Exhibit 10.1


 


FIFTH AMENDMENT TO THIRD AMENDED AND RESTATED

WAREHOUSING CREDIT AND SECURITY AGREEMENT


 


This Fifth
Amendment to Third Amended and Restated Warehousing Credit and Security
Agreement (this “Amendment”), is entered into effective as of the 18th day of
June, 2004, by and among SIRVA MORTGAGE, INC., an Ohio corporation
f/k/a Cooperative Mortgage Services, Inc. (“Company”), WASHINGTON MUTUAL BANK, FA, a
federal association, in its capacity as one of the Lenders and Agent for the
Lenders (“Agent”), NATIONAL CITY BANK OF KENTUCKY, in its
capacity as one of the Lenders and Documentation Agent for the Lenders and the
lenders (“Lenders”) party to the Credit Agreement, as defined below.


 


Section 1.                                            Recitals.  Company, Agent, Documentation Agent, and
Lenders entered into that certain Third Amended and Restated Warehousing Credit
and Security Agreement dated September 30, 2002, (the “Credit Agreement”)
for the purposes and consideration therein expressed.  Company, Agent, Documentation Agent, and the Lenders desire to
make certain amendments to the Credit Agreement as more particularly set forth
herein.  Therefore, Company, Agent,
Documentation Agent, and the Lenders 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/or added in Section 1.1 of
the Credit Agreement as follows:


 


“Commitment”
means the commitment of the Lenders to make Advances hereunder in an aggregate
principal amount at any time outstanding that shall not exceed EIGHTY MILLION
AND NO/100 DOLLARS ($80,000,000.00) (“Aggregate Commitment Amount”), provided,
however, that no Lender’s portion of such Advances may ever exceed its
Commitment Amount.


 


“Credit A
Mortgage Loan” means a FHA Loan, VA Loan, Conventional Mortgage Loan, a
Jumbo Loan, or a Super Jumbo Loan.


 


“Jumbo Loan”
means a Single-family Mortgage Loan whose original principal amount is more
than $650,000.00 but not more than $1,000,000.00.


 


“Super Jumbo
Loan” means a Single-family Mortgage Loan whose original principal amount
is more than $1,000,000.00; provided, however, if such Mortgage Loan will be
included in Collateral, Agent has approved such Mortgage Loan prior to its
pledge.


 

















 


“Termination
Date” means June 1, 2005 or such earlier date upon which Lenders’
obligation to fund shall be terminated pursuant to the terms of this Agreement.


 


(b)                                 Sections
2.1(b) (3), (4), and (5) of the Credit Agreement are deleted in their entirety,
and the following is substituted in lieu thereof for all purposes:


 


“(3)                            The
aggregate amount of Advances against Aged Mortgage Loans outstanding at any one
time shall not exceed ONE MILLION AND NO/100 DOLLARS ($1,000,000.00).


 


(4)                                  The
aggregate amount of Advances against HELOC Mortgage Loans outstanding at any one
time shall not exceed THREE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($3,500,000.00).


 


(5)                                  The
aggregate amount of Advances against Repurchased Mortgage Loans outstanding at
any one time shall not exceed ONE MILLION AND NO/100 DOLLARS ($1,000,000.00).”


 


(c)                                  The
following subparagraph (6) is hereby added to Section 2.1(b) of the Credit
Agreement for all purposes:


 


“(6)                            The
aggregate amount of Advances against Jumbo Loans outstanding at any one time
shall not exceed TEN MILLION AND NO/100 DOLLARS ($10,000,000.00); provided,
however, that in no event shall the aggregate amount of Advances against Super
Jumbo Loans outstanding at any one time exceed FIVE MILLION AND NO/100 DOLLARS
($5,000,000.00).”


 


(a)                                  Section 2.4
(a) of the Credit Agreement is deleted in its entirety and the following is
substituted in lieu thereof:


 


“2.4                           Interest.


