EXHIBIT 10.19
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") made as of
the 15th day of September, 2000, by and among M/I SCHOTTENSTEIN HOMES, INC., an
Ohio corporation ("Borrower"), FLEET NATIONAL BANK (formerly known as
BankBoston, N.A.) ("Fleet"), BANKERS TRUST COMPANY ("BT"), XXX CAPITAL FUNDING
LP ("XXX") and HIGHLAND LEGACY LIMITED ("Highland"; Fleet, BT, XXX and Highland
are hereinafter referred to collectively as the "Lenders") and FLEET NATIONAL
BANK (formerly known as BankBoston, N.A.), as Agent (the "Agent").
W I T N E S S E T H:
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WHEREAS, Borrower, Agent and Fleet entered into that certain Credit
Agreement dated August 29, 1997 (the "Credit Agreement"); and
WHEREAS, Borrower has requested that the Lenders modify the Credit
Agreement in certain respects; and
WHEREAS, the Agent and the Lenders have agreed to such modification to
the Credit Agreement subject to the execution and delivery by Borrower of this
Amendment.
NOW, THEREFORE, for and in consideration of the sum of TEN and NO/100
DOLLARS ($10.00), and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby
covenant and agree as follows:
1. DEFINITIONS. All the terms used herein which are not otherwise
defined herein shall have the meanings set forth in the Credit Agreement.
2. MODIFICATION OF THE CREDIT AGREEMENT. Borrower, the Lenders and
Agent do hereby modify and amend the Credit Agreement as follows:
(a) By deleting the figure "$1,000,000" appearing in the last
line of the definition of "Developed Lots" appearing in ss.1.1 of the Credit
Agreement, appearing on page 4 thereof, and inserting in lieu thereof the figure
"$2,500,000.00";
(b) By deleting in its entirety the definition of "PERMITTED
SECURED INDEBTEDNESS" appearing in ss.1.1 of the Credit Agreement, appearing on
page 12 thereof, and inserting in lieu thereof the following definition:
"PERMITTED INDEBTEDNESS. Indebtedness in respect of
capitalized lease obligations and purchase money
obligations, provided that if such Indebtedness is
secured (it being agreed that such Indebtedness need
not be secured) (a) the Liens securing such
Indebtedness do not at any time encumber any property
other than the property financed by such secured
Indebtedness, and (b) the
Indebtedness secured thereby shall not exceed the
cost or fair market value, whichever is lower, of the
property being acquired on the date of acquisition;
and provided further that the aggregate amount of any
such Indebtedness (whether secured or unsecured) at
any one time outstanding by the Borrower and its
Subsidiaries shall not exceed $15,000,000.00 on a
consolidated basis.";
(c) By deleting the figure "$15,000,000.00" appearing in
clause (d) of the definition of "Senior Debt" in ss.1.1 of the Credit Agreement,
appearing on page 14 thereof, and inserting in lieu thereof the figure
"$25,000,000.00";
(d) By deleting the figure "$500,000.00" appearing in the last
line of ss.6.5(b) of the Credit Agreement, appearing on page 28 thereof, and
inserting in lieu thereof the figure "$2,000,000.00";
(e) By deleting in its entirety ss.7.1(h) of the Credit
Agreement, appearing on page 31 thereof, and inserting in lieu thereof the
following:
"(h) Unsecured Indebtedness between the Borrower and its
wholly-owned Subsidiaries.";
(f) By deleting the figures "$10,000,000.00" appearing in the
twelfth (12th) and thirteen (13th) lines of ss.7.3(a)(i) of the Credit
Agreement, appearing on page 33 thereof, and inserting in lieu thereof the
figure "$15,000,000.00";
(g) By deleting the figure "$15,000,000.00" appearing in
ss.7.3(a)(iii)(A) of the Credit Agreement, appearing on page 34 thereof, and
inserting in lieu thereof the figure "$25,000,000.00";
(h) By deleting the figure "$3,000,000.00" appearing in the
second line of ss.7.3(a)(iv) of the Credit Agreement, appearing on page 34
thereof, and inserting in lieu thereof the figure "$4,000,000.00";
(i) By deleting the figure "$35,000,000.00" appearing in the
last line of ss.7.3(a)(v) of the Credit Agreement, appearing on page 34 thereof,
and inserting in lieu thereof the figure "$70,000,000"; and
(j) All references to "Permitted Secured Indebtedness" in the
Credit Agreement shall be deemed a reference to Permitted Indebtedness as
defined above.
