Exhibit
10.4
SECOND AMENDMENT
TO
FIRST AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO FIRST AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT (herein called this "
Amendment ") dated as of April 27, 2007 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, 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 " shall mean this Second
Amendment to Credit Agreement.
" Amendment Documents " shall mean,
collectively, this Amendment and the Renewal Note.
" Commitment " shall mean the Bank's
agreement to make the Loans to the Borrowers pursuant to
subsection 2.1 hereof in the amount referred to herein, which
amount shall not exceed the lesser of (a)(i) from and
including April 27, 2007 through and including
December 14, 2007, $40,000,000, (ii) from and including
December 15, 2007 through and including January 15, 2008,
$65,000,000 and (iii) from and including January 16, 2008
through and including April 25, 2008, $40,000,000, and
(b) the Borrowing Base in existence at such time.
" Credit Agreement " shall mean the
Original Credit Agreement, as amended hereby.
" Renewal Note " shall mean 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 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 27, 2007 through and including
April 25, 2008, or such earlier date as the Commitment shall
terminate as provided herein, subject to any extension of the
Commitment pursuant to subsection 2.7 of this
Agreement.
(b) 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 or
trust 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;
Section 2.2.
Exhibits . Exhibit A (Form of Note) attached to this
Amendment 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; and.
(d) each other document to be executed and delivered
by Borrowers pursuant hereto or thereto.
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 bind