 


(a)                                  (1)     Except
as provided in Section 2.4(c) below, the unpaid amount of each Advance
against Shipped Mortgage Loans that are not Repurchased Mortgage Loans or Aged Mortgage
Loans shall bear interest, from the date such Mortgage Loans become Shipped
Mortgage Loans until the earlier to occur of (i) such Mortgage Loan ceases to
be a Shipped Mortgage Loan or (ii) such Advance is paid in full, at a rate of
interest equal to 137.5 basis points (1.375%) per annum over the Monthly
Average LIBOR Rate.


 


(2)     Except as provided in
Section 2.4(c) below, the unpaid amount of each Advance against Mortgage
Loans that are not Shipped Mortgage Loans, or Repurchased Mortgage 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


 


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floating rate of interest which is equal to 187.5 basis points (1.875%)
per annum over the Monthly Average LIBOR Rate.


 


(3)     Except as provided in
Section 2.4(c) below, the unpaid amount of each Advance against
Repurchased 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 287.5
basis points (2.875%) per annum over the Monthly Average LIBOR Rate.


 


(4)     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 287.5 basis points
(2.875%) per annum over the Monthly Average LIBOR Rate.”


 


(d)                                 Section 2.8     Fees.
of the Credit Agreement is deleted in its entirety, and the following is
substituted in lieu thereof:


 


“2.8                           Fees.


 


(a)                                  At
the end of each month during the term of this Agreement (i.e., from its
effective date through the Termination Date), the Agent shall determine average
usage of the Commitment by calculating the arithmetic daily average of the
outstanding balance of Advances in that month. 
The Agent shall then subtract the average usage (the “Used Portion”)
from the Commitment (the result being called the “Unused Portion”) and
the Company shall pay to the Agent on behalf of the Lenders in arrears (without
duplication of payment), on or before five (5) days after the later of (a) the
end of each month or (b) the Company’s receipt of the bill for such
monthly period, a Non-Usage Fee equal to 0.150% per annum on the total amount
of the Unused Portion of the Commitment for that month, as compensation to the
Lenders for their agreement to make the Commitment available to the Company
during that month and not as compensation for the use, forbearance or detention
of money (i.e., as a “true commitment fee” under Texas law); provided
that such fee shall be waived for any month if the Used Portion for such month
is equal to or greater than fifty percent (50%) of the Commitment.  Each calculation by the Agent of the amount
of any Non-Usage Fee shall be conclusive and binding on the Company, absent
manifest error.  Upon receipt of any
Non-Usage Fee, Agent shall distribute to each Lender its Commitment Percentage
in such Non-Usage Fee pursuant to this Section 2.7(b) hereof.


 


(b)                                 Agent
shall receive for its own account an agent’s fee (“Agent’s Fee”) pursuant to
the certain agreement of even date herewith among the Agent and the other
Lenders.


 


(e)                                  Section 2.9                                      Miscellaneous
Expenses. of the Credit Agreement is deleted in its entirety, and the
following is substituted in lieu thereof:


 


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“2.9                           Miscellaneous
Expenses.  At the end of each month
during the term of this Agreement, the Company shall pay to the Agent in
arrears on or before five (5) days after the later of (a) the end of each
calendar month or (b) the Company’s receipt of the Agent’s bill for such
monthly period, a transaction fee equal to TWENTY AND NO/100 DOLLARS ($20.00)
per Pledged Mortgage held by Agent during such month and for which Agent has
not previously received a transaction fee, for the handling and administration
of Advances and Collateral.  For the
purposes hereof, Company shall, at its sole cost and expense, pay all miscellaneous
charges and expenses incurred by the Agent in connection with the handling and
administration of Advances and Collateral, including, without limitation, all
charges for security delivery fees, wiring fees, and charges for overnight
delivery of Collateral to Investors. 
Miscellaneous charges are due when incurred, but shall not be delinquent
if paid within ten (10) days after receipt of an invoice or an account analysis
statement from the Agent.  No Lender
(other than a Lender acting as Agent) shall be entitled to share or participate
in the fees, sums and other amounts due and payable to the Agent under this
Section 2.9, Section 2.8(b), or any other agreement between the
Company or any Lender and Agent relating to an agent’s fee for the handling and
administration of Advances and Collateral and acting as Agent under this
Agreement.”


