Exhibit 10.1 M/I Financial Third Amendement to Warehousing Agreement 6-2615








Exhibit 10.1




THIRD AMENDMENT TO AMENDED AND RESTATED MORTGAGE WAREHOUSING AGREEMENT
This Third Amendment to Amended and Restated Mortgage Warehousing Agreement (“Third Amendment”) is made as of June 26, 2015, by and among M/I Financial, LLC (f/k/a M/I Financial Corp.) (“Borrower”), the Lenders (as defined below) and Comerica Bank, as administrative agent for the Lenders (in such capacity, the “Agent”).
RECITALS
A.    Borrower entered into that certain Amended and Restated Mortgage Warehousing Agreement dated March 29, 2013, by and among the financial institutions from time to time signatory thereto (each, individually, a “Lender,” and any and all such financial institutions collectively the “Lenders”), Agent and Borrower, as amended by the First Amendment to Amended and Restated Mortgage Warehousing Agreement dated March 28, 2014, and the Second Amendment to Amended and Restated Mortgage Warehousing Agreement dated March 2, 2015 (as amended, restated or otherwise modified from time to time, the “Mortgage Warehousing Agreement”).
B.    Borrower has requested that Agent and the Lenders make certain amendments to the Mortgage Warehousing Agreement and Agent and the Lenders are willing to do so, but only on the terms and conditions set forth in this Third Amendment.
NOW, THEREFORE, in consideration of the Recitals and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Borrower, Agent and Lenders agree as follows:
1.The following definitions set forth in Section 1.1 of the Mortgage Warehousing Agreement are amended and restated in their entirety as follows:


“Applicable Margin” shall mean (i) with respect to any Advance accruing interest at the Daily Adjusting LIBOR Rate, two and one half of one percent (2.5%) per annum and (ii) with respect to any Advance accruing interest at the Base Rate, one and one half of one percent (1.50%) per annum.
“Revolving Credit Maturity Date” shall mean the earlier to occur of (i) June 24, 2016, and (ii) the date on which the Revolving Credit Aggregate Commitment shall terminate in accordance with the provisions of this Agreement.
“Tangible Net Worth” shall mean, as of any applicable time of determination, the excess of (i) (a) the net book value of the assets of Borrower and any Subsidiary Guarantor at such time, as determined for each asset in accordance with GAAP (other than patents, patent rights, trademarks, trade names, franchises, copyrights, licenses, goodwill, capitalized servicing rights, notes and accounts receivable due from stockholders, directors, officers, employees, Affiliates or other related Persons that are not Subsidiary Guarantors, subscribed stock, Mortgage Loans held for investment (net of reserves), real property acquired by Borrower by foreclosure or deed in lieu of foreclosure (net of reserves), Mortgage Servicing Rights, and any other assets which are deemed to be intangible assets by Agent, in its sole Discretion), after all appropriate deductions in accordance with GAAP (including, without limitation, reserves for doubtful receivables, obsolescence, depreciation and amortization), less the long term component of deferred taxes and charges, plus (b) the value, as determined by Agent in its sole Discretion (and, in determining such value, Agent may discount such value by margins as Agent shall determine from time to time in its sole discretion), of all Cash and Cash Equivalents Collateral, minus (c) the aggregate amount then outstanding in respect of intercompany loans or advances made by any Credit Party to or in any Non-Guarantor Subsidiary, plus (d) the least of (x) the net book value of Mortgage Servicing Rights, (y) the most recent third party valuation of Mortgage Servicing Rights acceptable to Agent, or (z) one percent (1%) of the aggregate outstanding principal amount of the Mortgage Loans included in the Borrower’s Servicing Portfolio on such date of determination over (ii) the Adjusted Total Liabilities at such time.
2.This Third Amendment shall become effective (according to the terms hereof) on June 26, 2015 (the “Third Amendment Effective Date”) if, on or prior to such date, the following conditions have been fully satisfied:


		
	(a)
	Agent shall have received via facsimile or portable digital format (followed by the prompt delivery of original signatures) counterpart originals of this Third Amendment, in each case duly executed and delivered by the Agent, Borrower and the Lenders.













