedures for
handling confidential information of this nature and in accordance with safe
and
sound banking practices and in any event may make disclosure to its examiners,
affiliates, outside auditors, counsel and other professional advisors in
connection with the Agreement or as reasonably required by any bona fide
Participant or assignee or prospective Participant or assignee in connection
with any contemplated assignment thereof or participation therein or as required
or requested by any governmental agency or representative thereof or pursuant
to
legal process. Without limiting the foregoing, it is expressly understood that
such confidential information which, at the time of disclosure is in the public
domain or which, after disclosure, other than disclosure by Agent or any Lender,
becomes part of the public domain or information which is obtained by Agent
or
any Lender prior to the time of disclosure and identification by Borrower under
this subsection, or information received by Agent or any Lender from a third
party shall not be subject to the confidentiality requirements of this
subsection 11.10. Nothing in this subsection or otherwise shall prohibit Agent
or any Lender from disclosing any confidential information to any other Lender
in connection with the Loans contemplated by this Agreement or render it liable
in connection with any such disclosure.
Counterparts;
Effective Date.
This Agreement may be executed by one or more of the parties to this Agreement
on any number of separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. This
Agreement shall become effective upon the receipt by Agent and each Lender
of
executed counterparts of this Agreement by each of the parties
hereto.
Governing
Law.
This Agreement, the Notes and the rights and obligations of the parties under
this Agreement and the Notes shall be governed by, and construed and interpreted
in accordance with the internal laws of the State of New York but giving effect
to federal laws applicable to national banks.
Integration.
This Agreement (including Borrower’s obligation to pay the fees as provided in
the Agent’s Fee Letter referred to herein) and the Loan Documents contain the
entire agreement between the parties relating to the subject matter
hereof and supersede all oral statements and prior writings with respect
thereto.
Indemnity.
Borrower hereby agrees to defend, indemnify, and hold Agent, Arranger, each
LC
Issuer and each Lender and their respective directors, officers, employees
and
agents harmless from and against all claims, damages, judgments, penalties,
costs, and expenses (including attorney fees and court costs now or hereafter
arising from the aforesaid enforcement of this clause) which any of them may
pay
or incur arising out of or relating to this Agreement, the other Loan Documents,
the transactions contemplated hereby or the direct or indirect application
or
proposed application of the proceeds of any Loan hereunder except to the extent
that they are determined in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the party seeking indemnification. This indemnity shall survive
the termination of this Agreement.
Severability
of Provisions.
Any provision of any Loan Document which is prohibited or unenforceable in
any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions of such Loan Document or affecting the validity or enforceability
of
such provision in any other jurisdiction.
Submission
to Jurisdiction.
Borrower hereby submits to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and of any New York State
court sitting in New York, New York for purposes of all legal proceedings which
may arise hereunder or under the Notes. Borrower irrevocably waives to the
fullest extent permitted by law, any objection which it may have or hereafter
have to the laying of the venue of any such proceeding brought in such a court,
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum. Borrower consents to process being served in any
such
proceeding by the mailing of a copy thereof by registered or certified mail,
postage prepaid, to its address specified in subsection 11.2 hereof or in any
other manner permitted by law.
Governmental
Regulation.
Anything contained in this Agreement to the contrary notwithstanding, no Lender
shall be obligated to extend credit to Borrower in violation of any limitation
or prohibition provided by any applicable statute or
regulation.
No
Fiduciary Duty.
The relationship between Borrower and Lenders and Agent shall be solely that
of
borrower and lender. Neither Agent nor any Lender shall have any fiduciary
responsibilities to Borrower. Neither Agent nor any Lender undertakes any
responsibility to Borrower to review or inform the
Borrower
of any matter in connection with any phase of Borrower’s business or
operations.
FIN
46.
For purposes of determining compliance with the financial covenants in this
Agreement, the application of Financial Accounting Standards Board
Interpretation No. 46 shall be disregarded with respect to financial
consolidation of any entity that is not a subsidiary of the
Borrower.
USA
PATRIOT Act.
Each Lender that is subject to the requirements of the USA PATRIOT Act (Title
III of Pub. L. 107-56) (signed into law October 26, 2001)) (the
“Act”)
hereby notifies Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies Borrower
and
Guarantors, which information includes the name and address of Borrower and
Guarantors and other information that will allow such Lender to identify
Borrower and Guarantors in accordance with the Act.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
M/I
HOMES, INC.
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief
Financial
Officer and Assistant Secretary
SIGNATURE
PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT WITH M/I HOMES,
INC.
LENDERS
JPMORGAN
CHASE BANK,
N.A.,
as
Agent
and as a Lender
By:
Name:
Title:
Address:
JPMorgan
Chase Bank, N.A.
000
Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxx X’Xxxxx
Facsimile:
(000) 000-0000
SCHEDULE
1
COMMITMENTS
|
Lender
|
Commitment
|
Ratable
Share
|
||
|
JPMorgan
Chase Bank, N.A.
|
$
|
57,500,000
|
8.846153846
|
%
|
|
Wachovia
Bank, National Association
|
57,500,000
|
8.846153846
|
||
|
The
Huntington National Bank
|
55,000,000
|
8.461538461
|
||
|
KeyBank
National Association
|
45,000,000
|
6.923076923
|
||
|
Charter
One Bank, N.A.
|
40,000,000
|
6.153846153
|
||
|
SunTrust
Bank
|
40,000,000
|
6.153846153
|
||
|
AmSouth
Bank
|
35,000,000
|
5.000000000
|
||
|
Bank
of Montreal
|
35,000,000
|
5.000000000
|
||
|
Guaranty
Bank
|
35,000,000
|
5.384615384
|
||
|
National
City Bank
|
35,000,000
|
5.384615384
|
||
|
US
Bank National Association
|
35,000,000
|
5.384615384
|
||
|
LaSalle
Bank National Association
|
30,000,000
|
4.615384615
|
||
|
PNC
Bank, N.A.
|
30,000,000
|
4.615384615
|
||
|
City
National Bank
|
25,000,000
|
3.846153846
|
||
|
Fifth
Third Bank
|
25,000,000
|
3.846153846
|
||
|
Franklin
Bank, S.S.B.
|
25,000,000
|
3.846153846
|
||
|
Comerica
Bank
|
20,000,000
|
3.076923076
|
||
|
Compass
Bank
|
15,000,000
|
2.307692307
|
||
|
Bank
United, F.S.B.
|
10,000,000
|
1.538461538
|
||
|
Total
|
$
|
650,000,000
|
100%
|
|
SCHEDULE
2
EXISTING
L/CS
SCHEDULE
3
|
SUBSIDIARIES
OF BORROWER
|
|
|
1.
Name of Subsidiary:
|
M/I
Financial Corp., an Ohio corporation
|
|
Principal
Place of Business:
|
0
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
Xxxx 00000
|
|
OHIO
0
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
Xxxx 00000
0000
Xxx-Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx,
Xxxx 00000
|
|
|
INDIANA
0000
Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxx 00000
|
|
|
NORTH
CAROLINA
0000
Xxxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
0000
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx Xxxxxxxx 00000
|
|
|
FLORIDA
000
Xxxx Xxxxxxxx Xxxx.
Xxxxxxx,
Xxxxxxx 00000
0000
Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxx 00000
000
Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
0000
Xxxx Xxxxx Xxxxx Xxxx.
Xxxxx
000, Tower 0
Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
|
|
|
SCHEDULE
3
SUBSIDIARIES
OF BORROWER (CONTINUED)
|
|
|
VIRGINIA
00000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxx 00000
|
|
|
2.
Name of Subsidiary: M/I
Homes of Central Ohio, LLC, an Ohio limited liability
company
Principal
Place of Business: 0 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
Xxxx 00000
3.
Name of Subsidiary: M/I
Homes of Cincinnati, LLC, an Ohio limited liability company
Principal
Place of Business: 0000 Xxx-Xxxxx Xxxx.Xxxxx
000
Xxxxxxxx,
Xxxx 00000
|
|
|
4.
Name of Subsidiary:
|
M/I
Homes Service Corp., an Ohio corporation
|
|
Principal
Place of Business:
|
0
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
Xxxx 00000
|
|
5.
Name of Subsidiary:
|
M/I
Properties LLC, an Ohio limited liability
company
|
|
Principal
Place of Business:
|
0
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
Xxxx 00000
|
|
6.
Name of Subsidiary:
|
Northeast
Office Venture, LLC, a Delaware limited liability
company
|
|
Principal
Place of Business:
|
0
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
Xxxx 00000
|
|
7.
Name of Subsidiary
|
TransOhio
Residential Title Agency, Ltd., an Ohio limited liability
Company
|
|
Principal
Place of Business
|
0
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
Xxxx 00000
|
SCHEDULE
3
SUBSIDIARIES
OF BORROWER (CONTINUED)
|
8.
Name of Subsidiary:
|
M/I
Homes of Raleigh, LLC, a Delaware limited liability
company
|
|
Principal
Place of Business:
|
0000
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx Xxxxxxxx 00000
|
|
9.
Name of Subsidiary:
|
M/I
Homes of Charlotte, LLC, a Delaware limited liability
company
|
|
Principal
Place of Business:
|
0000
Xxxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
|
|
10.
Name of Subsidiary:
|
M/I
Homes of DC, LLC, a Delaware limited liability
company
|
|
Principal
Place of Business:
|
00000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxx 00000
|
|
The
following Subsidiaries (nos. 11 and 12) are 100% owned by M/I Homes
of DC,
LLC:
|
|
|
11.
Name of Subsidiary:
|
The
Fields at Perry Hall, L.L.C., a Maryland limited liability
company
|
|
Principal
Place of Business:
|
00000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxx 00000
|
|
12.
Name of Subsidiary:
|
Xxxxxx
Farm, L.L.C., a Maryland limited liability
company
|
|
Principal
Place of Business:
|
00000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxx 00000
|
SCHEDULE
3
SUBSIDIARIES
OF BORROWER (CONTINUED)
|
13.
