exhibita.htm


    Exhibit
10.12

    


    FIRST AMENDMENT
TO

    FIRST AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT

     

     

    THIS
FIRST AMENDMENT TO FIRST AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (herein
called this "Amendment") made as
of November 13, 2006 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, 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
First Amendment to Credit Agreement.

     

    "Deferred Payment
Sublimit" shall mean the amount of $5,000,000.

     

    ARTICLE
II.

     

    


     

    Amendments to Original
Credit Agreement

     

    Section
2.1. Definitions.

     

    (a) The
definition of "Eligible Mortgage
Loan" in Section 1.1 of the Original Credit Agreement is hereby
amended by amending clause ii thereof to read as follows:

     

    ii.           Such
Mortgage Loan was made by Financial and purchased by Financial to enable a
natural person or persons either to purchase a home from M/I Homes or another
Person that is substantially completed or to refinance an existing mortgage
loan; provided
that
(A) the aggregate amount of Eligible Mortgage Loans consisting of loans
made by Financial for the purchase of homes from any Person other than M/I Homes
does not exceed the Other Mortgage Sublimit, (B) the aggregate amount of
Eligible Mortgage Loans used to refinance existing mortgage loans does not
exceed the ReFi Sublimit; (C) the aggregate amount of Eligible Mortgage
Loans that are CD Enhanced Loans does not exceed the CD Enhanced Sublimit,
(D) the aggregate amount of Eligible Mortgage Loans that are Second
Mortgage Loans does not exceed the Second Mortgage Sublimit, and (E) the
aggregate amount of Eligible Mortgage Loans that are subject to repurchase
obligations described in clause (G) of the definition of Mortgage Loan
Repurchase Obligations shall not exceed the Deferred Payment
Sublimit;

     

    (b) The
definition of "Mortgage Loan Repurchase
Obligations" in Section 1.1 of the Original Credit Agreement is
hereby amended in its entirety to read as follows:

     

    "Mortgage Loan Repurchase
Obligations" shall mean those obligations (as more particularly described
in this definition) of Financial under a Purchase Commitment to repurchase
(a) Eligible Mortgage Loans, and (b) first mortgage loans that are not
Eligible Mortgage Loans solely because either (i) the mortgagor did not
purchase from M/I Homes the home subject to such mortgage loan, or
(ii) such mortgage loan is more than 60 days old, as determined by the date
of the note which evidences such loan, at the time of the purchase of the
mortgage loan by a secondary market lender pursuant to a Purchase Commitment;
provided, the
obligations to repurchase the mortgage loans described in clauses (a)
through (b) of this definition shall exist only if (A) such mortgage loans
do not meet for any reason, the investor guidelines regarding loan origination,
loan processing or loan closing and regarding underwriting criteria for such
Purchase Commitment, or defects are noted in origination, processing or closing
of Mortgage Loans by investor, (B) Financial or its employees engage in any
fraudulent conduct or misrepresentation, (C) except with respect to
mortgage loans for which Financial has agreed to pay the first six monthly
installments due thereon, the mortgagor fails to make timely payment of any of
the first, second, third or fourth installments due under such mortgage loan,
and such delinquency remains uncured for a period of more than 30 days or
results in a foreclosure action, (D) except with respect to mortgage loans
for which Financial has agreed to pay the first six monthly installments due
thereon, the mortgagor fails to make timely payment of two or more monthly
installments within six months from the date such mortgage loan is purchased by
such secondary market lender, (E) the mortgagor engages in fraudulent
conduct or misrepresentation, (F) with respect to mortgage loans issued
pursuant to the North Carolina Housing Finance Authority bond programs, the
mortgagor fails to make timely payment of the first installment due under such
mortgage loans, or (G) with respect to such mortgage loan for which
Financial has agreed to pay the first six installments due under such mortgage
loan, the mortgagor fails to make timely payment of two or more of the next six
installments due under such mortgage loans.

     

    Section
2.2. Exhibits.  Exhibit C
(Form of Compliance Certificate) attached to this Amendment is hereby
substituted for Exhibit C 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, 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
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 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 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 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

     

    (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
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.  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
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 is 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.

