exhibit1037.htm


    Exhibit
10.37

    


    


    


    


    


    


    Collateral
Assignment

    


    Split-Dollar
Agreement

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    Dated:
September 24, 1997

    



    
      
         


      

      
         


        
          

        

      

       

    

    Collateral
Assignment

    Split-Dollar
Agreement

    


    


    Table of
Contents

    


    


    
      	
              Background
      Information

            	 
      	
              Page
      1

            
	 
      	 
      	 
      
	
              1.

            	
              Purchase
      of the Policy, Conformity to this Agreement

            	
              Page
      1

            
	 
      	 
      	 
      
	
              2.

            	
              Ownership
      and Possession of the Policy

            	
              Page
      2

            
	 
      	 
      	 
      
	
              3.

            	
              Payment
      of Premiums

            	
              Page
      2

            
	 
      	 
      	 
      
	
              4.

            	
              Employer’s
      Interest

            	
              Page
      2

            
	 
      	 
      	 
      
	
              5.

            	
              Collateral
      Assignment of the Policy

            	
              Page
      3

            
	 
      	 
      	 
      
	
              6.

            	
              Borrowing
      from the Policy

            	
              Page
      3

            
	 
      	 
      	 
      
	
              7.

            	
              Surrender
      or Cancellation of the Policy

            	
              Page
      3

            
	 
      	 
      	 
      
	
              8.

            	
              Death
      of the Employee

            	
              Page
      4

            
	 
      	 
      	 
      
	
              9.

            	
              Termination
      of Agreement

            	
              Page
      4

            
	 
      	 
      	 
      
	
              10.

            	
              Disposition
      of Policy Upon Termination of Agreement

            	
              Page
      5

            
	 
      	 
      	 
      
	
              11.

            	
              Prohibition
      Against Transfer of Interests

            	
              Page
      5

            
	 
      	 
      	 
      
	
              12.

            	
              Amendment
      and Waiver

            	
              Page
      5

            
	 
      	 
      	 
      
	
              13.

            	
              Successors
      and Assigns

            	
              Page
      6

            
	 
      	 
      	 
      
	
              14.

            	
              Notices

            	
              Page
      6

            
	 
      	 
      	 
      
	
              15.

            	
              Survival

            	
              Page
      6

            
	 
      	 
      	 
      
	
              16.

            	
              No
      Guaranty of Employment

            	
              Page
      6

            
	 
      	 
      	 
      
	
              17.

            	
              Cooperation

            	
              Page
      6

            
	 
      	 
      	 
      
	
              18.

            	
              No
      Strict Construction

            	
              Page
      6

            
	 
      	 
      	 
      
	
              19.

            	
              Severability

            	
              Page
      6

            
	 
      	 
      	 
      
	
              20.

            	
              Third
      Party Beneficiary

            	
              Page
      6

            
	 
      	 
      	 
      
	
              21.

            	
              Exoneration
      of Insurer

            	
              Page
      6

            
	 
      	 
      	 
      
	
              22.

            	
              ERISA
      Compliance

            	
              Page
      7

            
	 
      	 
      	 
      
	
              23.

            	
              Governing
      Law

            	
              Page
      7

            
	 
      	 
      	 
      
	
              24.

            	
              Headings

            	
              Page
      7

            


    


    
      
         


      

      
         


        
          

        

      

       

    

    Collateral
Assignment

    Split-Dollar
Agreement

    


    


    This Agreement is made and entered into
as of the 24th day
of September, 1997, by and among M/I Schottenstein Homes, Inc., an Ohio
corporation (the “Employer”) , Phillip Creek (the “Employee”), and Philip Creek,
or any successor designed in accordance with the terms of this Agreement (the
”Owner”).

    


    


    Background
Information

    


    
      	
              A.  

            	
              The
      Employee is a capable, efficient and valued employee of the
      Employer.

            


    

    


    
      	
              B.  

