Exhibit 10.13


 


SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED

WAREHOUSING CREDIT AND SECURITY AGREEMENT


 


This Second Amendment to
Fourth Amended and Restated Warehousing Credit and Security Agreement (this “Amendment”),
is entered into effective as of the 1st day of June, 2007, by and between SIRVA MORTGAGE, INC., an Ohio corporation (“Company”) and WASHINGTON MUTUAL BANK, a federal association, (“Lender”).


 


Section 1.               Recitals.  Company and
Lender entered into that certain Fourth Amended and Restated Warehousing Credit
and Security Agreement dated June 1, 2006, (the “Credit Agreement”) for
the purposes and consideration therein expressed.  Company and the Lender desire to make certain
amendments to the Credit Agreement as more particularly set forth herein.  Therefore, Company and the Lender hereby
agree as follows, intending to be legally bound:


 


Section 2.               Definitions and References. 
Unless the context otherwise requires or unless otherwise expressly
defined herein, the terms in the Credit Agreement shall have the same meanings
whenever used in this Amendment.


 


Section 3.               Amendments.  The Credit Agreement is hereby amended, as
follows:


 


(a)               The following definitions are hereby
amended and restated to read and/or added to Section 1.1 Defined Terms
of the Credit Agreement for all purposes:


 


“Aged Mortgage Loan” means (i) a Mortgage
Loan other than a Relocation Mortgage Loan, that satisfies all of the
requirements of an Eligible Mortgage Loan except it has been included in
Collateral for a period of more than ninety (90) days and (ii) a
Relocation Mortgage Loan that satisfies all of the requirements of an Eligible
Mortgage Loan except it has been included in Collateral for a period of more
than one hundred twenty (120) days.


 


“Termination Date” means June 1, 2008, or
such earlier date upon which Lender’ obligation to fund shall be terminated
pursuant to the terms of this Agreement.


 


“Unit Collateral Value”
means, at the time of any determination, (a) with respect to any Eligible
Mortgage Loan that is not a Relocation Mortgage Loan, HELOC Mortgage Loan, or
an Aged Mortgage Loan, an amount equal to ninety-eight percent (98%) of the
Collateral Value of such Mortgage Loan as of such date; (b) with respect
to any Eligible Mortgage Loan that is a HELOC Mortgage Loan but not an Aged
Mortgage Loan, an amount equal to ninety-six percent (96%) of the Collateral
Value of such Mortgage Loan as of such date; (c) with respect to any
Eligible Mortgage


 

















 


Loan that is a Relocation
Mortgage Loan but not an Aged Mortgage Loan, included in collateral for 90 days
or less, an amount equal to ninety percent (90%) of the Collateral Value of
such Mortgage Loan as of such date; (d)  with respect to any Eligible
Mortgage Loan that is a Relocation Mortgage Loan or an Aged Mortgage Loan, included
in collateral for more than 91 days but not in excess of 120 days, an amount
equal to eighty percent (80%) of the Collateral Value of such Mortgage Loan as
of such date; (e) with respect to each Aged Mortgage Loan included in the
Collateral (calculated from the date such Mortgage Loan was originally pledged
to Lender) for more than 121 days but not in excess of 150 days, an amount
equal to seventy percent (70%) of the Collateral Value of such Mortgage Loan as
of such date; (f) with respect to each Aged Mortgage Loan included in the
Collateral (calculated from the date such Mortgage Loan was originally pledged
to Lender) for more than 151 days but not in excess of 180 days, an amount
equal to sixty percent (60%) of the Collateral Value of such Mortgage Loan as
of such date; (g) with respect to each Aged Mortgage Loan included in the
Collateral (calculated from the date such Mortgage Loan was originally pledged
to Lender) for more than 180 days, the Unit Collateral Value of such Mortgage
Loan shall be equal to zero, and (h) with respect to any Mortgage Loan
that is not an Eligible Mortgage Loan, its Unit Collateral Value shall be zero.


 


(b)           Section 2.4 (a) of the Credit
Agreement is hereby amended and restated as follows:


 


“2.4         Interest.


 


(a)           (1)           Except as provided in Section 2.4(c) below,
the unpaid amount of each Advance against Mortgage Loans that are not
Relocation Mortgaged Loans or Aged Mortgage Loans shall bear interest, from the
date of such Advance until paid in full, at a rate of interest equal to the
lesser of (i) the Maximum Rate, or (ii) a floating rate of interest
which is equal to 100 basis points (1.00%) per annum over the Monthly Average
LIBOR Rate.


