Exhibit
10.1
FIFTH AMENDMENT TO
REVOLVING CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO REVOLVING CREDIT
AGREEMENT (herein called this " Amendment ") made as of
April 28, 2005 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 Revolving Credit Agreement dated as of May 3,
2001 (as heretofore amended, the " Original Credit Agreement
"), for the purposes and consideration therein expressed, pursuant
to which Bank became obligated to make loans to Borrowers as
therein provided; and
WHEREAS, Borrowers and Bank desire to amend the
Original Credit Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises
and the mutual covenants and agreements contained herein and in the
Original Credit Agreement, in consideration of the loans which may
hereafter be made by Bank to Borrowers, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto do hereby agree as
follows:
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 " means this Fifth Amendment
to Credit Agreement.
" Amendment Documents " means,
collectively, this Amendment and the Renewal Note.
" Credit Agreement " means the Original
Credit Agreement as amended hereby.
" Renewal Note " means a promissory note
in the form attached hereto as Exhibit A.
Amendments to Original Credit
Agreement
Section 2.1.
Definitions
.
(a) The definition of " Commitment " in
Section 1.1 of the Original Credit Agreement is hereby amended
in its entirety to read as follows:
" Commitment " shall mean the Bank's
agreement to make the Loans to the Borrower pursuant to
subsection 2.1 hereof in the amount referred to herein, which
amount shall not exceed the lesser of (a) $40,000,000 or
(b) 95% of the aggregate face amount of all Eligible Mortgage
Loans in existence at such time.
(b) The definition of " Commitment Period "
in Section 1.1 of the Original Credit Agreement is hereby
amended in its entirety to read as follows:
" Commitment Period " shall mean the
period from and including April 28, 2005 through and including
April 27, 2006, which is 364 days after April 28, 2005,
or such earlier date as the Commitment shall terminate as provided
herein, subject to any extension of the Commitment Period pursuant
to subsection 2.7 of this Agreement.
Section 2.2. Section 2.1 of the Original Credit
Agreement is hereby amended in its entirety to read as
follows:
2.1 Commitment . Subject to the terms and conditions of the
Agreement, the Bank agrees to make revolving credit loans (the "
Loans ") to the Borrowers from time to time during the
Commitment Period in an aggregate principal amount at anyone time
outstanding not to exceed the lesser of (a) Forty Million and
00/100 Dollars ($40,000,000), or (b) ninety-five percent (95%)
of the aggregate face amount of all Eligible Mortgage Loans in
existence at such time. During the Commitment Period and as along
as no Event of Default exists, the Borrowers may use the Commitment
by borrowing, prepaying the Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions
hereof.
Section 2.3. Section 2.2 of the Original Credit
Agreement is hereby amended in its entirety to read as
follows:
2.2 Note .
The Loans made by the Bank pursuant hereto shall be evidenced by a
promissory note of the Borrowers, substantially in the form of
Exhibit A attached hereto and made a part hereof (the "
Note "), payable to the order of the Bank and evidencing the
obligation of the Borrowers to pay the aggregate unpaid principal
amount of the Loans made by the Bank, with interest thereon during
the Commitment Period and thereafter at a rate per annum equal to
(i) in the case of Prime Rate Loans, the Prime Rate in effect
from time to time and (ii) in the case of Eurodollar Rate
Loans if permitted hereunder at such time, the Eurodollar Rate
determined for each such loan plus 1.50%, subject with respect to
each of the aforesaid interest rates to the default interest rate
provisions of subsection 2.6(c) hereof. Interest shall be
payable in arrears and shall be due on the fifteenth day of each
month for the period ending on the last day of the immediately
preceding calendar month, beginning with May 15, 2005, and
continuing on the 15th day of each month thereafter, and on the
last day of the Commitment Period. If not sooner paid, the entire
principal amount of the Loans outstanding and any remaining unpaid
interest on the Loans shall be due and payable on, the last day of
the Commitment Period. The Bank is hereby authorized to record
electronically or otherwise the date and amount of each Loan
disbursement made by the Bank and the date and amount of each
payment or prepayment of principal thereof, and any such
recordation shall constitute conclusive evidence, absent manifest
error, of the accuracy of the information so recorded; provided,
however, the failure of the Bank to make any such recordation(s)
shall not affect the obligation of the Borrowers to repay
outstanding principal, interest, or any other amount due hereunder
or under the Note in accordance with the terms hereof and thereof.
The Note shall (a) be dated as of April 28, 2005,
(b) be stated to mature on the last day of the Commitment
Period, and (c) bear interest from and including the date
thereof on the unpaid principal amount thereof from time to time
outstanding at a rate per annum equal to (i) in the case of
Prime Rate Loans, the Prime Rate in effect from time to time and
(ii) in the case of Eurodollar Rate Loans, the Eurodollar Rate
determined for each such loan plus 1.50% subject with respect to
each of the aforesaid interest rates to the default interest rate
provisions of subsection 2.6(c) hereof.
Section 2.4.
Exhibits . Exhibit A (Form of Note) attached to this
Agreement is hereby substituted for Exhibit A to the Original
Credit Agreement.
Conditions of
Effectiveness
Section 3.1.
Effective Date
. This Amendment shall become
effective as of the date first above written when and only when
Bank shall have received, at Bank's office,
(a) a duly executed counterpart of this
Amendment,
(c) 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 the Note and identifying the officers authorized
to sign this Amendment and the Note, 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 (except as set forth in the certificate for M/I
Homes).
(d) payment of a fee in the amount of $20,000 in
immediately available funds, and
(e) each other document to be executed and delivered
by Borrowers pursuant hereto or thereto.
Representations and
Warranties