Name of Subsidiary:
|
M/I
Homes Second Indiana, LLC, an Indiana limited liability
company
|
|
Principal
Place of Business:
|
0000
Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxx 00000
|
|
14.
Name of Subsidiary:
|
M/I
Homes First Indiana LLC, an Indiana limited liability
company
|
|
Principal
Place of Business:
|
0000
Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxx 00000
|
|
The
following Subsidiary (no. 15) is owned 99% by M/I Homes Second Indiana,
LLC (as limited partner) and 1% by M/I Homes First Indiana LLC (as
general
partner)
|
|
|
15.
Name of Subsidiary:
|
M/I
Homes of Indiana, L.P., an Indiana limited
partnership
|
|
Principal
Place of Business:
|
0000
Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxx 00000
|
|
16.
Name of Subsidiary:
|
M/I
Homes of Florida, LLC, a Florida limited liability
company
|
|
Principal
Place of Business:
|
0000
Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxx 00000
|
|
The
following Subsidiaries (nos. 17, 18, 19 and 20) are each 100% owned
by M/I
Homes of Florida, LLC:
|
|
|
17.
Name of Subsidiary:
|
M/I
Homes of Tampa, LLC, a Florida limited liability
company
|
|
Principal
Place of Business:
|
0000
Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxx 00000
|
SCHEDULE
3
SUBSIDIARIES
OF BORROWER (CONTINUED)
|
18.
Name of Subsidiary:
|
M/I
Homes of Orlando, LLC, a Florida limited liability
company
|
|
Principal
Place of Business:
|
000
Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
|
|
19.
Name of Subsidiary:
|
M/I
Homes of West Palm Beach, LLC, a Florida limited liability
company
|
|
Principal
Place of Business:
|
0000
Xxxx Xxxxx Xxxxx Xxxx., Xxxxx 000, Tower 0
Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
|
|
20.
Name of Subsidiary:
|
M/I
Homes of Lake County, LLC, a Florida limited liability
company
|
|
Principal
Place of Business:
|
0000
Xxxx Xxxxxx Xxxxx
Xxxxxxx,
Xxxxxxx 00000
|
|
The
following Subsidiary (no. 21) is 100% owned by M/I Homes of Tampa,
LLC:
|
|
|
21.
Name of Subsidiary:
|
M/I-Majestic
Oaks GP, LLC, a Florida limited liability
company
|
|
Principal
Place of Business
|
0000
Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxx 00000-0000
|
|
22.
Name of Subsidiary:
|
MHO
Holdings, LLC, a Florida limited liability
company
|
|
Principal
Place of Business:
|
0000
Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxx 00000-0000
|
|
The
following Subsidiary (no. 23) is 100% owned by MHO Holdings,
LLC
|
|
|
23.
Name of Subsidiary:
|
MHO,
LLC, a Florida limited liability company
|
|
Principal
Place of Business:
|
0000
Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxx 00000-0000
|
SCHEDULE
3
SUBSIDIARIES
OF BORROWER (CONTINUED)
|
The
following Subsidiary (no. 24) is owned 100% by M/I Homes of Lake
County,
LLC
|
|
|
24.
Name of Subsidiary:
|
Etowah,
LLC, a Florida limited liability company
|
|
Principal
Place of Business:
|
0000
Xxxx Xxxxxx Xxxxx
Xxxxxxx,
Xxxxxxx 00000
|
|
The
following Subsidiary (no. 25) is 50% owned by M/I Homes of Tampa,
LLC and
M/I Homes of Tampa, LLC has control of this Subsidiary for most
purposes
|
|
|
25.
Name of Subsidiary:
|
K-Tampa,
LLC, a Florida limited liability company
|
|
Principal
Place of Business
|
0000
Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxx 00000-0000
|
|
M/I
Homes Foundation, an Ohio nonprofit corporation, is a Subsidiary,
but is
not a Guarantor.
|
SCHEDULE
4
M/I
ANCILLARY BUSINESSES
|
Limited
Liability Corp.
|
Partners
|
%
of
Ownership
|
Principal
Address
|
Business
Conducted at Address
|
|
M/I
Insurance Agency, LLC
|
M/I
Homes, Inc.
Insurance
First of Columbus Agency, Inc.
|
60.0
40.0
|
0
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
Xxxx 00000
|
000
X. Xxxxx Xx., Xxxxx 000
Xxxxxxxx,
Xxxx 00000
|
|
M/I
Title Agency Ltd.
|
M/I
Homes, Inc.
Lawyers
Title Insurance Corp.
|
90
10
|
00000
Xxxxx Xxxx Xxxxx Xxxxxxx
Xxxxx,
Xxxxxxx 00000
|
0000
Xxxxxxxxxx Xxxxxxxxx
Xxxxx,
Xxxxxxx 00000
|
|
000
Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
|
||||
|
Washington/Metro
Residential
Title
Agency, LLC
|
M/I
Homes, Inc.
Potomac
Settlement Services, Inc.
|
70
30
|
0000
Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
|
0000
Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
|
EXHIBIT
A
FORM
OF BORROWING BASE CERTIFICATE
__________
__, ____
To:
Agent
and each Lender
Ladies
and Gentlemen:
This
letter is to comply with subsection 6.3 of the Second Amended and Restated
Credit Agreement dated October 6, 2006 (the “Credit Agreement”), among M/I
Homes, Inc., as Borrower, the Lenders party thereto and JPMorgan Chase Bank,
N.A. as Agent and is for the monthly accounting period ended _______ __, ____.
Capitalized terms used but not defined herein have the meanings given to such
terms in the Credit Agreement.
Attached
hereto is the calculation of the Borrowing Base. All figures in this calculation
are as at the end of the monthly accounting period set forth in the first
paragraph of this letter. The undersigned certifies that the calculation set
forth herein is true and accurate in all material respects.
Certified
by:
__________________________________
[Chief
Financial Officer or Controller] of
M/I
Homes, Inc.
Attachment
Attachment
to
M/I
Homes, Inc.
Borrowing
Base Certificate
____________,
200_
|
Book
Value:
|
$
000’s
|
|||
|
Receivables
|
$
|
|||
|
Housing
Units under Contract and Lots under Contract
|
$
|
|||
|
Speculative
Housing Units
|
$
|
|||
|
Finished
Lots
|
$
|
|||
|
Lots
under Development
|
$
|
|||
|
Unimproved
Entitled Land
|
$
|
|||
|
Total:
|
$_________
|
|||
|
Borrowing
Base Percentages:
|
||||
|
Receivables
|
100%
|
|||
|
Housing
Units under Contract and Lots under Contract
|
90%
|
|||
|
Speculative
Housing Units
|
75%
|
|||
|
Finished
Lots
|
70%
|
|||
|
Lots
under Development
|
50%
|
|||
|
Unimproved
Entitled Land
|
30%
|
|||
|
Borrowing
Base:
|
||||
|
Receivables
|
$
|
|||
|
Housing
Units under Contract and Lots under Contract
|
$
|
|||
|
Speculative
Housing Units
|
$
|
|||
|
Finished
Lots
|
$
|
|||
|
Lots
under Development
|
$
|
|||
|
Unimproved
Entitled Land
|
$___________
|
|||
|
Less
|
||||
|
The
amount (if any) by which Finished Lots, Lots under Development and
Unimproved Entitled Land exceed 45% of Borrowing Base
|
$__________
|
|||
|
Maximum
Borrowing Base Indebtedness:
|
$__________
|
|||
|
Total
Borrowing Base Indebtedness (see (i) below)
|
$__________
|
|||
|
Additional
amount that could be borrowed
|
$__________
|
|||
|
Amount
borrowed on revolver *
|
$__________
|
|||
|
Maximum
revolver borrowings allowed*
|
$__________
|
|||
______________________________________________________________________________
*Includes
Revolving Credit Loans, Swingline Loans, Facility L/Cs (excluding Performance
Letters of Credit) and all Reimbursement Obligations.
|
(i)
|
Total
Borrowing Base Indebtedness
|
|
|
Amount
borrowed on revolver*
|
$
|
|
|
Other
Consolidated Indebtedness
|
$__________
$
|
|
|
Plus
|
||
|
10%
of commitment under M/I Financial Corp. Loan Agreement
Less
Secured
Indebtedness
Subordinated
Indebtedness
M/I
Financial Corp. Agreement Indebtedness
|
$__________
$
$__________
$__________
$__________
|
|
|
Total
|
$__________
|
______________________________________________________________________________
*Includes
Revolving Credit Loans, Swingline Loans, Facility L/Cs (excluding Performance
Letters of Credit) and all Reimbursement Obligations.
EXHIBIT
B
GUARANTY
AGREEMENT
(GUARANTY,
SUBORDINATION AND SUBROGATION AGREEMENT)
THIS
GUARANTY AGREEMENT, effective as of October 6, 2006 between: the corporations
and other entities identified under the caption “GUARANTORS” on the signature
pages hereto (the “Guarantors”)
and
JPMORGAN CHASE BANK, N.A., as agent (the “Agent”) for the Lenders or other
financial institutions that are parties as lenders (collectively, the
“Lenders”),
to
the Credit Agreement referred to below.
