FOURTH AMENDMENT TO FIRST AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT AND RENEWAL NOTE
Exhibit
10.3
FOURTH AMENDMENT
TO
FIRST AMENDED AND RESTATED
REVOLVING
THIS
FOURTH AMENDMENT TO FIRST AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT AND
RENEWAL NOTE (herein called this "Amendment") dated
effective as of April 18, 2008 by and among M/I FINANCIAL CORP., an Ohio
corporation ("Financial"), M/I
HOMES, INC. (formerly known as M/I Schottenstein Homes, Inc.), an Ohio
corporation ("M/I
Homes") (Financial and M/I Homes are sometimes hereinafter referred to
collectively as the "Borrowers"), and
GUARANTY BANK, a federal savings bank ("Bank"),
W I T N E
S S E T H:
WHEREAS,
Borrowers and Bank have entered into that certain First Amended and Restated
Revolving Credit Agreement dated as of April 27, 2006 (as heretofore
amended by the First Amendment to First Amended and Restated Revolving Credit
Agreement made as of November 13, 2006, that certain Second Amendment to
First Amended and Restated Revolving Credit Agreement, dated as of
April 27, 2007, and that certain Third Amendment to First Amended and
Restated Revolving Credit Agreement, dated as of August 8, 2007 the "Original Credit
Agreement"), for the purposes and consideration therein expressed,
pursuant to which Bank became obligated to make loans to Borrowers as therein
provided; and
WHEREAS,
Borrowers and Bank desire to amend the Original Credit Agreement and the Renewal
Note as provided herein;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein and in the Original Credit Agreement, in
consideration of the loans which may hereafter be made by Bank to Borrowers, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto do hereby agree as
follows:
ARTICLE
I.
Definitions
and References
Section
1.1. Terms Defined in the
Original Credit Agreement. Unless the context otherwise
requires or unless otherwise expressly defined herein, the terms defined in the
Original Credit Agreement shall have the same meanings whenever used in this
Agreement.
Section
1.2. Other Defined
Terms. Unless the context otherwise requires, the following
terms when used in this Amendment shall have the meanings assigned to them in
this Section 1.2.
"Amendment" shall mean
this Fourth Amendment to Credit Agreement and Renewal Note.
"Credit Agreement"
shall mean the Original Credit Agreement, as amended hereby.
ARTICLE
II.
Amendments to Original
Credit Agreement
Section
2.1. Definitions. The
definitions of "Commitment" and
"Commitment
Period" in Section 1.1 of the Original Credit Agreement are each
hereby amended by deleting the reference to "April 25, 2008" therein and
substituting "May 30, 2008" in lieu thereof.
ARTICLE
III.
Amendment to Renewal
Note
Section
3.1. Renewal Note
Amendment. The Renewal Note is hereby amended by deleting the
reference to "April 25, 2008" set forth therein and inserting "May 30,
2008" in lieu thereof.
ARTICLE
IV.
Conditions
of Effectiveness
Section
4.1. Effective
Date. This Amendment shall become effective as of the date
first above written when and only when Bank shall have received, at Bank's
office,
(a) a duly
executed counterpart of this Amendment, and
(b) a duly
executed certificate of the president, chief executive officer or chief
financial officer and of the secretary of each Borrower certifying
(i) that, in the case of M/I Homes, the action of the executive committee
of the board of directors, and, in the case of Financial, the action of sole
shareholder, authorizing the execution, delivery and performance of this
Amendment and identifying the officers authorized to sign this Amendment, copies
of which actions are attached to the respective certificates, are in full force
and effect, (ii) that the specimen signatures of the officers so
authorized, copies of which specimen signatures are attached to the respective
certificates, are true and correct, and (iii) that the articles of
incorporation and code of regulations of such Borrower have not been amended
since the date of the Original Credit Agreement.
ARTICLE
V.
Representations and
Warranties
Section
5.1. Representations and
Warranties of Borrowers. In order to induce Bank to enter into
this Amendment, each Borrower represents and warrants to Bank that:
(a) The
representations and warranties contained in Section 3 of the Original
Credit Agreement are true and correct at and as of the time of the effectiveness
hereof;
(b) Each
Borrower is duly authorized to execute and deliver this Amendment and is and
will continue to be duly authorized to borrow and to perform its obligations
under the Original Credit Agreement and the Renewal Note. Each
Borrower has duly taken all corporate action necessary to authorize the
execution and delivery of this Amendment and to authorize the performance of the
obligations of such Borrower hereunder and thereunder;
(c) The
execution and delivery by each Borrower of this Amendment, the performance by
each Borrower of its obligations hereunder and thereunder and the consummation
of the transactions contemplated hereby do not and will not conflict with any
provision of law, statute, rule or regulation or of the articles of
incorporation and bylaws of such Borrower, or of any material agreement,
judgment, license, order or permit applicable to or binding upon such Borrower,
or result in the creation of any lien, charge or encumbrance upon any assets or
properties of such Borrower. Except for those which have been duly
obtained, no consent, approval, authorization or order of any court or
governmental authority or third party is required in connection with the
execution and delivery by Borrowers of this Amendment or to consummate the
transactions contemplated hereby and thereby; and
(d) When duly
executed and delivered, this Amendment will be a legal and binding instrument
and agreement of Borrowers, enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency and similar laws applying to creditors' rights
generally and by principles of equity applying to creditors' rights
generally.
ARTICLE
VI.
Miscellaneous
Section
6.1. Ratification of
Agreement. The Original Credit Agreement and the Renewal Note
as hereby amended are hereby ratified and confirmed in all
respects. Any reference to the Credit Agreement or the Renewal Note
in any Loan Document shall be deemed to refer to this Amendment
also. The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of Bank under the Original Credit Agreement or any other
Loan Document nor constitute a waiver of any provision of the Original Credit
Agreement or any other Loan Document.
Section
6.2. Survival of
Agreements. All representations, warranties, covenants and
agreements of Borrowers herein shall survive the execution and delivery of this
Amendment and the performance hereof, and shall further survive until all of the
Obligations are paid in full. All statements and agreements contained
in any certificate or instrument delivered by Borrowers hereunder or under the
Original Credit Agreement to Bank shall be deemed to constitute representations
and warranties by, or agreements and covenants of, Borrowers under this
Agreement and under the Original Credit Agreement.
Section
6.3. Loan
Documents. This Amendment is a Loan Document, and all
provisions in the Original Credit Agreement pertaining to Loan Documents apply
hereto and thereto.
Section
6.4. Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Texas and any applicable laws of the
United States of America in all respects, including construction, validity and
performance.
Section
6.5. Counterparts;
Fax. This Amendment may be separately executed in counterparts
and by the different parties hereto in separate counterparts, each of which when
so executed shall be deemed to constitute one and the same
Amendment. This Amendment may be duly executed by facsimile or other
electronic transmission.
THIS
AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT
BLANK
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IN
WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
GUARANTY
BANK M/I
FINANCIAL CORP.
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By:
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By:
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Xxxx
Xxxxx
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J.
Xxxxxx Xxxxx
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Vice
President
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Secretary
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M/I
HOMES, INC.
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By:
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J.
Xxxxxx Xxxxx
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Executive
Vice President, General Counsel and
Secretary
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