		
	(b)
	Borrower shall have paid to the Agent all fees or amounts, if any, that are due and owing to the Agent as of the Third Amendment Effective Date.




3.Borrower and each of the undersigned hereby represents and warrants that, after giving effect to the amendments to the Mortgage Warehousing Agreement contained herein, (a) the execution and delivery of this Third Amendment are within such party’s limited liability company powers, have been duly authorized, are not in contravention of law or the terms of its organizational documents, and except as have been previously obtained do not require the consent or approval, material to the amendments contemplated in this Third Amendment, of any governmental body, agency or authority, and this Third Amendment and the Mortgage Warehousing Agreement (as amended herein) will constitute the valid and binding obligations of such undersigned party, enforceable in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (whether enforcement is sought in a proceeding in equity or at law), (b) the representations and warranties set forth in Article 4 of the Mortgage Warehousing Agreement are true and correct in all material respects on and as of the date hereof (other than any representation or warranty that expressly speaks only as of a certain date), and (c) as of the date first above written and as of the Third Amendment Effective Date, no Default or Event of Default shall have occurred and be continuing. 


4.Borrower and Lenders each hereby ratify and confirm their respective obligations under the Mortgage Warehousing Agreement, as amended by this Third Amendment and agree that the Mortgage Warehousing Agreement hereby remains in full force and effect after giving effect to this Third Amendment and that, upon such effectiveness, all references in such Loan Documents to the “Mortgage Warehousing Agreement” shall be references to the Mortgage Warehousing Agreement as amended by this Third Amendment.


5.Except as specifically set forth above, this Third Amendment shall not be deemed to amend or alter in any respect the terms and conditions of the Mortgage Warehousing Agreement or any of the Notes issued thereunder, or to constitute a waiver by the Lenders or Agent of any right or remedy under or a consent to any transaction not meeting the terms and conditions of the Mortgage Warehousing Agreement, any of the Notes issued thereunder or any of the other Loan Documents.


6.Unless otherwise defined to the contrary herein, all capitalized terms used in this Third Amendment shall have the meaning set forth in the Mortgage Warehousing Agreement.


7.This Third Amendment may be executed in counterpart in accordance with Section 11.9 of the Mortgage Warehousing Agreement.


8.This Third Amendment shall be construed in accordance with and governed by the laws of the State of Michigan, without giving effect to principles of conflict of laws. 


9.As a condition of the above amendments and waiver, Borrower waives, discharges, and forever releases Agent, Lenders and their respective employees, officers, directors, attorneys, stockholders and successors and assigns, from and of any and all claims, causes of action, allegations or assertions known to Borrower that Borrower has or may have had at any time up through, and including, the date of this Third Amendment, against any or all of the foregoing in connection with the Mortgage Warehousing Agreement, including the Third Amendment thereto regardless of whether any such claims, causes of action, allegations or assertions arose as a result of Agent’s or such Lender’s actions or omissions.  













IN WITNESS WHEREOF, Borrower, the Lenders and Agent have each caused this Third Amendment to be executed by their respective duly authorized officers or agents, as applicable, all as of the date first set forth above.


M/I FINANCIAL, LLC




By:    /s/ Paul S. Rosen                    


Name:    Paul S. Rosen


Its:     President & CEO















COMERICA BANK, as Agent and a Lender




By:      /s/ Celeste Ludwig                    


Name:    Celeste Ludwig


Title:      Vice President

















THE HUNTINGTON NATIONAL BANK, as a Lender




By:      /s/ Florentina Djulvezan                        


Name:      Florentina Djulvezan


Title:     Assistant Vice President



















BMO HARRIS BANK N.A., as a Lender




By:      /s/ Adam J. Tarr                            


Name:      Adam J. Tarr


Title:      Vice President