RECITALS
|
A.
|
M/I
HOMES, INC. (“Borrower”), the Agent and the Lenders are parties to a
Second Amended and Restated Credit Agreement effective as of October
6,
2006 (such agreement, together with any amendments, supplements or
other
modifications thereto from time to time, collectively, the “Credit
Agreement”) providing, subject to the terms and conditions thereof, for
extensions of credit (by making of loans and issuing letters of credit)
to
be made by the Lenders to Borrower in an aggregate principal or face
amount not exceeding $650,000,000 (subject to increases thereof to
an
amount not to exceed $1,000,000,000 as provided in the Credit
Agreement).
|
|
B.
|
Under
and pursuant to the Credit Agreement, Borrower and each Guarantor
desire
to utilize their borrowing potential on a consolidated basis to the
same
extent possible as if they were to merge into a single corporate
entity.
|
|
C.
|
Each
of the Guarantors has determined that it will benefit specifically
and
materially from the borrowings contemplated by the Credit
Agreement.
|
|
D.
|
It
is both a condition precedent to the obligations of the Lenders to
make
the loans and take other actions contemplated by the Credit Agreement
and
a desire of each Guarantor that each other Guarantor execute and
deliver
to the Agent for the benefit of the Lenders a counterpart of this
Guaranty
Agreement.
|
|
E.
|
Borrower
and the Guarantors have requested and bargained for the structure
and
terms of the borrowings contemplated by the Credit
Agreement.
|
Therefore,
in consideration of the mutual covenants and agreements contained in the Credit
Agreement and to induce Lenders and Agent to make the extensions of credit
thereunder, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantors have agreed to
enter into this Guaranty Agreement. Accordingly, the parties hereto agree as
follows:
1. Incorporation;
Definitions, Construction; Terms.
The
Credit Agreement, including defined terms (unless otherwise defined herein),
rules of construction and terms and conditions, is hereby incorporated herein
and made a part hereof.
2. Guaranteed
Obligations.
The
term “Guaranteed Obligations” shall mean (i) the unpaid principal of and
interest on (including, without limitation, interest accruing after the maturity
of the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Notes, the
Reimbursement Obligations and all other obligations (including the Obligations)
and liabilities of Borrower to the Lenders or Agent, whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter
incurred, which may arise under, out of, or in connection with, the Credit
Agreement, the Notes, the Facility L/Cs or any other document made, delivered
or
given in connection therewith, whether on account of principal, interest, fees,
indemnities, costs, expenses (including, without limitation, all fees and
expenses of counsel to the Lenders and to Agent and all disbursements) or
otherwise and (ii) all amounts from time to time owing to the Lenders or the
Agent by any Guarantor hereunder or under the Credit Agreement, the Notes,
the
Facility L/Cs or any other document made, delivered or given in connection
therewith.
3. Payment
Guaranty.
The
Guarantors hereby jointly and severally unconditionally and absolutely guarantee
to each Lender and the Agent, for the benefit of each Lender, and their
successors and assigns, the due and punctual payment when due (whether at the
stated maturity, by acceleration or otherwise) of the Guaranteed Obligations,
without deduction for any claim, setoff or counterclaim of Borrower or any
of
the Guarantors or for the loss of contribution of any Guarantor, and the due
and
punctual performance and observance by Borrower of all the terms, covenants
and
conditions of the Credit Agreement and the Notes, whether according to the
present terms thereof, at any earlier or accelerated date or dates as provided
therein, or pursuant to any extension of time, whether one or more, or to any
change or changes in the terms, covenants and conditions thereof, now or at
any
time hereafter made or granted. The obligations of each of the Guarantors are
joint and several, primary, continuing and absolute and unconditional
obligations of payment and performance, enforceable with or without proceeding
against Borrower, any Guarantor or any security and/or before, after or
contemporaneously with proceeding against Borrower, any Guarantor or any
security. This Guaranty Agreement shall be effective regardless of the solvency
or insolvency of Borrower or any Guarantor at any time, the extension or
modification of the Guaranteed Obligations by operation of law or otherwise,
or
the subsequent incorporation, reorganization, merger or consolidation of
Borrower or any Guarantor, or any other change in composition, nature,
personnel, ownership or location of Borrower or any Guarantor.
4. Waiver,
Notice, Amendments to Guaranteed Obligations.
In
regard to any of the Guaranteed Obligations, or any evidence thereof, each
of
the Guarantors hereby expressly jointly and severally waive diligence,
presentment, protest, notice of dishonor, demand for payment, extension of
time
for payment (whether one or more), notice of acceptance of this Guaranty
Agreement, notice of nonpayment at maturity, notice of indulgences, notice
of
Borrower or any Guarantor incurring at any time any additional obligation to
the
Lenders or Agent which will be guaranteed hereunder, notice of any defaults
or
disputes involving Borrower or any Guarantor, of any settlement or adjustment
of
such defaults or disputes and of any settlement with or release of any Guarantor
and notices of any other kind, and consents to any and all forbearances and
extensions, whether one or more, of the time for payments set forth in the
Credit Agreement and the Notes, and to any and all changes in the terms,
covenants and
conditions
thereof hereafter made or granted and to any and all substitutions, exchanges
or
releases of any or all collateral therefor. The Guarantors also hereby jointly
and severally consent to and waive notice of any arrangements or settlements
made in or out of court in the event of receivership, liquidation, readjustment,
reorganization, arrangement or assignment for the benefit of creditors of
Borrower or any Guarantor, any proceeding or case under the Bankruptcy Code,
or
in which a custodian (as defined in the Bankruptcy Code) is appointed or
existing, and anything whatsoever, whether or not herein specified, which may
be
done or waived by or between or among Agent, the Lenders and Borrower and/or
Agent, the Lenders and any Guarantor. Each of the Guarantors shall remain
jointly and severally liable under this Guaranty until all of the Guaranteed
Obligations shall have been fully paid and all of the terms, covenants and
conditions of the Credit Agreement and the Notes shall have been fully performed
and observed by Borrower and the Commitments have terminated, notwithstanding
any act, commission or thing which might otherwise operate as a legal or
equitable discharge of such Guarantor.
5. Collection
Costs.
If any
of the Guarantors fails to pay any of the Guaranteed Obligations to Agent for
the account and benefit of the Lenders promptly upon demand therefor and any
Lender or Agent on behalf of any Lender subsequently files one or more suits
against such Guarantor to collect on and enforce this Guaranty Agreement, each
Guarantor hereby jointly and severally agrees to pay all of such Lender’s and
Agent’s costs related thereto, including without limitation all reasonable
attorneys’ fees, court costs and other legal expenses. If, by other than the
express agreement of the Lenders and Agent, the accrual of fees and/or interest,
or the payment thereof by Borrower, as a part of the Guaranteed Obligations
is
at any time delayed or precluded as to Borrower, the Guaranteed Obligations,
for
purposes of this Guaranty Agreement and the obligations of each of the
Guarantors hereunder, shall be calculated without regard to such delay or
preclusion.
6. No
Conditions to Enforcement.
The
Guarantors agree that this Guaranty may be enforced by any Lender or Agent
for
the benefit of the Lenders without first resorting to or exhausting any other
security or collateral or without first having recourse to any property through
foreclosure proceedings or otherwise; however, nothing contained herein shall
prevent any Lender or Agent for the benefit of the Lenders from instituting
and
maintaining suit on, foreclosing or causing to be foreclosed any lien(s) or
from
exercising any other rights thereunder, and if such foreclosure or other remedy
is availed of, only the net proceeds therefrom, after deduction of all charges
and expenses of every kind and nature whatsoever, shall be applied to the
reduction of the Guaranteed Obligations, and no Lender or Agent shall be
required to institute or prosecute proceedings to recover any deficiency as
a
condition of payment hereunder or of enforcement hereof. At any sale or other
disposition of any or all of any security or collateral for any or all of the
Guaranteed Obligations, whether by trustee’s sale, sale by a court of competent
jurisdiction, foreclosure or otherwise, any Lender or Agent for the benefit
of
any Lender may at its discretion purchase all or any part of such collateral
so
sold or offered for sale or other disposition for its own account(s) and may
apply the amount bid therefor, and any proceeds of sale or other disposition
against the Guaranteed Obligations or any part(s) thereof in any order(s) or
amount(s) as such Lender or Agent for the benefit of the Lenders sees fit in
its
sole judgment.
7. No
Assignment.
The
obligations of each of the Guarantors hereunder cannot be assigned or
transferred in any manner whatever, directly or indirectly, by operation of
law
or otherwise, without the prior written consent of all of the Lenders, which
consent may be withheld in any circumstances. However, each of the Guarantors
agrees that this Guaranty shall inure to the benefit of and may be enforced
by
any Lender and/or Agent for the benefit of the Lenders and by any subsequent
holder or assignee of any or all of the Guaranteed Obligations and shall be
binding upon and enforceable against such Guarantor and upon its legal
representatives, successors and permitted assigns.
8. Waiver
of Subrogation.
The
Guarantors hereby irrevocably waive any and all rights they may now or hereafter
have under any agreement or at law or in equity (including without limitation
any law subrogating such Guarantor to the rights of the Lenders and/or Agent
for
the benefit of the Lenders) to assert any claim against or seek contribution,
indemnification or any other form of reimbursement from the Borrower or any
other Guarantor for any payment made by such Guarantor under or in connection
with this Guaranty or otherwise.
9. Subordination.
All
indebtedness and obligations of Borrower or any other Guarantor to any of the
Guarantors (collectively, the “Claims”), whether secured or unsecured, now
existing or hereafter arising, direct or indirect, absolute or contingent,
are
hereby subordinated to the priority of all of the Guaranteed Obligations. The
Guarantors agree that, until all of the Guaranteed Obligations have been paid
and satisfied in full and the Commitments have terminated, (a) except on behalf
of and pursuant to instructions of Agent for the benefit of the Lenders, the
Guarantors will not ask, demand, xxx for, take or receive all or any part of
the
Claims or any security therefor, whether or not upon any distribution of assets
or readjustment of indebtedness of Borrower or any Guarantor, and (b) the
Guarantors will deliver to Agent for the benefit of the Lenders from time to
time such instruments, assignments, evidences of indebtedness and such other
things as, in the judgment of Agent, are necessary or appropriate to effect
the
objectives of this Section 9.
10. Successive
Actions.
