Exhibit 99.1
EXECUTION
COPY
WAIVER AND FIRST AMENDMENT TO
AMENDED AND RESTATED RECEIVABLES SALE
AGREEMENT
This WAIVER AND
FIRST AMENDMENT TO AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
dated as of March 31, 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 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 (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)
No Initial Lock-Box Agreements . Section 1.8(a) of the
Receivables Sale Agreement is hereby amended so that the second and
third sentences thereof read in their entirety as follows:
The Servicers have
given, or will give, written directions to each Included Employer
and each Origination Home Closing Agent, no later than
February 15, 2005 (or, if later, the date on which such Person
becomes an Included Employer or otherwise becomes obligated to
remit any amounts in respect of the Receivables), to remit all
amounts due in respect of the Receivables to the Collection
Account; provided
that if the Seller or a Servicer shall receive any Collections, it
shall remit such Collections to the Collection Account within three
Business Days of such receipt. Notwithstanding the foregoing,
prior to March 31, 2005, Collections relating to Receivables
originated by Executive Relo may be sent to the BofA Box/Account,
provided that (i) no checks received by BofA shall be deposited,
but shall instead be sent in the form received to the Agent for
deposit in the Collection Account, (ii) all amounts deposited
to
the BofA Box/Account by
wire transfer shall be remitted to the Agent by BofA no later than
the Business Day following BofA’s receipt thereof, and (iii)
prior to February 15, 2005, Executive Relo shall have instructed
all related Included Employers to send all Collections relating to
Receivables originated by Executive Relo to the Collection
Account.”.
The
second sentence of Section 3.2(a), the first sentence of Section
5.1(i) and the first sentence of Section 5.3(h) of the Receivables
Sale Agreement are each hereby amended and restated to read as
follows:
Subject to Section
1.8(a), the Servicers will give written directions to each Included
Employer and each Origination Home Closing Agent, no later than
February 15, 2005 (or, if later, the date on which such Person
becomes obligated to remit any amounts in respect of the
Receivables), to remit all amounts due in respect of the
Receivables to the Collection Account; provided that if the Seller or a
Servicer shall receive any Collections, it shall remit such
Collections to the Collection Account within three Business Days of
such receipt.
(b)
Additional Included Employers . Article 1 of the
Receivables Sale Agreement is hereby amended by adding thereto the
following Section 1.9:
Section 1.9. Additional
Included Employers and Eligible Relocation Services
Agreements. Schedule III to the Receivables Sale
Agreement may be amended from time to time at the request of the
Seller and the Originators with the consent of the Agent to add an
additional Employer and Relocation Services Agreement as an
Included Employer and an Eligible Relocation Services Agreement,
provided that (i)
the Agent has received a complete and correct copy of the related
Relocation Services Agreement (including, without limitation, all
exhibits, schedules, amendments and addenda thereto), (ii) the
related Relocation Services Agreement is in a form substantially
similar to one or more Relocation Services Agreements from which
Eligible Receivables have arisen prior to February 28, 2005 and
otherwise is in form and substance satisfactory to the Agent, (iii)
such additional Included Employer provides a written consent to the
assignments under the Transaction Documents in a form substantially
similar to the form of consent obtained from one or more Eligible
Employers prior to February 28, 2005 and otherwise in form and
substance satisfactory to the Agent prior to Schedule III being
amended to add such additional Included Employer, ( provided that in the case of
additional Included Employers added pursuant to Section 2(n) of the
First Amendment, such consents shall be provided no later than May
31, 2005) (iv) all necessary approvals and releases with respect to
the conveyance of the Receivables arising under such related
Relocation Services Agreement have been obtained and are in form
and substance satisfactory to the Agent, (v) such additional
Included Employer otherwise meets the criteria set forth in the
definition of “Eligible Employer”, (vi) such
related Relocation Services Agreement otherwise meets the
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criteria set forth in
the definition of “Eligible Relocation Services
Agreement”, and (vii) such additional Included Employer is
acceptable to the Agent.”
(c)
Collections . Section 1.8 of the Receivables Sale
Agreement is hereby amended by adding the following new clause (g)
at the end thereof:
“(g)
If at any time Servicer shall have notified the Agent that a
portion of the funds deposited into the Collection Account do not
constitute the Collections or other proceeds of the Receivables,
and shall have provided to the Agent such other information or
verification as the Agent shall request with respect thereto, the
Agent shall instruct LaSalle to remit the amount of such funds to
the Seller from collected funds then on deposit in the Collection
Account.”
(d)
Reporting . The following changes are hereby made with
respect to reporting:
(i)
Section 5.2 of the Receivables Sale Agreement is hereby amended by
deleting the word “and” at the end of Section
5.2(a)(ii), by renumbering Section 5.2(a)(iii) as Section
5.2(a)(iv) and adding the following new clause above Section
5.2(a)(iv):
“(iii)
Monthly
Reports. As soon as available, but in any event
not later than the 30 th day following the end of each
of the monthly periods of each fiscal year of the Master Servicer,
the unaudited consolidated balance sheet of the Master Servicer and
its consolidated Subsidiaries as at the end of such month and the
related unaudited consolidated statements of income and of cash
flows of the Master Servicer and its consolidated Subsidiaries for
such month and the portion of the fiscal year through the end of
such month, setting forth in each case in comparative form the
figures for the corresponding period of the previous fiscal year,
certified by a Designated Financial Officer of the Master Servicer
as being (A) fairly stated in all material respects,
(B) complete and correct in all material respects in
conformity with GAAP, and (C) prepared in reasonable detail in
accordance with GAAP applied consistently throughout the periods
reflected therein and with prior periods (subject to normal year
end audit and other adjustments); and”.
