Exhibit 10.2
WAIVER AND FIFTH AMENDMENT
TO
AMENDED AND RESTATED RECEIVABLES
SALE AGREEMENT
This WAIVER AND FIFTH AMENDMENT TO
AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT dated as of
November 14, 2005 (this “ Amendment ”) is
entered into among SIRVA RELOCATION CREDIT, LLC, as Seller, SIRVA
RELOCATION LLC (“ SIRVA Relo ”) and EXECUTIVE
RELOCATION CORPORATION (“ Executive Relo ”), as
Servicers and Originators, GENERAL ELECTRIC CAPITAL CORPORATION,
THE CIT GROUP/BUSINESS CREDIT, INC. and LASALLE BANK NATIONAL
ASSOCIATION (“ LaSalle ”), as Purchasers, and
LaSalle, as Agent (in such capacity, the “ Agent
”).
RECITALS
A.
The Seller, the Servicers, the
Purchasers and the Agent are parties to that certain Amended and
Restated Receivables Sale Agreement dated as of December 23,
2004 and amended as of March 31, 2005, May 31, 2005,
June 30, 2005 and September 30, 2005 (as so amended, the
“ Receivables Sale Agreement ”).
B.
The parties wish to amend the
Receivables Sale Agreement as hereinafter set forth.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1.
Certain Defined Terms
. Capitalized terms which are
used herein without definition and that are defined in the
Receivables Sale Agreement shall have the same meanings herein as
in the Receivables Sale Agreement, as amended by this
Amendment.
2.
Amendments to Receivables Sale
Agreement . The
Receivables Sale Agreement is hereby amended as follows:
(a)
Definition of Applicable Base
Margin . The
definition of “Applicable Base Margin” in
Schedule I to the Receivables Sale Agreement is hereby amended
and restated to read as follows:
“ Applicable Base
Margin ” means (i) with respect to the period
following the date of the First Amendment to but excluding
June 30, 2005, 1.25% with respect to the Prime Rate and 2.25%
with respect to the Eurodollar Rate, (ii) with respect to the
period from and including June 30, 2005 to and excluding
September 30, 2005, 1.50% with respect to the Prime Rate and
2.50% with respect to the Eurodollar Rate, (iii) with respect
to the period from and including September 30, 2005 to but
excluding the first date by which all the financial statements
of SIRVA, Inc. and the Parent for the fiscal year ending
December 31, 2004 and for the fiscal quarters ending
March 31, 2005, June 30, 2005, September 30, 2005
and March 31, 2006 are delivered to the Agent (together with
the related compliance certificates required to be delivered under
the Receivables Sale Agreement), 1.75% with respect to the Prime
Rate and 2.75% with respect to the Eurodollar Rate, and
(iv) at any time thereafter the percentage set forth below
opposite the Consolidated
Leverage Ratio most recently
reported by Parent and its Subsidiaries under the SIRVA Credit
Agreement, as such agreement is in effect on the date hereof;
provided that if and for so long as such Consolidated Leverage
Ratio has not been so reported, the Applicable Base Margin shall be
as set forth in clause (iii) above.
|
CONSOLIDATED LEVERAGE
RATIO
|
|
PRIME RATE
|
|
EURODOLLAR RATE
|
|
|
Greater than or equal to 3.25
|
|
1.50
|
%
|
2.50
|
%
|
|
Greater than or equal to 2.75 and less than
3.25
|
|
1.25
|
%
|
2.25
|
%
|
|
Greater than or equal to 1.75 and less than
2.75
|
|
1.00
|
%
|
2.00
|
%
|
|
Less than 1.75
|
|
0.75
|
%
|
1.75
|
%
|
(b)
New Definition
. The following new definition
is hereby added to Schedule I to the Receivables Sale
Agreement, in the correct alphabetical spot:
“ Fifth Amendment
” means the Waiver and Fifth Amendment to Amended and
Restated Receivable Sale Agreement, dated as of November 14,
2005, among the Seller, the Servicers, the Originators, the Agent
and the Purchasers.
(c)
Revised Definition
. The definition of
“Specified Adjustments” in Schedule I to the
Receivables Sale Agreement is hereby amended and restated to read
as follows:
“ Specified Adjustments
” means adjustments to the financial results of
SIRVA, Inc. for the periods and in amounts materially similar
to the amounts specified in SIRVA, Inc.’s Form 8-K
filed September 21, 2005, to be evidenced by restatements of
SIRVA, Inc.’s financial statements for the fiscal year
ended December 31, 2004 to be made available to the Agent and
the Purchasers no later than November 30, 2005; provided,
however, that (x) except as has been disclosed by the Servicers to
the Purchasers in the supplement to the Fee Letter delivered in
connection with the First Amendment, such adjustments do not result
from (and are not alleged by any Governmental Authority or
Responsible Person to have resulted from) fraud, misconduct or
similar circumstances, and (y) such adjustments do not have a
Material Adverse Effect.
3.
Limited Consents and
Waivers .
(a)
Section 5.1(a)(i)(A), (B),
(C) and (D) of the Receivables Sale Agreement, as amended
by Section 3(a) of the Third Amendment and
Section 3(a) of the Fourth Amendment, require delivery no
later than November 15, 2005 of unqualified audited
consolidated financial statements of SIRVA, Inc. and the
Parent for the fiscal year ended December 31, 2004 (the
“ 2004 Audit ”) and delivery no later than
December 31, 2005 of unaudited consolidated quarterly
financial statements for SIRVA, Inc. and the Parent for the
periods ended March 31, 2005, June 30, 2005 and
September 30, 2005. Subject to
2
Section 4
of this Amendment and subject to the
representation and warranty in Section 5(vi) of
this Amendment being true and correct, the Agent and the Purchasers
agree that:
(i)
the delivery of such financial
statements for the fiscal year ended December 31, 2004 may be
delayed until November 30, 2005;
(ii)
the delivery of the unaudited
consolidated quarterly financial statements of SIRVA, Inc. and
the Parent to be delivered under clauses (B) and (D) of
Section 5.1(a)(i) of the Receivables Sale Agreement in
respect of the periods ending on or before September 30, 2005
may be delayed until March 31, 2006;
(iii)
the delivery of such financial
statements for the fiscal year ended December 31, 2005 may be
delayed until June 30, 2006;
(iv)
the delivery of the unaudited
consolidated quarterly financial statements of SIRVA, Inc. and
the Parent to be delivered under clauses (B) and (D) of
Section 5.1(a)(i) of the Receivables Sale Agreement in
respect of the period ending March 31, 2006 may be delayed
until July 31, 2006;
(v)
the Agent and the Purchasers hereby
waive any Termination Event arising from the failure to deliver
monthly financial reports of SIRVA Relo for August 2005 under
Section 5.2(a)(iii) of the Receivables Sale Agreement and
the late delivery on November 10, 2005 of the