Any one
or more successive and/or concurrent actions may be brought hereon against
any
of the Guarantors, whether in the same action, if any, brought against Borrower,
the then owner of any collateral securing Borrower’s obligations and/or any
other party, or in separate actions, as often as the Lenders or Agent for the
benefit of the Lenders or the legal holder or holders of or assigns of the
Lenders or Agent for the benefit of the Lenders in their sole discretion, may
deem advisable.
11. Acceleration;
Default.
All or
any part of the Guaranteed Obligations shall be immediately due and payable,
and
all liabilities shall mature immediately, at the option of Agent for the benefit
of the Lenders and without notice or demand, upon the occurrence of any one
or
more of the following: (a) any Event of Default under the Credit Agreement
or
the Notes; or (b) any default by any of the Guarantors hereunder; or (c) any
warranty, representation or statement made or furnished to the Lenders or Agent
by or on behalf of any of the Guarantors proves to have been false in any
material respect when made or furnished; or (d) the transfer by any of the
Guarantors of a substantial portion of its property not in the ordinary course
of its business as constituted on the date hereof to any party or entity other
than Borrower, provided that any such transfer to Borrower is not otherwise
prohibited by the provisions of any other document or agreement executed by
and
binding upon such Guarantor.
12. Limitation
on Obligations.
(a) The
provisions of this Guaranty are severable, and in any action or proceeding
involving any state corporate law, or any state, federal or foreign bankruptcy,
insolvency, reorganization or other law affecting the rights of creditors
generally, if the obligations of any Guarantor under this Guaranty would
otherwise be held or determined to be avoidable, invalid or unenforceable on
account of the amount of such Guarantor’s liability under this Guaranty, then,
notwithstanding any other provision of this Guaranty to the contrary, the amount
of such liability shall, without any further action by the Guarantors, Agent
or
any Lender, be automatically limited and reduced to the highest amount that
is
valid and enforceable as determined in such action or proceeding (such highest
amount determined hereunder being the relevant Guarantor’s “Maximum Liability”).
This Section 12(a) with respect to the Maximum Liability of the Guarantors
is
intended solely to preserve the rights of Agent and Lenders hereunder to the
maximum extent not subject to avoidance under applicable law, and neither the
Guarantors nor any other Person shall have any right or claim under this Section
12(a) with respect to the Maximum Liability, except to the extent necessary
so
that the obligations of the Guarantors hereunder shall not be rendered voidable
under applicable law.
(b) Each
of
the Guarantors agrees that the Guaranteed Obligations may at any time and from
time to time exceed the Maximum Liability of each Guarantor, and may exceed
the
aggregate Maximum Liability of all other Guarantors, without impairing this
Guaranty or affecting the rights and remedies of the Agent hereunder. Nothing
in
this Section 12(b) shall be construed to increase any Guarantor’s obligations
hereunder beyond its Maximum Liability.
(c) In
the
event any Guarantor (a “Paying Guarantor”) shall make any payment or payments
under this Guaranty or shall suffer any loss as a result of any realization
upon
any collateral granted by it to secure its obligations under this Guaranty,
each
other Guarantor (each a “Non-Paying Guarantor”) shall contribute to such Paying
Guarantor an amount equal to such Non-Paying Guarantor’s “Pro Rata Share” of
such payment or payments made, or losses suffered, by such Paying Guarantor.
For
the purposes hereof, each Non-Paying Guarantor’s “Pro Rata Share” with respect
to any such payment or loss by a Paying Guarantor shall be determined as of
the
date on which such payment or loss was made by reference to the ratio of (i)
such Non-Paying Guarantor’s Maximum Liability as of such date (without giving
effect to any right to receive, or obligation to make, any contribution
hereunder) or, if such Non-Paying Guarantor’s Maximum Liability has not been
determined, the aggregate amount of all monies received by such Non-Paying
Guarantor from Borrower after the date hereof (whether by loan, capital infusion
or by other means) to (ii) the aggregate Maximum Liability of all Guarantors
hereunder (including such Paying Guarantor) as of such date (without giving
effect to any right to receive, or obligation to make, any contribution
hereunder), or to the extent that a Maximum Liability has not been determined
for any Guarantors, the aggregate amount of all monies received by such
Guarantors from Borrower after the date hereof (whether by loan, capital
infusion or by other means). Nothing in this Section 12(c) shall affect any
Guarantor’s several liability for the entire amount of the Guaranteed
Obligations (up to such Guarantor’s Maximum Liability). Each of the Guarantors
covenants and agrees that its right to receive any contribution under this
Guaranty from a Non-Paying Guarantor shall be subordinate and junior in right
of
payment to all the Guaranteed Obligations. The provisions of this Section 12(c)
are for the benefit of both Agent (and Lenders) and the Guarantors and may
be
enforced by any one, or more, or all of them in accordance with the terms
hereof.
13. Records.
Nothing
herein shall be construed as an obligation on any Lender’s or Agent’s part to
continue to extend credit to Borrower in any manner whatsoever. Each Lender’s
and Agent’s records showing the account(s) between Borrower and the Lenders
and/or Agent shall be admissible in evidence in any action or proceeding
involving this Guaranty Agreement, and such records shall be prima facie proof
of the items therein set forth.
14. Warranties.
As an
inducement for and in consideration of the Guaranteed Obligations, each of
the
Guarantors warrants and represents to the Lenders and Agent for the benefit
of
the Lenders, which warranties and representations shall expressly survive the
execution and delivery hereof, that: (a) the Obligations guaranteed hereby
were,
and are being, incurred for purposes permitted by all applicable laws and by
the
articles, bylaws, code of regulations and other corporate legislation of such
Guarantor; (b) this Guaranty Agreement has been duly and validly authorized,
executed and delivered by such Guarantor; and (c) this Guaranty Agreement
constitutes the valid and binding obligation of such Guarantor, enforceable
in
accordance with its terms against such Guarantor.
15. Laws;
Entire Agreement.
Each of
the Guarantors agrees that this Guaranty Agreement shall be governed by, and
construed and interpreted in accordance with the internal laws of the State
of
New York but giving effect to federal laws applicable to national banks.
However, if any provision hereof is or becomes invalid or unenforceable under
any law of mandatory application, it is the intent of each of the Guarantors,
the Lenders and Agent that such provision shall be deemed severed and omitted
herefrom, the remaining portions hereof to remain in full force and effect
as
written. This Guaranty Agreement sets forth the entire agreement of the parties
in regard to the subject matter hereof, and no representations, warranties
or
agreements of any kind have been made by the Lenders or Agent except as
specifically set forth herein and in the Credit Agreement. No amendment hereto
shall be effective against the Lenders and Agent unless in writing, agreed
to by
all Lenders and signed by all Lenders. No express or implied waiver by the
Lenders or Agent of any default or the exercise of any right or remedy hereunder
shall in any way be, or be deemed to be, a waiver of any future or subsequent
default, right or remedy, whether similar in kind or otherwise. Any provision
hereof which becomes unenforceable by reason of the commencement of a case
under
the Bankruptcy Code shall again be valid and enforceable at the termination
of
that case. The rights and remedies provided herein for the Lenders and Agent
for
the benefit of the Lenders are cumulative and may be exercised singly or
concurrently with, and are not exclusive of, any rights or remedies provided
at
law or in equity.
16. Jurisdiction;
Service.
AS A
SPECIFICALLY BARGAINED INDUCEMENT FOR THE LENDERS AND AGENT TO EXTEND CREDIT
GIVING RISE TO THE GUARANTEED OBLIGATIONS, EACH OF THE GUARANTORS HAS AGREED
THAT ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF OR ARISING FROM OR OUT OF
THIS
GUARANTY, ITS VALIDITY OR PERFORMANCE, AT THE SOLE OPTION OF THE LENDERS OR
AGENT, THEIR RESPECTIVE SUCCESSORS OR ASSIGNS, SHALL BE INITIATED AND PROSECUTED
AS TO ALL PARTIES AND THEIR SUCCESSORS AND ASSIGNS AT NEW YORK, NEW YORK. EACH
OF THE LENDERS, AGENT AND EACH OF THE GUARANTORS CONSENTS TO AND SUBMITS TO
THE
EXERCISE OF JURISDICTION OVER ITS PERSON BY ANY COURT SITUATED AT
NEW
YORK,
NEW YORK, AND HAVING JURISDICTION OVER THE SUBJECT MATTER.
17. Notices.
Any
notice required or permitted to be given to or by any of the Guarantors
hereunder shall be deemed to have been given (a) to such Guarantor by the Agent,
when addressed to Borrower (whether or not specifically identifying such
Guarantor), and (b) to any Lender and Agent when given by Borrower (and
specifically identifying such Guarantor), and in each instance delivered in
compliance with the Credit Agreement.
18. Waiver
of Jury Trial.
THE
LENDERS, AGENT AND EACH OF THE GUARANTORS, AFTER CONSULTING OR HAVING HAD THE
OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED
UPON OR ARISING OUT OF THIS GUARANTY AGREEMENT OR ANY RELATED INSTRUMENT OR
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS GUARANTY AGREEMENT
OR
ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS
OF ANY OF THEM. NONE OF THE LENDERS, AGENT OR ANY OF THE GUARANTORS SHALL SEEK
TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY
TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE
OR
HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED
IN ANY RESPECT OR RELINQUISHED BY ANY OF THE LENDERS, AGENT OR ANY OF THE
GUARANTORS EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM.
19. Effectiveness.
This
Guaranty is intended to be made and to be effective at and only when delivered
and accepted by Agent at the place designated by Agent and shall become
effective only upon such delivery and upon acceptance by the Agent at such
place. Each of the Guarantors hereby waives notice of such
acceptance.
20. Counterparts.
This
Guaranty may be executed by one or more of the parties on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
21. Supplemental
Guaranties.