            	
              The
      Employee wishes to provide life insurance protection for the benefit of
      his family – under the policy of insurance which is described in Exhibit A
      hereto.  Such life insurance policy, together with any
      replacement of it or modification to it, is referred to herein as the
      “Policy.”  The company which issues the Policy is referred to
      herein as the “Insurer.”

            


    

    


    
      	
              C.  

            	
              The
      Employer is willing, on the terms and conditions set forth in this
      Agreement, to pay a portion of the premiums due on the
    Policy.

            


    

    


    
      	
              D.  

            	
              The
      Owner shall be the owner of the Policy and, as such, shall possess all
      incidents of ownership in and to the Policy.  Except during any
      period when the Employee and the Owner may be the same person, the
      Employee shall have no incident of ownership in or to the
      Policy.

            


    

    


    
      	
              E.  

            	
              The
      Employer wishes to have the Policy collaterally assigned by the Owner in
      order to secure the payment of all amounts which will, in the future, be
      due and payable to the Employer under this
  Agreement.

            


    

    


    
      	
              F.  

            	
              This
      Agreement is intended to be a “split-dollar” arrangement, as described in
      Revenue Ruling 64-328 (issued by the Internal Revenue
      Service).

            


    

    


    


    Agreement

    


    Now, Therefore, in consideration of the
mutual promises contained below, the parties agree to the foregoing and as
follows:

    


    1.           Purchase
of the Policy:  Conformity to this Agreement.  The Owner has
purchased, or has arranged to purchase, the Policy from the
Insurer.  The parties (i) have taken, or will take, all necessary
action to cause the Insurer to issue the Policy and (ii) shall 

     

    
      
         

      

      
        1

        
          

        

      

      
         

      

    

    take any
further action which may be necessary to cause this Policy to conform to the
provisions of this Agreement.  The parties agree that the Policy shall
be subject to (i) the terms of this Agreement and (ii) any
collateral assignment filed with the insurer relating to the
Policy.

    


    2. Ownership
and Possession of the Policy.  The Owner (i)
shall be the sole and absolute owner of the Policy and (ii) may, except as
otherwise provided herein, exercise all ownership rights granted under the terms
of the Policy, However, the Employer shall have possession of the
Policy.

    


    3. Payment
of Premiums.  The following
provisions shall govern the payment of premiums with respect to the Policy
–

    


    a. Employer Payment of
Premiums.  On or before the due date of each Policy premium or
within any grace period, the Employer shall (i) pay the full amount of the
premium to the Insurer and (ii) promptly furnish evidence to the Employee and
the Owner of its timely payment of such premium.

    


    b. Owner Reimbursement of Computed
Economic Benefit.  The Owner shall promptly reimburse the
Employer for a portion of each premium paid by the Employer.  The
amount of such reimbursement shall equal the economic benefit to the Owner
attributable to the life insurance protection, on the Employee’s life, that is
provided under the Agreement.  The value of such economic benefit
shall be calculated using the lesser of (i) the rates known as “P.S. 58” rates
or (ii) the Insurer’s published premium rates for an individual 1-year term life
insurance policy available to all standard risks – in either case, based on the
Employee’s age at the due date of the premium payment.

    


    c. Waiver of Premium (or Policy Costs)
Rider.  At the Owner’s option (and if allowed by the Insurer),
the Policy may provide for the waiver of premium (or waiver of specified policy
costs) in the event of the Employee’s disability.  However, unless the
Employer and Owner otherwise agree (in advance and in writing), the Owner shall
reimburse the Employer for any additional costs associated with such
waiver.

    


    4. Employer’s
Interest.  As used in the
Agreement, (i) the “Employer’s Gross Interest” in the Policy shall mean the
aggregate amount of all premiums paid by the Employer with respect to the Policy
minus the
aggregate amount of all reimbursements of such premium payments by the Owner,
and (ii) the “Employer’s Net Interest” in the Policy shall mean shall mean the
Employer’s Gross Interest minus the outstanding
balance (if any) of all Policy loans made to the Employer (including all accrued
and unpaid interest thereon).