(ii)
Section 5.3 of the Receivables Sale Agreement is hereby amended by
deleting the word “and” at the end of Section
5.3(a)(ii), by renumbering
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Section 5.3(a)(iii) as
Section 5.3(a)(v) and inserting before such clause the following
new clauses above Section 5.3(a)(v):
“(iii)
Monthly
Reports. As soon as available, but in any event
not later than the 30 th day following the end of each
of the monthly periods of each fiscal year of the Subservicer, the
unaudited consolidated balance sheet of the Subservicer and its
consolidated Subsidiaries as at the end of such month and the
related unaudited consolidated statements of income and of cash
flows of the Subservicer and its consolidated Subsidiaries for such
month and the portion of the fiscal year through the end of such
month, setting forth in each case in comparative form the figures
for the corresponding period of the previous fiscal year, certified
by a Designated Financial Officer of the Subservicer as being
(A) fairly stated in all material respects, (B) complete
and correct in all material respects in conformity with GAAP, and
(C) prepared in reasonable detail in accordance with GAAP
applied consistently throughout the periods reflected therein and
with prior periods (subject to normal year end audit and other
adjustments);
“(iv)
Historical Financial
Statements. No later than the fifth Business Day
after the 180th day following the end of the 2004 fiscal year of
SIRVA, Inc., (A) the audited financial statements of the
Subservicer for the year ended December 31, 2003 and (B) the
unaudited financial statements of the Subservicer for nine month
periods ended September 30, 2003 and September 31, 2004;
and”.
(iii)
Sections 5.2 and 5.3 of the Receivables Sale Agreement are hereby
further amended by deleting the word “or” at the end of
clause (b)(v) thereof, by renumbering clause (b)(vi) thereof as
clause (b)(vii) thereof and inserting the following new clause
(b)(vi):
“(vi)
Allegations of
Misconduct . The allegation by a Governmental
Authority or Responsible Person that (other than as disclosed by
the Servicers to the Purchasers in the supplement to the Fee Letter
delivered in connection with the First Amendment) the adjustments
described in the definition of Specified Adjustment result from
fraud, misconduct or similar circumstances; or”.
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(e)
Deletion of Aged Receivables Ratio . Schedule I to the
Receivables Sale Agreement is hereby amended by deleting therefrom
the definition of “Aged Receivables Ratio”.
(f)
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 and including December 31, 2005, 1.25% with
respect to the Prime Rate and 2.25% with respect to the Eurodollar
Rate, and (ii) 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 (i) above.
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Consolidated Leverage
Ratio
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Prime
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Eurodollar Rate
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Greater than or equal to 2.75
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1.25%
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2.25%
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greater than or equal to 1.75 and less than
2.75
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1.00%
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2.00%
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less than 1.75
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0.75%
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1.75%
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(g)
Definition of Defaulted Receivable . The definition of
“Defaulted Receivable” in Schedule I to the Receivables
Sale Agreement is hereby amended and restated to read as
follows:
“ Defaulted Receivable” means
any Receivable (a) as to which the Disqualification Date has
occurred, (b) any Obligor of which has ceased to be an Eligible
Employer, provided that this clause (b) shall not apply to
Employers to the extent (and only to the extent) they cease to be
Eligible Employers as a result of being listed on Schedule I
to the First Amendment, or (c) is a Charge-Off.
(h)
Inclusion of SIRVA Relo Miscellaneous Receivables .
Schedule I to the Receivables Sale Agreement is hereby amended by
deleting the parenthetical phrase “(with respect to
Receivables originated by Executive Relo)” from clause (vi)
of the definition of “Eligible Receivables,” and by
deleting the phrase “originated by Executive Relo” from
the definition of “Miscellaneous Receivable”.
(i)
Additional Eligibility Criteria . The definition of
“Eligible Receivables” in Schedule I to the Receivables
Sale Agreement is hereby amended by deleting the word
“and” at the end of clause (xiv) thereof, replacing the
period at the end of clause (xv) with “;” adding the
following new clauses:
“(xvi) with
respect to any Unbilled Miscellaneous Receivable, such Receivable
has been originated by Executive Relo and is owed by an Obligor
that was included in Schedule III as such Schedule was
in
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effect on December 23,
2004; provided, however, that no Unbilled Miscellaneous Receivable
may be an Eligible Receivable after May 30, 2005 unless the
Reconciliation Conditions shall have been satisfied on or prior to
May 31, 2005 and shall continue to be satisfied;
and
(xvii) with respect to
a Receivable related to any Included Employer, such Receivable is
of a type shown to be a permitted Eligible Receivable opposite the
name of such Employer in Schedule III
hereto.”
In addition, clause
(viii) of such definition of “Eligible Receivable” is
amended by renumbering clause (D) thereof to be clause (E) and
inserting the following new clause (D):
“(D)
in the case of such Eligible Relocation Services Agreement, is
completely and accurately described in Schedule III ,”.
(j)
Permitted Exceptions . The definition of
“Permitted Exceptions” in Schedule I to the Receivables
Sale Agreement is hereby amended by amending and restating clause
(iv)(B) thereof to read as follows:
“(B)
if applicable, the Originators are in compliance with their
obligations under Sections 5.4 and 5.5 of the Purchase Agreement
with respect thereto.”
(k)
Reserve . The definition of “Reserve” in
Schedule I to the Receivables Sale Agreement is hereby amended and
restated to read as follows:
“ Reserve ” means, at any time,
20% of the Aggregate Investment; provided that if the
Reconciliation Conditions are satisfied, “ Reserve ” shall mean 15% of
the Aggregate Investment.
(l)
Defa
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