Pursuant to Subsections 6.14 and 6.15 of the Credit Agreement, additional
Subsidiaries or M/I Ancillary Businesses shall become obligated as Guarantors
hereunder (each as fully as though an original signatory hereto) by executing
and delivering to the Agent a supplemental guaranty in the form of Exhibit
A
attached hereto (with blanks appropriately filled in) (each, a “Supplemental
Guaranty”), together with such additional supporting documentation required
pursuant to the Credit Agreement.
IN
WITNESS WHEREOF, each of the Guarantors has caused these presents to be executed
by its duly authorized representative as of the day and year first above
written.
GUARANTORS:
M/I
FINANCIAL CORP., an Ohio corporation
By:
Name: Xxxxxxx
X. Creek
Title: Chief
Financial
Officer
and Treasurer
NORTHEAST
OFFICE VENTURE,
LIMITED
LIABILITY COMPANY, a
Delaware
limited liability company, by M/I
Homes,
Inc., its sole member
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
M/I
HOMES
SERVICE CORP., an Ohio corporation
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President and Chief Financial
Officer
MHO,
LLC,
a Florida limited liability company
By:
Name: J.
Xxxxxx
Xxxxx
Title: President
and Assistant Secretary
MHO
HOLDINGS, LLC, a Florida limited liability
company
By:
Name: J.
Xxxxxx
Xxxxx
Title: Senior
Vice President, General Counsel and Secretary
M/I
PROPERTIES LLC, an Ohio limited liability company, by M/I Homes, Inc., its
sole
member
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
M/I
HOMES
OF FLORIDA, LLC, a Florida limited liability company, by M/I Homes, Inc., its
sole member
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
M/I
HOMES
OF ORLANDO, LLC, a Florida limited liability company
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
M/I
HOMES
OF TAMPA, LLC, a Florida limited liability company
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
M/I
HOMES
OF WEST PALM BEACH, LLC, a Florida limited liability company
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
K-TAMPA,
LLC, a Florida limited liability company, by M/I Homes of Tampa, LLC, its
manager
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
M/I
HOMES
OF DC, LLC, a Delaware limited liability company
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
M/I
HOMES
OF CHARLOTTE, LLC, a Delaware limited liability company
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
M/I
HOMES
OF RALEIGH, LLC, a Delaware limited liability company
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
THE
FIELDS AT PERRY HALL, L.L.C., a Maryland limited liability
company
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President and Chief Financial
Officer
XXXXXX
FARM, L.L.C., a Maryland limited liability company
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President and Chief Financial
Officer
M/I
HOMES
OF CENTRAL OHIO, LLC, an Ohio limited liability company
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
M/I
HOMES
OF CINCINNATI, LLC, an Ohio limited liability company
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
M/I
HOMES
OF INDIANA, L.P., an Indiana limited partnership, by M/I Homes First Indiana
LLC, its sole general partner
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial Officer
and Assistant Secretary
M/I
HOMES
FIRST INDIANA LLC, an Indiana limited liability company
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial Officer
and Assistant Secretary
M/I
HOMES
SECOND INDIANA LLC,
an
Indiana limited liability company, by M/I Homes, Inc., its sole
member
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
ETOWAH,
LLC, a Florida limited liability company
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
M/I
HOMES
OF LAKE COUNTY, LLC, a Florida limited liability company
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
TRANSOHIO
RESIDENTIAL TITLE AGENCY, LTD., an Ohio limited liability company, by M/I Homes,
Inc., its sole member
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
M/I-MAJESTIC
OAKS GP, LLC, a Florida limited liability company
By:
Name: Xxxxxxx
X. Creek
Title: Senior
Vice President, Chief Financial
Officer
and Assistant Secretary
EXHIBIT
A TO GUARANTY
SUPPLEMENTAL
GUARANTY
___________,
200_
JPMorgan
Chase Bank, N.A., as Agent
for
the
Lenders under the Credit Agreement
Ladies
and Gentlemen:
Reference
is hereby made to (i) that certain Second Amended and Restated Credit Agreement,
dated as of October 6, 2006, among M/I Homes, Inc., the Lenders from time to
time party thereto, and JPMorgan Chase Bank, N.A., as agent (“Agent”) for the
Lenders (as amended, restated, supplemented or otherwise modified from time
to
time, the “Credit Agreement”) and (ii) that certain Guaranty Agreement, dated as
of October 6, 2006 executed and delivered by the Guarantors parties thereto
in
favor of Agent, for the benefit of the Lenders (as amended, restated,
supplemented or otherwise modified from time to time, the “Guaranty”). Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the respective meanings provided therein.
In
accordance with subsection [6.14/6.15] of the Credit Agreement and Section
21 of
the Guaranty, the undersigned, __________________, a corporation [limited
partnership/limited liability company] organized under the laws of
_________________, hereby agrees to be a “Guarantor” for all purposes of the
Credit Agreement and the Guaranty, respectively, effective from the date
hereof.
Without
limiting the generality of the foregoing, the undersigned hereby agrees to
perform all the obligations of a Guarantor under, and to be bound in all
respects by the terms of, the Guaranty, to the same extent and with the same
force and effect as if the undersigned were a direct signatory
thereto.
This
Supplemental Guaranty shall be governed by, in construed and interpreted in
accordance with the internal laws of the State of New York but giving effect
to
federal laws applicable to national banks.
IN
WITNESS WHEREOF, this Supplemental Guaranty has been duly executed by the
undersigned as of the date set forth above.
[GUARANTOR]
By: __________________________________
Name:
Title:
EXHIBIT
C
NOTE
|
$__________________
|
_______________,
2006
|
FOR
VALUE
RECEIVED, the undersigned (“Borrower”) promises to pay to the order of
_____________ (“Lender”), at the office of JPMorgan Chase Bank, N.A., as Agent
(“Agent”) for Lender, at Agent’s office in New York, New York (or such other
office of Agent as it may, from time to time in writing, designate), or at
such
other place as the holder hereof may, from time to time, in writing designate,
the principal sum of ____________ Dollars ($__________), or so much thereof
as
may be disbursed to, or for the benefit of, the undersigned and remain unpaid,
together with interest and payable at such interest rates and for such periods
and in such manner, time(s) and place(s) as are specified in the Credit
Agreement hereinafter defined.
This
note
(“Note”) is the Note to Lender identified in the Second Amended and Restated
Credit Agreement dated as of October 6, 2006 (such agreement, together with
any
amendments, supplements or other modifications thereto from time to time,
collectively, the “Credit Agreement”), between Borrower, Lender, the other
Lenders party thereto, and Agent, as agent for the Lenders, as the same may
hereafter be amended, modified, or supplemented from time to time, and said
Credit Agreement is hereby incorporated into this Note and made a part hereof.
Capitalized terms used but not defined herein shall have the meanings set forth
in the Credit Agreement.
Interest
and principal shall be calculated and be payable as set forth in the Credit
Agreement, and:
Lender’s
records of the principal, accrued interest and other charges due hereunder,
as
well as applicable interest rates and periods are, absent manifest error,
conclusive as to and binding upon all Persons.
The
entire unpaid principal balance evidenced by this Note plus any accrued but
unpaid interest thereon and any other indebtedness with respect to Loans owing
by Borrower to Lender under the Credit Agreement shall be paid in full on or
before the Maturity Date.
The
indebtedness evidenced hereby may be prepaid in whole or in part without penalty
subject to the terms of the Credit Agreement. All payments (including
prepayments) received by Agent for the account of Lender (a) shall be applied
to
the payment of all costs and expenses incurred by Lender in accordance with
the
Credit Agreement, (b) shall, with respect to scheduled payments, be applied,
first, to accrued interest, and second, to principal; (c) shall, with respect
to
prepayment, be applied to principal; (d) shall be in lawful money of the United
States; and (e) shall be credited as of the time received by Agent for the
account of Lender in cash or equivalent or when finally collected. Pursuant
to
the terms of the Credit Agreement, repayments
of
principal shall be eligible for reborrowing by Borrower. Lender shall not be
obligated to extend any credit after the expiration of the term of this Note
or
the occurrence of a Default or an Event of Default. Any part of the indebtedness
evidenced by this Note outstanding on the Maturity Date shall be repaid on
the
Maturity Date.
Upon
occurrence of an Event of Default, the whole or any part of the unpaid
indebtedness evidenced hereby shall, at once or at any time thereafter, at
the
option of the holder or holders hereof, become due and payable without notice
or
demand therefor, the same being expressly waived. A failure of the holder
thereof to insist upon strict compliance with the terms hereof or to assert
any
right hereunder shall not be a waiver of any default and shall not be deemed
to
constitute a modification of the terms hereof or to establish any claim or
defense.
No
delay
or omission on the part of the holder in exercising any right hereunder shall
operate as a waiver of such right or of any other right under this Note. A
waiver on any one occasion shall not be construed as a bar to or waiver of
any
such right and/or remedy on any future occasion.
All
persons now or hereafter liable, primarily or secondarily, for the payment
of
the indebtedness evidenced hereby or any part thereof, do hereby expressly
waive
presentment for payment, notice of dishonor, protest and notice of protest,
and
agree that the time for payment or payments of any part of the indebtedness
evidenced hereby may be extended without releasing or otherwise affecting their
liability hereon.
Borrower
agrees that this Note shall be governed by, and construed and interpreted in
accordance with the internal laws of the State of New York but giving effect
to
federal laws applicable to national banks. However, if any provision hereof
is
or becomes invalid or unenforceable under any law of mandatory application,
it
is the intent of Borrower, Lender and all parties primarily or secondarily
liable hereunder, that such provision will be deemed severed and omitted
herefrom, the remaining portions hereof to remain in full force and effect
as
written.
To
the
extent that the terms and provisions of this Note are inconsistent with the
terms and provisions of the Credit Agreement, the terms and provisions of this
Note shall control.