 


(f)                                    Section 7.5                                      Minimum
Adjusted Tangible Net Worth. of the Credit Agreement is deleted in its
entirety, and the following is substituted in lieu thereof:


 


“7.5                           Minimum
Adjusted Tangible Net Worth.  Permit
the sum of the Adjusted Tangible Net Worth of Company (and its Subsidiaries, on
a consolidated basis) to be less than an amount equal to the sum of FIVE
MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($5,500,000.00).


 


(g)                                 Exhibit
“O” to the Credit Agreement is deleted in its entirety and Exhibit
“O” to this Amendment is given in substitution and replacement
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 Notes; (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 Notes, 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) there are no claims or offsets
against, or defenses or counterclaims to, the terms or provisions of the Loan
Documents, and the other obligations created or evidenced by the Loan Documents;
(v) Company has no claims, offsets, defenses or counterclaims arising from any
of the Agent’s or Lenders’ acts or omissions with respect to the Loan
Documents, or the Agent’s or Lenders’ performance under the Loan Documents;
(vi) the representations and warranties contained in the Loan Documents are
true and correct representations and warranties of Company, as of the date
hereof; and (vii) Company is not in default and no event has occurred which,
with the passage of time, giving of notice, or


 


4

















 


both, would constitute a
default by Company of Company’s obligations under the terms and provisions of
the Loan Documents.  In consideration of the modification of Loan
Documents, all as herein provided, and the other benefits received by Company
hereunder, Company hereby RELEASES, RELINQUISHES and forever DISCHARGES Agent,
Documentation Agent, each Existing Lender, their respective predecessors,
successors, assigns, shareholders, principals, parents, subsidiaries, agents,
officers, directors, employees, attorneys and representatives (collectively,
the “Lender Released Parties”), of and from any and all claims, demands,
actions and causes of action of any and every kind or character, whether known
or unknown, present or future, which Company has, or may have against Lender
Released Parties, arising out of or with respect to any and all transactions
relating to the Credit Agreement, the Notes, and the other Loan Documents
occurring prior to the date hereof, including any other loss, expense and/or
detriment, of any kind or character, growing out of or in any way connected
with or in any way resulting from the acts, actions or omissions of the Lender
Released Parties, and including any loss, cost or damage in connection with any
breach of fiduciary duty, breach of any duty of fair dealing, breach of
competence, breach of funding commitment, undue influence, duress, economic
coercion, conflict of interest, negligence, bad faith, malpractice, violations
of the Racketeer Influence and Corrupt Organizations Act, intentional or
negligent infliction of emotional or mental distress, tortious interference
with corporate governance or prospective business advantage, tortious
interference with contractual relations, breach of contract, deceptive trade
practices, libel, slander, conspiracy, the charging, contracting for, taking,
reserving, collecting or receiving of interest in excess of the highest lawful
rate applicable to the Loan Documents (i.e., usury), any violations of federal
or state law, any violations of federal or state banking rules, laws or
regulations, including, but not limited to, any violations of Regulation B,
Equal Credit Opportunity, bank tying act claims, any violation of the Texas
Free Enterprise Antitrust Act or any violation of federal antitrust acts.


 


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 Agent and the Lenders 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 Notes, the Credit Agreement, and all other Loan Documents, as
modified hereby.  Company shall execute
and deliver a renewal Note to each Lender in the amount of its respective
Commitment Amount.