    
      
         


      

      
        2 


        
          

        

      

       

    

    5. Collateral
Assignment of the Policy.  To secure the
Employer’s Net Interest in the Policy, the Owner hereby assigns the Policy to
the Employer as collateral. This Agreement, and the collateral assignment
effected hereby, specifically limits the rights of the Employer in the Policy to
the recovery of the Employer’s Gross Interest.  This collateral
assignment of the Policy to the Employer shall not be terminated, altered or
amended by the Owner without the express
written consent of the Employer, which consent may be withheld in the Employer’s
sole and absolute discretion.  The Insurer is authorized to accept
this Agreement as the Owner’s collateral assignment of this Policy to the
Employer.  The Owner and the Employee agree, upon reasonable request
by the Employer, to execute all other documents that may be necessary or
desirable to perfect this collateral assignment of the Policy.

    


    6. Borrowing
from the Policy.  The Employer and
Owner may borrow from the Policy (as provided therein), subject to the following
limitations –

    


    a. Borrowings by the
Employer.  The outstanding amount of any such borrowing by the
Employer (including all accrued and unpaid interest thereon) shall not exceed
the Employer’s Gross Interest in the Policy.  The Owner shall execute
and file any forms required by the Insurer to permit the Employer to borrow from
the Policy in accordance with this provision.

    


    b. Borrowing by the
Owner.  The Owner shall not borrow from the Policy without the
prior written consent of the Employer, which consent may be withheld in the
Employer’s sole absolute discretion.  In addition, the outstanding
amount of any such borrowing by the Owner (including all accrued and unpaid
interest thereon) shall not prevent the Employer from borrowing the maximum
amount permitted pursuant to the preceding provision.

    


    7. Surrender
or Cancellation of the Policy.  If the Policy is
surrendered for canceled for any reason (other than the death of the Employee),
any net proceeds resulting from such surrender or cancellation (after reduction
by all applicable surrender or cancellation charges) shall be distributed as
follows -

    


    a. Employer’s
Interest.  The Employer shall have the unqualified right to
receive a portion of such net proceeds and equal to the Employer’s Net Interest,
provided, however, in no event the entire amount of such net
proceeds.

    


    b. Owner’s
Interest.  The remaining net proceeds (if any) shall be paid to
the Owner.

    



    
      
         


      

      
        3 


        
          

        

      

       

    


    
      	
              8.  

            	
              Death
      of the Employee.  Upon the
      death of Employee –

            


    

    


    a. Proof of Claim.  The
Owner and Employer shall promptly take all action (including, without
limitation, the filing of an appropriate proof of claim) which may be necessary
or desirable in order to obtain the net death benefit provided under the
Policy.

    


    b. Employer’s
Interest.  The Employer shall have the unqualified right to
receive a portion of such net death benefit equal to the Employer’s Net
Interest, provided, however, in no event shall the amount payable to the
Employer exceed the entire amount of such net death benefit.

    


    c. Owner’s
Interest.  The balance (if any) of the net death benefit
provided under the Policy shall be paid to the beneficiary or beneficiaries
designated by the Owner, in the manner and amounts provided in the beneficiary
designation provision of the Policy.

    


    d. Policy Beneficiary
Designation.  The Employer and the Owner agree that the
beneficiary designation provision of the Policy shall conform to the foregoing
provisions of this Agreement.

    


    9. Termination
of Agreement.  This Agreement
shall terminate under the following circumstances –

    


    a. Termination Without
Notice.  This Agreement shall terminate without notice upon the
occurrence of any of the following events.

    


    
      	
              Ø  

            	
              The
      total cessation of the business of the Employer, or

            


    

    


    
      	
              Ø  

            	
              The
      bankruptcy, receivership or dissolution of the Employer, or

            


    

    


    
      	
              Ø  

            	
              The
      written agreement of the Owner and the
Employer.