As
a
specifically bargained inducement for Lender to extend credit giving rise to
the
indebtedness evidenced hereby, the undersigned and Lender agree that: ANY
ACTION, SUIT OR PROCEEDING IN RESPECT OF OR ARISING FROM OR OUT OF THIS NOTE,
ITS MAKING, VALIDITY OR PERFORMANCE, AT THE SOLE OPTION OF LENDER OR AGENT
FOR
THE BENEFIT OF LENDER OR LEGAL HOLDER HEREOF, SHALL BE PROSECUTED AS TO ALL
PARTIES AND THEIR SUCCESSORS AND ASSIGNS AT NEW YORK, NEW YORK. THE BORROWER,
LENDER AND AGENT EACH CONSENTS TO AND SUBMITS TO THE EXERCISE OF JURISDICTION
OVER ITS PERSON BY ANY COURT SITUATED AT NEW YORK, NEW YORK, AND HAVING
JURISDICTION OVER THE SUBJECT MATTER.
BORROWER,
AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL
BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS NOTE, THE CREDIT
AGREEMENT OR ANY RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED BY THIS NOTE OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF LENDER. BORROWER SHALL NOT SEEK TO CONSOLIDATE,
BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN
WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY
RESPECT OR RELINQUISHED BY LENDER EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY
IT
AND THE HOLDER OF THE NOTE.
IN
WITNESS WHEREOF, the undersigned has executed and delivered this Note as of
the
day and year first above written.
M/I
HOMES, INC.
By: ___________________________________
Name:
Xxxxxxx X. Creek
Title:
Senior Vice President, Chief Financial
Officer
and Assistant Secretary
EXHIBIT
D
COMMITMENT
AND ACCEPTANCE
This
Commitment and Acceptance (this “Commitment and Acceptance”) dated as of
____________
, 200_,
is entered into among the parties listed on the signature pages hereof.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to them in the Credit Agreement (as defined
below).
PRELIMINARY
STATEMENTS
Reference
is made to that certain Second Amended and Restated Credit Agreement dated
October 6, 2006 by and among M/I Homes, Inc., JPMorgan Chase Bank, N.A., as
Agent, and the Lenders party thereto (as amended, modified, supplemented or
restated from time to time, the “Credit Agreement”).
Pursuant
to subsection 2.6(b) of the Credit Agreement, Borrower has requested an increase
in the Aggregate Commitment from $_______________ to $__________________. Such
increase in the Aggregate Commitment is to become effective on _______________
__, ____ (the “Increase Date”).*
In
connection with such requested increase in the Aggregate Commitment, Borrower,
Agent and _________________ (“Accepting Lender”) hereby agree as
follows:
1. ACCEPTING
LENDER’S COMMITMENT.
Effective as of the Increase Date, [Accepting Lender shall become a party to
the
Credit Agreement as a Lender, shall have (subject to the provisions of
subsection 2.6(b) of the Credit Agreement) all of the rights and obligations
of
a Lender thereunder, shall agree to be bound by the terms and provisions thereof
and shall thereupon have a Commitment under and for purposes of the Credit
Agreement in the] [the Commitment of Accepting Lender under the Credit Agreement
shall be increased from $___________________ to the] amount set forth opposite
Accepting Lender’s name on the signature pages hereof.
2. REPRESENTATIONS
AND AGREEMENTS OF ACCEPTING LENDER.
[Accepting Lender (a)
represents
and warrants that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Commitment and Acceptance and to
consummate the transactions contemplated hereby] and to become a Lender under
the Credit Agreement, (ii) it satisfies the requirements, if any, specified
in
the Credit Agreement that are required to be satisfied by it in order to become
a Lender, (iii) from and after the Increase Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent
of
its Commitment, shall have the obligations of a Lender thereunder, (iv) it
has
received a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to subsection 6.1 thereof and such
other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Commitment
and
Acceptance on the basis of which it has made such analysis and decision
independently and without reliance on the Agent or any other Lender, and (v)
if
it is a Non-U.S. Lender, attached to this Commitment and Acceptance is any
documentation required to be delivered by it pursuant to the terms of the Credit
Agreement, duly completed and executed by the Accepting Lender; and (b) agrees
that (i) it will, independently and without reliance on the Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents
are
required to be performed by it as a Lender.*
*If
the
Accepting Lender is already a party to the Credit Agreement prior to the
Increase Date, only the bracketed provision needs to be included.
3. REPRESENTATIONS
OF BORROWER.
Borrower hereby represents and warrants that, as of the date hereof and as
of
the Increase Date, (a) no event or condition shall have occurred and then be
continuing which constitutes a Default or Event of Default and (b) the
representations and warranties contained in Section 4 of the Credit Agreement
are true and correct in all material respects (except to the extent any such
representation or warranty is stated to relate solely to an earlier date).
4. AGENT’S
FEE.
On or
before the Increase Date, Borrower shall pay to Agent an administrative fee
in
the amount of $3,500.
5. GOVERNING
LAW.
This
Commitment and Acceptance shall be governed by the internal laws of the State
of
New York but giving effect to federal laws applicable to national
banks.
IN
WITNESS WHEREOF, the parties hereto have executed this Commitment and Acceptance
by their duly authorized officers as of the date first above
written.
M/I
HOMES, INC.
By:
Name:
Title:
JPMORGAN
CHASE BANK, N.A., as Agent
By:
Name:
Title:
$____________________ [NAME
OF
ACCEPTING LENDER]
By:
Name:
Title:
EXHIBIT
E
OPINION
OF COUNSEL
[Letterhead
of M/I Homes, Inc.]
October
6, 2006
To
the
Lenders party to the Credit
Agreement
referred to below and
JPMorgan
Chase Bank, N.A., as
Agent
for
the Lenders
Ladies
and Gentlemen:
I
have
acted as counsel to M/I Homes, Inc. (“Borrower”) and the guarantors listed on
Schedule
I
attached
hereto (each a “Guarantor” and, collectively, the “Guarantors”). The Guarantors
and Borrower are collectively referred to herein as the “Obligors.” I have been
requested by the Obligors to give this opinion in connection with the Second
Amended and Restated Credit Agreement (the “Credit Agreement”) made to be
effective as of October 6, 2006, by and among Borrower, the Lenders party
thereto, and JPMorgan Chase Bank, N.A., as agent for the Lenders (“Agent”).
Pursuant to the Credit Agreement and subject to its terms and conditions, the
Lenders have agreed to make available to Borrower Revolving Credit Loans, and
to
participate in Facility L/Cs issued or to be issued by JPMorgan Chase Bank,
N.A.
and other LC Issuers thereunder, and JPMorgan Chase Bank, N.A. has agreed to
make available to Borrower Swingline Loans in a maximum principal amount not
to
exceed $20,000,000, which Revolving Credit Loans, Facility L/C Obligations
and
Swingline Loans shall be in an aggregate maximum principal amount at any time
outstanding not to exceed $650,000,000, subject to increase of such maximum
principal amount up to $1,000,000,000 in accordance with the provisions of
the
Credit Agreement (the “Transaction”). Terms defined in the Credit Agreement are
used herein as defined therein. The Transaction is evidenced by the following
documents:
1.
the
Credit Agreement;
2.
the
Notes; and
3.
the
Guaranty Agreement.
The
documents listed in subparagraphs (1) through (3) above shall be collectively
referred to herein as the “Transaction Documents.”
In
this
connection, I have examined such records, certificates, corporate or other
proceedings and other documents as I have considered necessary or appropriate
for the purposes of rendering this opinion, including an executed counterpart
of
each of the Transaction Documents and the certificates of good standing for
each
of the Obligors as such certificates are
more
particularly described on Schedule
II
attached
hereto (each a “Good Standing Certificate” and collectively, the “Good Standing
Certificates”).
Please
be
advised that I have not assumed any responsibility for making any independent
investigation or verification of any factual matters stated in or represented
by
any of the foregoing documents or any other factual matters.
Please
be
advised that, when used in this letter, the phrases “knowledge” and “to the best
of my knowledge” and phrases having equivalent wording relate only to my
conscious awareness of information. Whenever I assert knowledge in stating
facts
or expressing an opinion which involves a question of fact, my knowledge is
based solely on the inquiry and review described herein.
I
have
assumed (i) the genuineness of all signatures on documents reviewed by me (other
than those of the Obligors); (ii) the authenticity of all documents submitted
to
me as originals and the conformity to authentic originals of all documents
submitted to me as certified, conformed or photocopies, and that none of such
documents has been amended, altered, revoked or otherwise modified; and (iii)
that the laws of any jurisdiction other than the State of Ohio (except for
the
federal laws of the United States of America) which may govern any one or more
of the Transaction Documents are not inconsistent with the laws of Ohio in
any
matter material to this opinion.
Based
on
such review and upon such further investigation as I have deemed necessary
and
such other considerations of law and fact as I believe to be relevant, I am
of
the opinion, as of the date hereof or as of the date of any certificate stated
to have been relied on by me, that:
1. Each
of
the Obligors is duly organized or formed, and, as appropriate, validly existing
and, based solely on the Good Standing Certificates and the certificates
delivered by or on behalf of each of the Obligors, other than the Borrower,
with
respect to the continuing good standing of such Obligor subsequent to the date
of the Good Standing Certificate listed on Schedule II for such Obligor, in
good
standing in the jurisdiction of its incorporation or formation.
2. Each
of
the Obligors has all necessary corporate, limited liability company, or limited
partnership power and authority to execute, deliver and perform the obligations
to be performed by it under the Transaction Documents to which it is a party,
to
carry on its business as now conducted and as presently proposed to be conducted
and to own, lease and operate its property.
3. The
execution and delivery of, and due performance of its obligations under, the
Transaction Documents to which it is a party have been duly authorized by all
necessary corporate, limited liability company, or limited partnership action
by
each of the Obligors.
4. The
Transaction Documents have been duly and validly executed and delivered by
each
Obligor party thereto.