3. REFERENCES TO CREDIT AGREEMENT. All references in the Loan Documents
to the Credit Agreement shall be deemed a reference to the Credit Agreement, as
modified and amended herein.
4. REPRESENTATIONS. Borrower represents and warrants to Agent and the
Lenders as follows:
(a) AUTHORIZATION. The execution, delivery and performance of
this Amendment and the transactions contemplated hereby (i) are within the
authority of Borrower, (ii) have been duly authorized by all necessary
proceedings on the part of Borrower, (iii) do not and will not conflict with or
result in any breach or contravention of any provision of law, statute, rule or
regulation to which Borrower is subject or any judgment, order, writ,
injunction, license or permit applicable to Borrower, (iv) do not and will not
conflict with or constitute a default (whether with the passage of time or the
giving of notice, or both) under any provision of the certificate of formation,
operating agreement, articles of incorporation or other charter documents or
bylaws of, or any mortgage, indenture, agreement, contract or other instrument
binding upon Borrower or any of its properties or to which Borrower is subject,
and (v) do not and will not result in or require the imposition of any lien or
other encumbrance on any of the properties, assets or rights of Borrower.
(b) ENFORCEABILITY. The execution and delivery of this
Amendment is the valid and legally binding obligations of Borrower enforceable
in accordance with the terms and provisions hereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and
except to the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
(c) APPROVALS. The execution, delivery and performance of this
Amendment and the transactions contemplated hereby do not require the approval
or consent of any Person or the authorization, consent, approval of or any
license or permit issued by, or any filing or registration with, or the giving
of any notice to, any court, department, board, commission or other governmental
agency or authority other than those already obtained.
5. NO DEFAULT. By execution hereof, the Borrower certifies that
Borrower is and will be in compliance with all covenants under the Loan
Documents after the execution and delivery of this Amendment, and that no
Default or Event of Default has occurred and is continuing.
6. WAIVER OF CLAIMS. Borrower acknowledges, represents and agrees that
Borrower has no defenses, setoffs, claims, counterclaims or causes of action of
any kind or nature whatsoever with respect to the Loan Documents, the
administration or funding of the Loan or with respect to any acts or omissions
of Agent or any Lender, or any past or present officers, agents or employees of
Agent or any Lender, and each of such Persons does hereby expressly waive,
release and relinquish any and all such defenses, setoffs, claims, counterclaims
and causes of action, if any.
7. RATIFICATION. Except as hereinabove set forth, all terms, covenants
and provisions of the Credit Agreement remain unaltered and in full force and
effect, and the parties hereto do hereby expressly ratify and confirm the Loan
Documents and the Credit Agreement as modified and amended herein. Nothing in
this Amendment shall be deemed or construed to constitute, and there has not
otherwise occurred, a novation, cancellation, satisfaction, release,
extinguishment or substitution of the indebtedness evidenced by the Notes or the
other obligations of Borrower under the Loan Documents.
8. AMENDMENT AS LOAN DOCUMENT. This Amendment shall constitute a Loan
Document.
9. COUNTERPARTS. This Amendment may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
10. MISCELLANEOUS. This Amendment shall be construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts. This Amendment
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective permitted successors, successors-in-title and assigns as
provided in the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have hereto set their hands and
affixed their seals as of the day and year first above written.
BORROWER:
M/I SCHOTTENSTEIN HOMES, INC., an Ohio
corporation
By:
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Name:
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Title:
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Attest:
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Name:
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Title:
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FLEET NATIONAL BANK (formerly known as
BankBoston, N.A.), individually and as
Agent
By:
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Name:
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Title:
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BANKERS TRUST COMPANY
By:
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Name:
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Title:
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XXX CAPITAL FUNDING LP
By: Highland Capital Management, L.P.,
as Collateral Manager
By:
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Name:
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Title:
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HIGHLAND LEGACY LIMITED
By: Highland Capital Management, L.P.,
as Collateral Manager
By:
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Name:
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Title:
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