 


(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


 


5

















 


authorized by all necessary corporate action of Company, and represents
and warrants that the resolutions and affidavits previously delivered to Agent,
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.  Any reference in this Amendment and the other Loan Documents to
the Notes shall be deemed to be references to the new Notes executed and
delivered by the Company in connection herewith.


 


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 Agent, 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 Agent and Lenders, 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 NOTES, 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 this
     day of June, 2004 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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  SIRVA  MORTGAGE, INC

  
	
   

  	
  Attn:
  Paul Klemme, President

  
	
   

  	
  6070
  Parkland Boulevard

  
	
   

  	
  Mayfield
  Heights, Ohio  44124

  
	
   

  	
  Fax
  No.: (440) 646-1835

  



 


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  WASHINGTON
  MUTUAL BANK, F.A., as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Colleen Landells

  	
   

  
	
   

  	
  Name:

  	
  Colleen Landells

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  Attn:
  Marlon M. Rivera

  
	
   

  	
  Assistant
  Vice President/Asset Manager II

  
	
   

  	
  Agency
  Management

  
	
   

  	
  6011
  Connection Drive, 6th Floor

  
	
   

  	
  Irving,
  Texas 75039

  
	
   

  	
  Facsimile:
  (469) 549-5603

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WASHINGTON
  MUTUAL BANK, F.A., as a

  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Ben Culver

  	
   

  
	
   

  	
  Name:

  	
  Ben
  Culver

  	
   

  
	
   

  	
  Title:

  	
    VP

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  Attn:
  Michael D. McAuley, Managing Director

  
	
   

  	
  Mortgage
  Banker Finance

  
	
   

  	
  3200
  Southwest Freeway, Suite 1922

  
	
   

  	
  Houston,
  Texas 77027

  
	
   

  	
  Facsimile:
  (713) 543-4292

  
								



 


8

















 


	
   

  	
  NATIONAL
  CITY BANK OF KENTUCKY, as

  Documentation Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jerry Johnston

  	
   

  
	
   

  	
  Name:

  	
  Jerry
  Johnston

  	
   

  
	
   

  	
  Title:

  	
    Senior
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  NATIONAL
  CITY BANK OF KENTUCKY

  
	
   

  	
  Attn:
  Allen Hagadon, Senior Vice
  President,

  
	
   

  	
  Mortgage
  Banking

  
	
   

  	
  421
  West Market Street

  
	
   

  	
  Louisville,
  Kentucky 40202

  
	
   

  	
  Fax:
  (502) 581.4154

  
						



 


9

















 


	
   

  	
  COLONIAL
  BANK, N.A., a national banking

  association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Amy J. Nunneley

  	
   

  
	
   

  	
  Name:

  	
  Amy
  J. Nunneley

  	
   

  
	
   

  	
  Title:

  	
    Senior
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  COLONIAL
  BANK

  
	
   

  	
  Attn:
  Catherine L. Kissick, Senior Vice President,

  
	
   

  	
  Mortgage
  Warehouse Lending Division

  
	
   

  	
  201
  East Pine Street, Suite 730

  
	
   

  	
  Orlando,
  Florida 32801

  
	
   

  	
  Fax:
  (407) 835.6690

  
						



 


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EXHIBIT “O”


 


LENDERS AND COMMITMENT


 


	
  NAME OF
  LENDER

  	
   

  	
  COMMITMENT
  AMOUNT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Washington
  Mutual Bank, FA

  3200 Southwest Freeway,

  Suite 1922

  Houston, Texas 77027

  	
   

  	
  $

  	
  40,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  National City
  Bank of Kentucky

  101 South Fifth Street, T06K

  Louisville, Kentucky 40202

  	
   

  	
  $

  	
  20,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Colonial Bank,
  N.A.

  201 East Pine Street, Suite 730

  Orlando, Florida 40202

  	
   

  	
  $

  	
  20,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL COMMITMENT

  	
   

  	
  $

  	
  80,000,000.00