5. Each
of
the Transaction Documents constitutes the legal, valid and binding obligation
of
each Obligor party thereto in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or transfer or other similar laws relating to or affecting the rights
of creditors generally and except as the enforceability of the Transaction
Documents is subject to the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including without limitation, (a) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (b) concepts
of
materiality, reasonableness, good faith and fair dealing. In addition, I express
no opinion with respect to the enforceability of provisions for the award of
attorneys’ fees to an opposing party. I call your attention to the provisions of
§1301.21 of the Ohio Revised Code, which became effective on May 1, 2000. This
statute provides that a commitment to pay attorneys’ fees in a “contract of
indebtedness” is enforceable under certain circumstances. This statute purports
to change over a century of the Supreme Court of Ohio’s precedent and public
policy of the State of Ohio. To date, this statute has not been interpreted
in a
reported case. However, I feel that it is more likely than not that the statute
will be upheld.
6. The
execution, delivery and compliance by each of the Obligors with the terms of
the
Transaction Documents will not conflict with, or result in a breach of the
provisions of, or constitute a default under, the provisions of their respective
constituent documents or any material agreement to which any of the Obligors
is
a party, and will not contravene any provision of existing law or regulation
applicable to such Obligor.
7. All
licenses, permits, authorizations, consents or approvals or orders of, or
registrations or filings with, any court or governmental or public agency,
authority or body, if any, required of any Obligor or any of its Subsidiaries
in
order to enter into and carry out such Obligor’s obligations under the
Transaction Documents have been obtained by such Obligor as of the date hereof
and remain in full force and effect.
8. None
of
the Obligors is an “investment company” or a company “controlled” by an
“investment company”, as such terms are defined in the Investment Company Act of
1940, as amended.
I
hereby
confirm to you, that, to the best of my knowledge, there are no actions or
proceedings against the Obligors pending or overtly threatened in writing before
any court, governmental agency or arbitrator which may, individually or in
the
aggregate, materially and adversely affect (a) the business, operations,
property or financial or other condition of such Obligor, or (b) the ability
of
such Obligor to perform its obligations under the Transaction Documents to
which
it is a party, or (c) the enforceability of the Transaction Documents.
This
opinion constitutes my professional opinion as to certain legal consequences
of,
and the applicability of certain laws to, the various documents, instruments
and
other matters specifically referred to herein. It is not, however, a guaranty
and should not be construed as such. I am qualified to practice law in the
State
of Ohio and do not purport to express any opinion herein concerning any law
other than the law of the State of Ohio and the federal laws of the United
States of America as of the date of this letter.
This
opinion is limited to, and no opinion is implied or may be inferred beyond,
the
matters expressly stated herein. This letter is intended for the benefit of
the
Lenders (including any entity that becomes a “Lender” after the date hereof),
the Agent and any Participant as defined in subsection 11.4 of the Credit
Agreement. No other person or entity is entitled to rely upon anything contained
herein, and no reproduction or further distribution of, and no reference to
or
reliance upon this opinion may be made, without my prior written consent, to
or
for any person or entity other than the parties to whom it is addressed. This
opinion is rendered as of the date hereof, and I undertake no, and hereby
disclaim any, obligation to advise you of any changes in, or new developments
that might affect, any matters or opinions set forth herein.
Respectfully
submitted,
______________________________________
J.
Xxxxxx
Xxxxx, Senior Vice President and General Counsel of M/I Homes, Inc.
SCHEDULE
I (Guarantors)
|
1.
|
M/I
FINANCIAL CORP., an Ohio
corporation
|
|
2.
|
NORTHEAST
OFFICE VENTURE, LIMITED LIABILITY COMPANY, a Delaware limited liability
company
|
|
3.
|
M/I
HOMES SERVICE CORP., an Ohio
corporation
|
|
4.
|
MHO,
LLC, a Florida limited liability
company
|
|
5.
|
MHO
HOLDINGS, LLC, a Florida limited liability
company
|
|
6.
|
M/I
PROPERTIES LLC, an Ohio limited liability
company
|
|
7.
|
M/I
HOMES OF FLORIDA, LLC, a Florida limited liability
company
|
|
8.
|
M/I
HOMES OF ORLANDO, LLC, a Florida limited liability
company
|
|
9.
|
M/I
HOMES OF TAMPA, LLC, a Florida limited liability
company
|
|
10.
|
M/I
HOMES OF WEST PALM BEACH, LLC, a Florida limited liability
company
|
|
11.
|
K-TAMPA,
LLC, a Florida limited liability
company
|
|
12.
|
M/I
HOMES OF DC, LLC, a Delaware limited liability
company
|
|
13.
|
M/I
HOMES OF CHARLOTTE, LLC, a Delaware limited liability
company
|
|
14.
|
M/I
HOMES OF RALEIGH, LLC, a Delaware limited liability
company
|
|
15.
|
THE
FIELDS AT PERRY HALL, L.L.C., a Maryland limited liability
company
|
|
16.
|
XXXXXX
FARM, L.L.C., a Maryland limited liability
company
|
|
17.
|
M/I
HOMES OF CENTRAL OHIO, LLC, an Ohio limited liability
company
|
|
18.
|
M/I
HOMES OF CINCINNATI, LLC, an Ohio limited liability
company
|
|
19.
|
M/I
HOMES OF INDIANA, L.P., an Indiana limited
partnership
|
|
20.
|
M/I
HOMES FIRST INDIANA LLC, an Indiana limited liability
company
|
|
21.
|
M/I
HOMES SECOND INDIANA LLC, an Indiana limited liability
company
|
|
22.
|
ETOWAH,
LLC, a Florida limited liability
company
|
|
23.
|
M/I
HOMES OF LAKE COUNTY, LLC, a Florida limited liability
company
|
|
24.
|
TRANSOHIO
RESIDENTIAL TITLE AGENCY, LTD., an Ohio limited liability
company
|
|
25.
|
M/I-MAJESTIC
OAKS GP, LLC, a Florida limited liability
company
|
SCHEDULE
II
Good
Standing Certificates
|
Obligor
|
State
of Incorporation or
Organization
|
Certificate
Date
|
|
M/I
HOMES, INC.
|
Ohio
|
|
|
M/I
FINANCIAL CORP.
|
Ohio
|
|
|
NORTHEAST
OFFICE VENTURE, LIMITED LIABILITY COMPANY
|
Delaware
|
|
|
M/I
HOMES SERVICE CORP.
|
Ohio
|
|
|
MHO,
LLC
|
Florida
|
|
|
MHO
HOLDINGS, LLC
|
Florida
|
|
|
M/I
PROPERTIES LLC
|
Ohio
|
|
|
M/I
HOMES OF FLORIDA, LLC
|
Florida
|
|
|
M/I
HOMES OF ORLANDO, LLC
|
Florida
|
|
|
M/I
HOMES OF TAMPA, LLC
|
Florida
|
|
|
M/I
HOMES OF WEST PALM BEACH, LLC
|
Florida
|
|
|
K-TAMPA,
LLC
|
Florida
|
|
|
M/I
HOMES OF DC, LLC
|
Delaware
|
|
|
M/I
HOMES OF CHARLOTTE, LLC
|
Delaware
|
|
|
M/I
HOMES OF RALEIGH, LLC
|
Delaware
|
|
|
THE
FIELDS AT PERRY HALL
|
Maryland
|
|
|
XXXXXX
FARM, L.L.C.
|
Maryland
|
|
|
M/I
HOMES OF CENTRAL OHIO, LLC
|
Ohio
|
|
|
M/I
HOMES OF CINCINNATI, LLC
|
Ohio
|
|
|
M/I
HOMES OF INDIANA, L.P.
|
Indiana
|
|
|
M/I
HOMES FIRST INDIANA LLC
|
Indiana
|
|
|
M/I
HOMES SECOND INDIANA LLC
|
Indiana
|
|
|
ETOWAH,
LLC
|
Florida
|
|
|
M/I
HOMES OF LAKE COUNTY, LLC
|
Florida
|
|
|
TRANSOHIO
RESIDENTIAL TITLE AGENCY, LTD.
|
Ohio
|
|
|
M/I-MAJESTIC
OAKS GP, LLC
|
Florida
|
EXHIBIT
F
[LETTERHEAD
OF M/I HOMES, INC.]
[DATE]
To: Agent
and
each Lender
Ladies
and Gentlemen:
This
letter is being sent to you to comply with subsection 6.2 of the Second Amended
and Restated Credit Agreement effective as of October 6, 2006 (the “Credit
Agreement”) and is being delivered to you for the period of [insert yearly or
quarterly period as appropriate] for which period the undersigned has heretofore
delivered, or is herewith delivering, the financial statements provided for
in
subsection 6.1 of the Credit Agreement (the “Financial Statements”). [The
undersigned hereby certifies that such Financial Statements are true and
accurate in all material respects, subject to normal year-end audit adjustments
(Note: only required with delivery of unaudited Financial Statements)].
Capitalized terms used but not defined herein have the meanings given to such
terms in the Credit Agreement.
The
undersigned certifies that, after due examination by the undersigned and to
the
best of the knowledge of the undersigned, M/I Homes, Inc. and each of its
Subsidiaries during the period stated above has observed or performed in all
material respects all of its covenants and other agreements, and satisfied
every
condition, contained in the Credit Agreement, the Notes and the Guaranty
Agreement to be observed, performed or satisfied by it, and that the undersigned
has no knowledge of any Default or Event of Default except [list any Defaults
or
Events of Default; if none, end sentence before “except”].
Additionally,
I have enclosed a statement showing in detail the calculation of ratios and
other covenants, in accordance with corresponding subsections of the Credit
Agreement, as required by the Credit Agreement.