     


    
      
         


      

      
        
          

        

      

       

    


    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
C

    


    FORM OF COMPLIANCE
CERTIFICATE

    [Letterhead
of M/I-Financial Corp.]

     

    


     

    [Date]

     

    Mr.
Dustin Ortmann

    Guaranty
Bank

    8333
Douglas Avenue, 11th Floor

    Dallas,
TX 75225

     

    Dear
Dustin:

     

    This
letter is to comply with Section 5.2(a),
Certificates, Other Information, related to the First Amended and Restated
Revolving Credit Agreement dated April 27, 2006 (as amended, the "Revolving Credit
Agreement") and is for the period ending [Insert Appropriate Period]
except the calculations for EBIT and Interest Expense have been calculated for
the rolling 12 month period indicated on the attached
statement.  Capitalized terms used but not defined have the meanings
given to such terms in the Revolving Credit Agreement.

     

    The
undersigned certifies that, after due examination by the undersigned and to the
best of my knowledge, M/I Financial Corp. during the period stated above has
observed or performed in all material respects all of its covenants and the
agreements, and satisfied every condition, contained in the Revolving Credit
Agreement and Note to be observed, performed or satisfied by it, and that the
undersigned has no knowledge of any Default of Event of Default except [List any
defaults or events of defaults; if none, end sentence before
"except."]

     

    Additionally,
I have enclosed a statement showing in detail the calculation of certain
sections of the Revolving Credit Agreement as required in the Revolving Credit
Agreement.  All figures in this calculation are as of the end of the
accounting period stated in the first paragraph of this letter.  The
undersigned certifies that the enclosed calculation is accurate in all material
respects.

     

    Certified
by:

     

    


     

    Name
Printed, Title

     

    Enclosure:                                Statement
of Calculation of Certain Covenants

     


    
      
        
          C-1

        

         


      

      
        
          

        

      

      
         


      

    


    M/I
FINANCIAL CORP.

     

    STATEMENT OF CALCULATION OF
CERTAIN COVENANTS

     

    [Date]

     

    Capitalized
terms used but not defined in this Compliance Certificate shall have the
meanings specified in the Revolving Credit Agreement.

     

    
      	 
      	
              Subsection No.

            	
              Covenant

            
	
              1.

            	
              5.7,
      page 22

            	
              M/I
      Financial must maintain at all times its Tangible Net Worth equal to at
      least $3,500,000.

            
	 
      	 
      	
              M/I
      Financial's Tangible Net Worth = $_______________

            
	
              2.

            	
              5.8,
      page 22

            	
              M/I
      Financial must maintain at all times a ratio of Liabilities to Tangible
      Net Worth not in excess of 10.0 to 1.0.

            
	 
      	 
      	
              M/I
      Financial's Liabilities = $______________

            
	 
      	 
      	
              M/I
      Financial's Tangible Net Worth (from line 1) =
  $__________

            
	 
      	 
      	
              Ratio
      of Liabilities to Tangible Net Worth = ___:___.

            
	
              3.

            	
              5.9,
      page 22

            	
              M/I
      Financial must maintain a ratio of EBIT to Interest Expense, determined as
      of the end of each monthly accounting period of each fiscal year and as of
      the end of each fiscal year, on a rolling 12 month basis (with the period
      of determination being the 12 month period ending on the date as to which
      such determination is made), of not less than 1.50 to
  1.0.

            
	 
      	 
      	
              EBIT
      for the 12 month period beginning ______________ and ending ____________ =
      $______________.

            
	 
      	 
      	
              Interest
      Expense for the 12 month period beginning _____________ and ending
      _______________ = $__________

            
	 
      	 
      	
              Ratio
      of EBIT to Interest Expense = ___:___.

            
	
              4.

            	
              6.3,
      page 24

            	
              M/I
      Financial may not incur any Contingent Obligations, except as specifically
      stated:

            
	 
      	 
      	
              In
      making first mortgage loans permitted under the Revolving Credit
      Agreement, M/I Financial may, lieu of requiring down payments from
      mortgagors, purchase and pledge to investors purchasing such first
      mortgage loans, certificates of deposit in an aggregate amount not to
      exceed $2,500,000.  Aggregate amount of certificates of deposit
      = $________________.

