Exhibit 10.1



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:

 

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" 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.

 

ARTICLE
II.  

 




 

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.

 

ARTICLE
III.  

 




 

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,

 

(b)  the
Renewal Note,

 

(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.

 

ARTICLE
IV.  

 




 

Representations
and Warranties

 

Section
4.1.  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 the other
Amendment Documents and is and will continue to be duly authorized to borrow and
to perform its obligations under the Original Credit Agreement. Each Borrower
has duly taken all corporate action necessary to authorize the execution and
delivery of this Amendment and the other Amendment Documents 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 and the other
Amendment Documents, 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 and the other
Amendment Documents or to consummate the transactions contemplated hereby and
thereby; and

 

(d)  When duly
executed and delivered, each of this Amendment and the other Amendment Documents
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
V.  

 




 

Miscellaneous

 

Section
5.1.  Ratification
of Agreement. The
Original Credit Agreement as hereby amended is hereby ratified and confirmed in
all respects. Any reference to the Credit Agreement in any Loan Document shall
be deemed to refer to this Amendment also. Any reference to the Note in any
other Loan Document shall be deemed to be a reference to the Renewal Note issued
and delivered pursuant to this Amendment. The execution, delivery and
effectiveness of this Amendment, the other Amendment Documents, 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
5.2.  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
5.3.  Loan
Documents. This
Amendment and the other Amendment Documents are each a Loan Document, and all
provisions in the Original Credit Agreement pertaining to Loan Documents apply
hereto and thereto.

 

Section
5.4.  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
5.5.  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.

 


	 

      THE
      REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK

       







 


































IN
WITNESS WHEREOF, this Amendment is executed as of the date first above
written.

 

GUARANTY
BANK  M/I
FINANCIAL CORP.











	
      By:
	 	 	
      By:
	 
	 	
      Randy
      Reid
	 	
      Phillip
      G. Creek

	 	
      Senior
      Vice President
	 	
      Chief
      Financial Officer










M/I
HOMES, INC.











	
      By:
	 
	 	
      Phillip
      G. Creek

	 	
      Chief
      Financial Officer







































EXHIBIT
A




RENEWAL
PROMISSORY NOTE

 




 































REVOLVING
LOAN PROMISSORY NOTE

 

$40,000,000 Dallas,
TexasApril 28,
2005

 

FOR VALUE
RECEIVED, the undersigned M/I FINANCIAL CORP. and M/I HOMES, INC. ("Borrowers"),
jointly and severally promise to pay to the order of GUARANTY BANK (herein
called "Bank"), the
principal sum of Forty Million Dollars ($40,000,000) or, if less, the aggregate
unpaid principal amount of the Loans made under this Note by Bank to Borrowers
pursuant to the terms of the Loan Agreement (as hereinafter defined), together
with interest on the unpaid principal balance thereof as hereinafter set forth,
both principal and interest payable as herein provided in lawful money of the
United States of America at the offices of the Bank, 8333 Douglas Avenue,
Dallas, Texas or at such other place within Dallas County, Texas, as from time
to time may be designated by the holder of this Note.

 

This Note
(a) is issued and delivered under that certain Revolving Credit Agreement
dated as of May 3, 2001 among Borrowers and Bank (herein, as from time to
time supplemented, amended or restated, called the "Loan
Agreement"), and
is the Note as defined therein, and (b) is subject to the terms and
provisions of the Loan Agreement, which contains provisions for payments and
prepayments hereunder and acceleration of the maturity hereof upon the happening
of certain stated events. Payments on this Note shall be made and applied as
provided herein and in the Loan Agreement. Reference is hereby made to the Loan
Agreement for a description of certain rights, limitations of rights,
obligations and duties of the parties hereto and for the meanings assigned to
terms used and not defined herein.

 

This Note
is given in amendment, renewal and extension (but not in extinguishment or
novation) of that certain promissory note dated April 28, 2004, executed by
Borrowers payable to the order of Bank in the stated principal amount of
$30,000,000.