Yours
very truly,
By: ____________________________________
Printed
Name: ______________________________
Title: ____________________________________
Enclosure
CONFIDENTIAL
STATEMENT
OF CALCULATION OF CERTAIN COVENANTS
[Date]
|
Subsection
No.
|
Covenant
|
||
|
1. 6.11
|
Maintain
Consolidated Tangible Net Worth of: (i) $480,000,00 plus (ii) fifty
percent (50%) of the Consolidated Earnings for each quarter after
June 30,
2006 (excluding any quarter in which Consolidated Earnings are less
than
zero (0)) plus (iii) fifty percent (50%) of the net proceeds or other
consideration received by Borrower for any capital stock issued or
sold
after June 30, 2006
|
||
|
(i)
above:
|
$480,000,000
|
||
|
Plus
(ii) above:
|
$__________
|
||
|
Plus
(iii) above:
|
$__________
|
||
|
Minimum
Required
|
|||
|
Consolidated
Tangible
Net
Worth:
|
$__________
|
||
|
Consolidated
Tangible Net Worth =
|
$__________
|
||
|
2. 6.12
|
Maintain
a ratio of (1) Consolidated Indebtedness to (2) Consolidated Tangible
Net
Worth not in excess of 2.00 to 1.00.
|
||
|
(1)
Consolidated Indebtedness:
|
$__________
|
||
|
(2)
Consolidated Tangible Net Worth:
|
$__________
|
||
|
Ratio
of (1) to (2) = ________ to 1.00
|
|||
|
3. 6.13
|
Maintain
an Interest Coverage Ratio of not less than 2.00 to
1.00
|
||
|
EBITDA:
|
$__________
|
||
|
Consolidated
Interest Incurred:
|
$__________
|
||
|
Interest
Coverage Ratio = _______ to 1.00
|
|||
|
4. 7.1
|
Secured
Indebtedness not to exceed $50,000,000
|
||
|
Secured
Indebtedness =
|
$_________
|
||
|
5. 7.5
|
Adjusted
Land Value not to exceed 125% of the sum of (a) Consolidated Tangible
Net
Worth plus (b) 50% of Subordinated Indebtedness
|
||
|
Adjusted
Land Value
|
|||
|
(i)
book value of all Land:
less
(ii) the sum of
|
$_________
|
||
|
(a)
book value of Lots under Contract:
and
(b) lesser of (i) the product of (x) number
of
Housing Units contracted for during the last
six
months:
|
$_________
$_________
|
||
|
and
(y) average book value of all Finished Lots and Lots under
Contract:
|
$_________
|
||
|
(ii)
25% of Consolidated Tangible Net Worth:
|
$_________
|
||
|
Adjusted
Land Value
=
|
$_________
|
||
|
(a)
Consolidated Tangible Net Worth:
|
$_________
|
||
|
Plus
(b) 50% of Subordinated Indebtedness:
|
$_________
|
||
|
Total
[(a) + (b)] =
|
$_________
|
||
|
X
1.25 =
|
$_________
|
||
|
6. 7.6(b)
|
Limit
on extension of credit in connection with the sale of land of 2.5%
of
Consolidated Tangible Net Worth
|
$_________
|
|
|
2.5%
of
Consolidated Tangible Net Worth:
|
$_________
|
||
|
Aggregate
amount of extensions of credit in connection with the sale of
land:
|
$_________
|
||
|
Maximum
maturity of any such extensions of credit not to exceed five years:
___________________
|
|||
|
7. 7.6(e)
|
Limit
on Investments in Joint Ventures of fifteen percent (15%) of Consolidated
Tangible Net Worth, provided that Borrower has no less than a 20%
interest
in each such joint venture and that management and control decisions
for
each such joint venture require Borrower’s consent and
approval.
|
||
|
15%
of Consolidated Tangible Net Worth:
|
$_________
|
||
|
Investments
in Joint Ventures:
|
$_________
|
||
|
Lowest
percentage interest of Borrower in a joint venture:
________________________%
|
|||
|
8. 7.13
|
The
number of Speculative Housing Units, as at the end of any fiscal
quarter,
not to exceed the greater of (a) the number of Housing Unit Closings
occurring during the period of twelve (12) months ending on the last
day
of such fiscal quarter, multiplied by twenty-five percent (25%) or
(b) the
number of Housing Unit closings occurring during the period of six
(6)
months ending on the last day of such fiscal quarter, multiplied
by fifty
percent (50%).
|
||
|
Speculative
Housing Units:
|
|||
|
(a)
Housing Unit Closings in last 12
months:
_________ x 25% =
|
|||
|
(b)
Housing Unit Closings in last 6 months: _________ x 50% =
|
|||
EXHIBIT
G
CERTIFICATE
CONCERNING PROJECTIONS
[Date]
TO: Agent
and
each Lender
The
undersigned certifies to Agent and each Lender, the following:
The
attached financial projections of M/I Homes, Inc. (the “Company”) present, to
the best knowledge and belief of the undersigned, the Company’s expected results
for the projected periods. The projections reflect the Company’s management’s
judgment as of the date of the projections of the expected conditions and
expected course of action. The projections state all of the principal
assumptions on which the projections are predicated, and the projections, in
fact, have been made on the basis of the stated principal
assumptions.
The
undersigned makes no representation that the Company’s actual results will
conform to the projections.
This
certificate is provided pursuant to subsection 6.2(b) of the Second Amended
and
Restated Credit Agreement effective as of October 6, 2006 among the Company
as
borrower and the Lenders and Agent defined therein.
______________________________________
[Chief
Financial Officer or
Controller]
of M/I Homes, Inc.
Date:_____________________________________
Attachment
(Projections)
EXHIBIT
H
ASSIGNMENT
AND ASSUMPTION AGREEMENT
This
Assignment and Assumption (the “Assignment
and Assumption”)
is
dated as of the Effective Date set forth below and is entered into by and
between [Insert
name of Assignor]
(the
“Assignor”)
and
[Insert
name of Assignee]
(the
“Assignee”).
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Credit Agreement identified below (as amended, the “Credit
Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed
to
and incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For
an
agreed consideration, the Assignor hereby irrevocably sells and assigns to
the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the Agent as
contemplated below (i) all of the Assignor’s rights and obligations in its
capacity as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount
and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor (including any letters of credit, guarantees, and
swingline loans included therein) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any
other
right of the Assignor (in its capacity as a Lender) against any Person, whether
known or unknown, arising under or in connection with the Credit Agreement,
any
other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and
obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the “Assigned
Interest”).
Such
sale and assignment is without recourse to the Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty
by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________
[and
is
an Affiliate of [identify
Lender]1 ]
3. Borrower(s):
______________________________
4. Agent: ______________________,
as the agent under the Credit Agreement
5. Credit
Agreement: [The
[amount]
Credit
Agreement dated as of _______ among [name
of Borrower(s)],
the
Lenders parties thereto, [name
of Agent],
as
Agent, and the other agents parties thereto]
6.
Assigned
Interest:
------------------------
|
Aggregate
Amount of Commitment/Loans for all Lenders
|
Amount
of Commitment/Loans Assigned
|
Percentage
Assigned of Commitment/Loans2
|
|
$
|
$
|
%
|
|
$
|
$
|
%
|
|
$
|
$
|
%
|
1
Select
as applicable.
Effective
Date: _____________ ___, 20___ [TO BE INSERTED BY AGENT AND WHICH SHALL BE
THE
EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The
terms
set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
|
[NAME
OF ASSIGNOR]
|
By:______________________________
Title:
ASSIGNEE
[NAME
OF
ASSIGNEE]
By:______________________________
Title:
2Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all
Lenders thereunder.
[Consented
to and]3
Accepted:
[NAME
OF
AGENT], as Agent
By_________________________________
Title:
[Consented
to:]4
[NAME
OF
RELEVANT PARTY]
By________________________________
Title:
3 To
be added only if the consent of the Agent is required by the terms of the
Credit
Agreement.
4 To
be added only if the consent of the Borrower and/or other parties is required
by
the terms of the Credit Agreement.
ANNEX
1
[__________________]5
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AND ASSUMPTION
1.
Representations
and Warranties.
1.1
Assignor.
The
Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear
of
any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or
any
collateral thereunder, (iii) the financial condition of the Borrower, any of
its
Subsidiaries or Affiliates or any other Person obligated in respect of any
Loan
Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2.
Assignee.
The
Assignee (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment
and
Assumption and to consummate the transactions contemplated hereby and to become
a Lender under the Credit Agreement, (ii) it satisfies the requirements, if
any,
specified in the Credit Agreement that are required to be satisfied by it in
order to acquire the Assigned Interest and become a Lender, (iii) from and
after
the Effective Date, it shall be bound by the provisions of the Credit Agreement
as a Lender thereunder and, to the extent of the Assigned Interest, shall have
the obligations of a Lender thereunder, (iv) it has received a copy of the
Credit Agreement, together with copies of the most recent financial statements
delivered pursuant to subsection 6.1 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on the Agent or any other Lender, and (v)
if
it is a Non-U.S. Lender, attached to the Assignment and Assumption is any
documentation required to be delivered by it pursuant to the terms of the Credit
Agreement, duly completed and executed by the Assignee; and (b) agrees that
(i)
it will, independently and without reliance on the Agent, the Assignor or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or
not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.
2.
Payments.
From
and after the Effective Date, the Agent shall make all payments in respect
of
the Assigned Interest (including payments of principal, interest, fees and
other
amounts) to the Assignor for amounts which have accrued to but excluding the
Effective Date and to the Assignee for amounts which have accrued from and
after
the Effective Date.
5 Describe
Credit Agreement at option of Agent.
3.
General
Provisions.
This
Assignment and Assumption shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment
and
Assumption
by
telecopy shall be effective as delivery of a manually executed counterpart
of
this Assignment
and
Assumption.
This
Assignment and Assumption shall be governed by, and construed in accordance
with, the law of the State of New York.
1
Select
as applicable.
2
Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all
Lenders thereunder.
3
To be
added only if the consent of the Agent is required by the terms of the
Credit
Agreement.
4
To be
added only if the consent of the Borrower and/or other parties is required
by
the terms of the Credit Agreement.
5
Describe
Credit Agreement at option of
Agent.