            
	 
      	 
      	
              Other
      Contingent Obligations = $______________.

            
	
              5.

            	
              6.5,
      page 24

            	
              M/I
      Financial may not make any investments except as specifically
      stated:

            
	 
      	 
      	
              (i)

            	
              Eligible
      Mortgage Loans:

            
	 
      	 
      	 
      	
              (a)

            	
              First
      mortgage loans in the ordinary course of M/I Financial's business to
      natural persons for the purchase of residential real property =
      $_______.

            
	 
      	 
      	 
      	
              (b)

            	
              First
      mortgage loans made by M/I Financial for the purpose of homes from any
      Person other than M/I Homes = $________________.

            
	 
      	 
      	 
      	 
      	
              The
      amount of mortgage loans in (b) cannot exceed $5,000,000 in aggregate at
      any one time outstanding.

            
	 
      	 
      	 
      	
              (c)

            	
              First
      mortgage loans in the ordinary course of M/I Financial's business to
      natural persons to refinance an existing first mortgage loan =
      $___________.

            
	 
      	 
      	 
      	 
      	
              The
      amount of first mortgage loans in (c) cannot exceed $5,000,000 in
      aggregate at any one time outstanding.

            
	 
      	 
      	 
      	
              (d)

            	
              CD
      Enhanced loans in the ordinary course of M/I Financial's business =
      $______________.

            
	 
      	 
      	 
      	 
      	
              The
      amount of CD Enhanced loans in (d) cannot exceed $5,000,000 in aggregate
      at any one time outstanding.

            
	 
      	 
      	 
      	
              (e)

            	
              Second
      mortgage loans in the ordinary course of M/I Financial's business to
      natural persons for the purchase of residential real property =
      $__________.

            
	 
      	 
      	 
      	 
      	
              The
      amount of mortgage loans in (e) cannot exceed $10,000,000 in aggregate at
      any one time outstanding.

            
	 
      	 
      	 
      	 
      	
              Are
      all of the mortgage loans in (e) made in connection with a specific
      financing program to natural persons who have a first mortgage from M/I
      Financial with respect to the same real property?
  _________

            
	 
      	 
      	 
      	
              (f)

            	
              Mortgage
      loans having a Risk Rating of less than A =
  $___________.

            
	 
      	 
      	 
      	 
      	
              The
      amount of mortgage loans having a Risk Rating of less than A cannot exceed
      $5,000,000 in the aggregate at any one time
outstanding.

            
	 
      	 
      	 
      	
              (g)

            	
              Mortgage
      loans subject to a deferred payment repurchase obligation described in
      clause (G) of the definition of Mortgage Loan Repurchase Obligations
      = $______________.

            
	 
      	 
      	 
      	 
      	
              The
      amount of mortgage loans in (g) cannot exceed $5,000,000 in aggregate at
      any one time outstanding.

            
	 
      	 
      	
              (ii)

            	
              Cash
      Equivalents = $_____________.

            
	 
      	 
      	
              (iii)

            	
              Investments
      in ordinary course of M/I Financial's business in standard instruments
      hedging against interest rate risk incurred in the origination and sale of
      mortgage loans = $___________

            
	 
      	 
      	
              Is
      each hedging instrument(s) matched to specific groups of mortgages?
      __________

            
	 
      	 
      	
              Are
      any hedging transactions:

            
	 
      	 
      	 
      	 
      	
              (A)

            	
              investments
      in future contracts? ____

            
	 
      	 
      	 
      	 
      	
              (B)

            	
              investments
      in options contracts? _____

            
	 
      	 
      	 
      	 
      	
              (C)

            	
              investments
      in other derivative investment vehicles acquired as independent
      investments? ______

            
	 
      	 
      	
              (See
      attached schedule.)

            
	 
      	 
      	
              (iv)

            	
              Loan
      and advances to M/I Homes = $________

            
	 
      	 
      	
              (Subsection
      6.5 imposes no limit on loans and advances to M/I
  Homes.)

            
	 
      	 
      	
              Does
      M/I Financial have any investments other than specifically listed above?
      ____________