            


    

    


    b. Optional Termination by the
Owner.  The Owner may terminate this Agreement by giving at
least ten (10) days written notice to the Employer, provided, however, such
notice may not be given while the Employee is employed by the
Employer.  Such termination shall be effective as of the date
specified in the notice but not sooner than ten (10) days after such notice is
received by the Employer.

    


    c. Optional Termination by the
Employer.  In the event that the Employee’s employment by the
Employer is terminated for any reason other than retirement, death or permanent
disability of the Employee, the Employer may terminate this Agreement by giving
at least ten (10) days written notice to the Owner.  Such termination
shall be effective as of the date specified in the notice but not sooner than
ten (10) days after such notice is received by the Owner.

     

    
      
         

      

      
        4

        
          

        

      

       

    

    10. Disposition
of Policy Upon Termination of Agreement.  Upon any
termination of this Agreement –

    


    a. Owner’s Option to Acquire Sole
Ownership.  For sixty (60) days after such termination, the
Owner shall have the option of obtaining the release of the collateral
assignment of the Policy to the Employer.  To obtain such release, the
Owner shall pay to the Employer an amount equal to the Employer’s Net
Interest.  Upon receipt of such amount, the Employer shall release the
collateral assignment of the Policy by the execution and delivery of an
appropriate instrument of release.  The Owner may borrow against the
Policy to finance the payment of the Employer’s Net Interest to the Employer,
and the Employer shall consent to any such borrowing.

    


    b. Transfer of Policy to the
Employer.  If the Owner fails to exercise such option within
such sixty (60) day period, the Owner shall, upon request by the Employer,
promptly execute any documents which are necessary or desirable to transfer
ownership of the Policy to the Employer.  Thereafter, neither the
Owner nor its beneficiaries, successors or assigns shall have any further
interest in or to the Policy (either under the terms thereof or under this
Agreement).

    


    
      	
              11.  

            	
              Prohibition Against
      Transfer of Interest.

            


    

    


    a. Transfers by
Owner.  Except as otherwise provided in this Agreement, the
Owner shall not sell, assign, transfer, borrow against, surrender or cancel the
Policy (or any portion thereof or interest therein) without the express
written consent of the Employer, which consent may be withheld in the Employer’s
sole and absolute discretion.  Notwithstanding the forgoing, the Owner
may irrevocably and gratuitously assign its interest in the Policy (without the
express consent of the Employer but with prompt notice to the Employer and
subject to all rights of the Employer pursuant to this Agreement) to any trust
of which the Owner is the grantor.

    


    b. Transfers by the
Employer.  Except as otherwise provided this Agreement, the
Employer shall not sell, assign, transfer, or borrow against any portion of its
interest in the Policy without the express
written consent of the Owner, which consent may be withheld in the Owner’s sole
and absolute discretion.

    


    12. Amendment
and Waiver.  This Agreement
may not be amended except by a written instrument signed by the Employer and the
Owner, or their respective successors or assigns, and may not be terminated
except as provided herein.  The failure of any party to strictly
enforce any provision of this Agreement shall not affect the right of such party
to thereafter enforce the same, or any other, provision of this Agreement in
accordance with its terms.

    


    
      
         

      

      
        5

        
          

        

      

       

    

    13. Successors
and Assigns.  This Agreement
shall be binding upon and inure to the benefit of (i) the Employer, its
successors and assigns, (ii) the Employee, his heirs, successors and assigns,
and (iii) the Owner, its beneficiaries, successors and assigns.

    


    14. Notices.  Any notice,
consent or demand required or permitted to be given under this Agreement shall
be (i) in writing and (ii) signed by the party giving or making the
same.  If such notice, consent or demand is mailed to a party, it
shall be sent by United States certified mail, postage prepaid, addressed to
such party’s last know address as shown on the records of the
Employer.  The date of such mailing shall be deemed the date of
notice, consent or demand.