 


(2)           Except as provided in Section 2.4(c) below,
the unpaid amount of each Advance outstanding against Relocation Mortgage Loans
shall bear interest, from the date of such Advance until paid in full, at a
rate of interest equal to the lesser of (i) the Maximum Rate or (ii) a
floating rate of interest (“Basic Rate”) which is equal to 200 basis points
(2.00%) per annum over the Monthly Average LIBOR Rate.


 


(3)           Except as provided in Section 2.4(c) below,
the unpaid amount of each Advance outstanding against Aged Mortgage Loans shall
bear interest, from the date such Mortgage Loans become Aged Mortgage Loans
until such Advance is paid in full, at a rate of interest equal to the lesser
of (i) the Maximum Rate or (ii) a floating rate of interest (“Basic
Rate”) which is equal to 200 basis points (2.00%) per annum over the Monthly
Average LIBOR Rate.”


 


(c)           Section 2.5(c)(1) of the Credit
Agreement is hereby amended and restated as follows:


 


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“1            The expiration of ninety (90) days
from the date of any Advance for any Mortgage Loan (excluding Relocation Mortgage
Loans and Aged Mortgage Loans);”


 


(d)           Subsections 2.5(c)(2) through 2.5(c)(8) of
the Credit Agreement are hereby redesignated to Subsections 2.5(c)(3) through
2.5(c)(9) respectively, and subsection 2.5(c)(2) below is hereby
added to the Credit Agreement:


 


“2            The expiration of one hundred
twenty (120) days from the date of any Advance for any Relocation Mortgage
Loans;”


 


(e)           Section 2.5(d) of the Credit
Agreement is hereby amended and restated as follows:


 


“(d)         With respect to Aged Mortgage Loans, the Company shall
be obligated to pay to the Lender (and the Company authorizes the Lender to
charge the operating account or any other accounts of the Company [excluding
monies held by the Company in trust for third parties] in Lender’s possession
for the payment thereof) the principal payments in the amounts and on the dates
specified below:


 


(1)           On the date a Pledged Mortgage that
is not a Relocation Mortgage Loan becomes an Aged Mortgage Loan, a principal
payment in an amount necessary to reduce the outstanding unpaid Advances
against such Aged Mortgage Loan to an amount equal to ninety percent (90%) of
the Collateral Value of such Aged Mortgage Loan as of such date;


 


(2)           Thirty (30) days following the date
a Pledge Mortgage that is not a Relocation Mortgage Loan becomes an Aged
Mortgage Loan and the date a Pledged Mortgage that is a Relocation Mortgage
Loan becomes an Aged Mortgage Loan, a principal payment in an amount necessary
to reduce the outstanding unpaid Advances against such Aged Mortgage Loan to an
amount equal to eighty percent (80%) of the Collateral Value of such Aged
Mortgage Loan as of such date;


 


(3)           Sixty (60) days following the date
a Pledge Mortgage that is not a Relocation Mortgage Loan becomes an Aged
Mortgage Loan and thirty (30) days following the date a Pledge Mortgage that is
a Relocation Mortgage Loan becomes an Aged Mortgage Loan, a principal payment
in an amount necessary to reduce the outstanding unpaid Advances against such
Aged Mortgage Loan to an amount equal to seventy percent (70%) of the
Collateral Value of such Aged Mortgage Loan as of such date;


 


(4)           Ninety (90) days following the date
a Pledge Mortgage that is not a Relocation Mortgage Loan becomes an Aged
Mortgage Loan and sixty (60) days following the date a


 


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Pledge Mortgage that is a
Relocation Mortgage Loan becomes an Aged Mortgage Loan, an amount equal to the
balance of the aggregate outstanding unpaid Advances against such Aged Mortgage
Loan.”


 


(f)            The promissory note (“Credit Note”) dated
as of June 1, 2007, in the original principal amount of $40,000,000.00,
executed by Company and payable to the order of Lender, is given to Lender in
renewal and extension of the promissory note dated as of June 1, 2006, in
the original principal amount of $40,000,000.00, executed by Company and
payable to the order of Lender (such note together with all other notes
heretofore given to evidence the Obligations are referred to collectively as
the “Prior Notes”) and not in novation or discharge thereof.  The definition of the term “Note” in the
Credit Agreement is hereby amended to mean the Credit Note and all renewals,
extensions, modifications, increases, rearrangements, and replacements thereof.