 

On the
fifteenth (15th) day of each calendar month, beginning on May 15, 2005,
Borrower shall pay to the holder hereof all unpaid interest which has accrued on
the Loans through and including the last day of the immediately preceding
calendar month. The principal amount of this Note, together with all interest
accrued hereon, shall be due and payable in full on the last day of the
Commitment Period which, if it does not occur sooner pursuant to the terms of
the Loan Agreement, or if it is not extended pursuant to subsection 2.7,
Extension of Commitment Period, of the Loan Agreement, shall be April 27,
2006.

 

Prime
Rate Loans (exclusive of any past due principal or interest) from time to time
outstanding shall bear interest on each day outstanding at the Prime Rate in
effect on such day. Eurodollar Rate Loans (exclusive of any past due principal
or interest) from time to time outstanding shall bear interest on each day
outstanding at the Eurodollar Rate determined for such day plus 1.50%.
Notwithstanding the foregoing provisions of this paragraph, if an Event of
Default has occurred and is continuing, all Loans from time to time outstanding
shall bear interest on each day outstanding at a rate per annum which is the sum
of (i) three percent (3.0%), and (ii) the rate which would otherwise
be applicable thereto, from the date of such non-payment until paid in full
(before, as well as after, judgment), and such interest shall be due and payable
immediately as it accrues. Notwithstanding the foregoing provisions of this
paragraph, if at any time the rate at which interest if payable on this Note
exceeds the maximum nonusurious rate of interest Bank is permitted to contract
for, take, charge, or receive with respect to the Loans (the "Maximum
Rate"), this
Note shall bear interest at the Maximum Rate only but shall continue to bear
interest at the Maximum Rate until such time as the total amount of interest
accrued hereon equals (but does not exceed) the total amount of interest which
would have accrued hereon had there been no Maximum Rate applicable
hereto.

 

Notwithstanding
the foregoing paragraph and all other provisions of this Note, in no event shall
the interest payable hereon, whether before or after maturity, exceed the
maximum amount of interest which, under applicable law, may be charged on this
Note, and this Note is expressly made subject to the provisions of the Loan
Agreement which more fully set out the limitations on how interest accrues
hereon. In the event applicable law provides for a ceiling under
Section 303 of the Texas Finance Code, that ceiling shall be the weekly
rate ceiling and shall be used in this Note for calculating the Maximum Rate and
for all other purposes. The term "applicable law" as used in this Note shall
mean the laws of the State of Texas or the laws of the United States, whichever
laws allow the greater interest, as such laws now exist or may be changed or
amended or come into effect in the future.

 

If this
Note is placed in the hands of an attorney for collection after default, or if
all or any part of the indebtedness represented hereby is proved, established or
collected in any court or in any bankruptcy, receivership, debtor relief,
probate or other court proceedings, Borrower and all endorsers, sureties and
guarantors of this Note jointly and severally agree to pay reasonable attorneys'
fees and collection costs to the holder hereof in addition to the principal and
interest payable hereunder.

 

Borrower
and all endorsers, sureties and guarantors of this Note hereby severally waive
demand, presentment, notice of demand and of dishonor and nonpayment of this
Note, protest, notice of protest, notice of intention to accelerate the maturity
of this Note, declaration or notice of acceleration of the maturity of this
Note, diligence in collecting, the bringing of any suite against any party and
any notice of or defense on account of any extensions, renewals, partial
payments or changes in any manner of or in this Note or in any of its terms,
provisions and covenants, or any releases or substitutions of any security, or
any delay, indulgence or other act of any trustee or any holder hereof, whether
before or after maturity.

 

No waiver
by Bank of any of its rights or remedies hereunder or under any other document
evidencing or securing this Note or otherwise shall be considered a waiver of
any other subsequent right or remedy of Bank; no delay or omission in the
exercise or enforcement by Bank of any rights or remedies shall ever be
construed as a waiver of any right or remedy of Bank; and no exercise or
enforcement of any such rights or remedies shall ever be held to exhaust any
right or remedy of Bank.

 






















THIS
NOTE AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF TEXAS, EXCEPT TO THE EXTENT THE SAME ARE GOVERNED BY
APPLICABLE FEDERAL LAW.

 




M/I
FINANCIAL CORP.  M/I
HOMES, INC.

 





	
      By:
	 	 	
      By:
	 
	 	
      Phillip
      G. Creek
	 	 	
      Phillip
      G. Creek

	 	
      Chief
      Financial Officer
	 	 	
      Chief
      Financial Officer