    


    15. Survival.  The rights and
obligations of the parties shall survive the termination of this Agreement and
Employee’s death to the extent they any performance is required.

    


    16. No
Guaranty of Employment.  The Employee
shall have no guarantee or right to employment by reason of this
Agreement.

    


    17. Cooperation.  The parties agree
to take such actions as are desirable to allow the rights and duties specified
in this Agreement to be brought into effect.  The parties each agree
to execute and deliver all documents which may be desirable to bring into effect
the intent of this Agreement or to carry out its provisions.

    


    18. No Strict
Construction.  The language used
in this Agreement shall be deemed to be the language chosen by the parties to
express their mutual intent, and no rule of strict construction shall be applied
against any party.

    


    19. Severability.  Whenever
possible, each provision of the Agreement shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision shall be
held to the prohibited by, or invalid under, applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement.

    


    20. Third
Party Beneficiary.  The Employee
shall be considered a third party beneficiary of the rights granted to the Owner
under this Agreement and shall be entitled to enforce those rights directly
against the Employer without joinder of
the Owner.

    


    21. Exoneration
of Insurer.  The Insurer shall
be fully discharged from its obligations under the Policy by payment of all
Policy death benefits to the beneficiary or beneficiaries named in the Policy
subject to the
terms and conditions of the Policy.  In no event shall the Insurer be
considered a party to this Agreement or any amendment hereof.  No
provision of this Agreement, nor of any amendment hereof, shall in any way be
construed as enlarging, changing, varying, or in any other way affecting the
obligations of the Insurer as expressly provided in the Policy except insofar as the
provisions hereof are made a part of the Policy by the collateral assignment
filed with the insurer in connection with this Agreement.

    


    
      
         

      

      
        6

        
          

        

      

       

    

    22. ERISA
Compliance.  The Employer is
hereby designated as the named fiduciary under this Agreement.  The
named fiduciary shall have authority to control and manage the operation and
administration of this Agreement, and it shall be responsible for establishing
and carrying out a funding policy and method consistent with the objectives of
this Agreement.  The Employer shall make all determinations concerning
rights to benefits under this Agreement.  Any decision by the Employer
denying a claim for benefits under the Agreement shall be stated in writing and
delivered or mailed to the claimant.  Such decision shall set forth
the specific reasons for the denial, written to the best of the Employer’s
ability in a manner that may be understood without legal or actuarial
counsel.  In addition, the Employer shall afford a reasonable
opportunity to the claimant for a full and fair review of the decision denying
such claim.

    


    23. Governing
Law.  This Agreement,
and the rights of the parties, shall be governed by, the construed in accordance
with, the laws of Ohio.

    


    24. Headings.  The headings in
this Agreement are for convenience only and shall be ignored in the construction
of this Agreement.

    


    In Witness Whereof, the
parties have executed this Agreement as of the day and year first above
written.

    


    


    
      	
              M/I
      Schottenstein Homes, Inc.

            	 
      	 
      
	
                an
      Ohio Corporation

            	 
      	
              /s/Philip
      Creek

            
	 
      	 
      	 
      	
              Philip
      Creek (the “Employee”)

            
	 
      	 
      	 
      	 
      
	
              By:

            	
              /s/Robert
      H. Schottenstein

            	 
      	 
      
	 
      	 
      	 
      	 
      
	
              Its:

            	
              President

            	 
      	
              /s/Philip
      Creek

            
	 
      	 
      	 
      	
              Philip
      Creek, together with any

            
	 
      	 
      	 
      	
              permitted
      successor (the “Owner")

            
	 
      	 
      	 
      	 
      


    

    



    
      
         


      

      
        7 


        
          

        

      

      
         


      

    


    EXHIBIT
A

    


    


    
      	
              Name

            	 
      	
              Policy #

            
	 
      	 
      	 
      
	
              Philip
      G. Creek

            	 
      	
              2-118-278V