 


Section 4.               Representations and Release of Claims. 
Except as otherwise specified herein, the terms and provisions hereof
shall in no manner impair, limit, restrict or otherwise affect the Obligations
of Company as evidenced by the Loan Documents. 
Company hereby acknowledges, agrees, and represents that (i) Company
is indebted to Lenders pursuant to the terms of the Note; (ii) the liens,
security interests and assignments created and evidenced by the Loan Documents
are, respectively, first, prior, valid and subsisting liens, security interests
and assignments against the Collateral and secure all indebtedness and
obligations of Company to Lenders under the Note, the Credit Agreement, all
other Loan Documents, as modified herein; (iii) all of the representations
and warranties contained in the Credit Agreement and all instruments and
documents executed pursuant thereto or contemplated thereby are true and
correct in all material respects on and as of this date; (iv) the
representations and warranties contained in the Loan Documents are true and
correct representations and warranties of Company, as of the date hereof; and (v) Company
is not in default and no event has occurred which, with the passage of time,
giving of notice, or both, would constitute a default by Company of Company’s
obligations under the terms and provisions of the Loan Documents.


 


Section 5.               Severability. 
In the event any one or more provisions contained in the Credit
Agreement or this Amendment should be held to be invalid, illegal or
unenforceable in any respect, the validity, enforceability and legality of the
remaining provisions contained herein and therein shall not be affected in any
way or impaired thereby and shall be enforceable in accordance with their
respective terms.


 


Section 6.               Fees and Expenses. 
Company agrees to pay all out-of-pocket costs and expenses (including
reasonable attorney’s fees and expenses) of the Lender in connection with the
preparation, operation, administration and enforcement of this Amendment.


 


Section 7.               Ratification of Agreements.  (a) Except
as amended hereby, Company ratifies and confirms that the Credit Agreement and
all other Loan Documents are and remain in full force and effect in accordance
with their respective terms and that all Collateral is unimpaired by this
Amendment and secures the payment and performance of all indebtedness and
obligations of Company under the Note, the Credit Agreement, and all other Loan
Documents, as modified hereby.


 


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(b)           The undersigned officer of the Company executing this
Amendment represents and warrants that he has full power and authority to
execute and deliver this Amendment on behalf of the Company this Amendment,
that such execution and delivery has been duly authorized by all necessary
corporate action of Company, and represents and warrants that the resolutions
and affidavits previously delivered to Lender, in connection with the execution
and delivery of the Credit Agreement, are and remain in full force and effect
and have not been altered, amended or repealed in anyway.


 


(c)           Any reference to the Credit Agreement in any Loan
Document shall be deemed to be references to the Credit Agreement as amended
hereby.


 


Section 8.               Authority.  The
undersigned officer of the Company executing this Amendment represents and
warrants that he has full power and authority to execute and deliver this
Amendment on behalf of the Company this Amendment, that such execution and
delivery has been duly authorized by all necessary corporate action of Company,
and represents and warrants that the resolutions and affidavits previously
delivered to Lender, in connection with the execution and delivery of the
Credit Agreement, are and remain in full force and effect and have not been
altered, amended or repealed in anywise.


 


Section 9.               No Waiver.  Company
agrees that no Event of Default and no Default has been waived or remedied by
the execution of this Amendment by Lender, and any such Default or Event of
Default heretofore arising and currently continuing shall continue after the execution
and delivery hereof.


 


Section 10.             Governing Law. 
This Amendment shall be governed by and construed in accordance with the
laws of the State of Texas and, to the extent applicable, by federal law.


 


Section 11.             Counterparts and Gender. 
This Amendment may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and the same
instrument.  Each gender used herein
shall include and apply to all genders, including the neuter.


 


Section 12.             NO ORAL AGREEMENTS. 
THIS AMENDMENT, THE CREDIT AGREEMENT, THE NOTE, AND  THE 
OTHER  LOAN  DOCUMENTS, AS MODIFIED AND AMENDED HEREBY,
REPRESENT  THE  FINAL 
AGREEMENT  BETWEEN  THE 
PARTIES  AND  MAY  NOT 
BE  CONTRADICTED  BY 
EVIDENCE  OF  PRIOR, 
CONTEMPORANEOUS  OR  ORAL 
AGREEMENTS  OF  THE 
PARTIES.


 


THERE  ARE 
NO  UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.


 


[Signature Pages Follow]


 


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EXECUTED to be effective as of the date first written
above.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SIRVA MORTGAGE, INC.,

  
	
   

  	
  an Ohio corporation
  f/k/a

  
	
   

  	
  COOPERATIVE MORTGAGE
  SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Klemme

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
       PAUL
  KLEMME, President

  



 


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  WASHINGTON MUTUAL BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Ben R. Culver

  
	
   

  	
  Name:

  	
  Ben R. Culver

  
	
   

  	
  Title:

  	
  Vice President

  
				



 


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