Exhibit 10.2
WAIVER AND FIRST AMENDMENT
TO
THIRD AMENDED AND RESTATED RECEIVABLES SALE
AGREEMENT
THIS WAIVER AND FIRST AMENDMENT TO THIRD
AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT (this “
Waiver and Amendment ”), dated as of February 5,
2008, is entered into among SIRVA RELOCATION CREDIT, LLC (the
“ Seller ”); SIRVA RELOCATION LLC (the “
Master Servicer ”); EXECUTIVE RELOCATION CORPORATION
and SIRVA GLOBAL RELOCATION, INC. (each, a “
Subservicer ”); LASALLE BANK NATIONAL ASSOCIATION,
GENERAL ELECTRIC CAPITAL CORPORATION, WELLS FARGO BANK, N.A. and
CITIZENS BANK (collectively, the “ Purchasers
”); and LASALLE BANK NATIONAL ASSOCIATION, as agent for the
Purchasers (in such capacity, the “ Agent
”). Capitalized terms used herein without definition
shall have the meanings ascribed thereto in the “Receivables
Sale Agreement” referred to below (as amended by this Waiver
and Amendment) or the “Purchase Agreement” referred to
below.
PRELIMINARY STATEMENTS
A.
Reference is made to that certain Third Amended and Restated
Receivables Sale Agreement, dated as of September 28, 2007,
among the Seller, the Master Servicer and the Subservicers, the
Agent and the other Purchasers from time to time party thereto (as
amended, modified or supplemented from time to time, the “
Receivables Sale Agreement ”).
B.
Reference is also made to that certain Second Amended and Restated
Purchase and Sale Agreement, dated as of December 22, 2006,
among the Master Servicer and the Subservicers, as Originators, and
the Seller (as amended, modified or supplemented from time to time,
the “ Purchase Agreement ”).
C.
The parties hereto have agreed to amend certain provisions of the
Receivables Sale Agreement upon the terms and conditions set forth
herein.
D.
The Agent and the Purchasers have agreed, subject to the terms and
conditions set forth herein, to waive, on a one-time basis, the
occurrence of certain “Termination Events” under the
Receivables Sale Agreement.
E.
The Agent and the other Purchasers, subject to the terms and
conditions set forth herein, have agreed to consent to the waiver
by the Seller, on a one-time basis, of certain provisions of the
Purchase Agreement.
SECTION 1. Amendments to
Receivables Sale Agreement . Subject to the satisfaction
of the conditions set forth in Section 5 below, the
parties hereto agree to amend the Receivables Sale Agreement as
follows:
(a)
to replace paragraph (e) of Section 1.3 of the
Receivables Sale
Agreement with the
following, (thereby making the current paragraph (e) the new
paragraph (f)):
(e) The Master
Servicer will pay to the Seller:
(A) a $100,000 fee
for each instance in which a deed to the residence
of a Relocating Employee is not held by the
Master Servicer or a title company in respect of a Final Equity
Payment or Mortgage Payment Advance within 30 days after the
Petition Date, in the case of any Final Equity Payment or Mortgage
Payment Advance outstanding on such date, or within 30 days after
the date of the Final Equity Payment or Mortgage Payment Advance,
with respect to any Final Equity Payment or Mortgage Payment
Advance made on or after the Petition Date (the “
Misplaced Deeds ”); provided , however ,
that no such fee shall be payable on account of Misplaced Deeds
which collectively comprise less than 3% of the total number of
deeds to the residences of Relocating Employees with respect to
which any Relocating Employee Receivables are outstanding on such
date of determination (but excluding any deeds to residences that
have already been sold and for which the Servicer has received the
proceeds of such sale);
(B) a $100,000 fee
for each instance in which a deed to the residence
of a Relocating Employee is neither
(i) marked in favor of the Seller nor (ii) left blank,
within 30 days after the Petition Date, in the case of any such
deed in existence on such date, or within 30 days after the
execution of such deed, in the case of any such deed executed on or
after the Petition Date (the “ Non-Conforming Deeds
”); provided , however , that no such fee shall
be payable on account of Non-Conforming Deeds which collectively
comprise less than 5% of the total number of deeds to the
residences of Relocating Employees with respect to which any
Relocating Employee Receivables are outstanding on such date of
determination (but excluding any deeds to residences that have
already been sold and for which the Servicer has received the
proceeds of such sale); and
(C) commencing
April 30, 2008, a fee equal to 5% of the total amounts due in
respect of Receivables that are not remitted to the Collection
Account in accordance with the proviso to the second sentence of
Section 1.8(a) hereof (the “ Misdirected
Funds ”); provided , however , that no fee
shall be payable on account of Misdirected Funds which collectively
comprise less than 5% of the total Collections (as reported in the
Monthly Report submitted by the Master Servicer) during any monthly
period of determination.
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The Agent will monitor
the Seller’s compliance with the requirements of this
Section 1.3(e) through the receipt of monthly reports
certified by an officer of the Master Servicer and delivered to the
Agent on or before each Monthly Reporting Date. The Seller
will pay to the Agent, for the ratable benefit of the Purchasers in
accordance with each Purchaser’s then outstanding Commitment,
a fee equal to the amount of all fees payable by the Master
Servicer to the Seller pursuant to this Section 1.3(e).
The Seller hereby authorizes the Agent to withdraw such fees from
the Collection Account or the Investment Account on the next
Business Day after any fee is payable by the Master Servicer to the
Seller pursuant to this Section 1.3(e).
(b)
the new Section 1.3(f) of the Receivables Sale Agreement
(formerly Section 1.3(e) thereof) is amended by
deleting the phrase “clauses (a), (b), (c) and
(d) above” and substituting therefore “clauses
(a), (b), (c), (d) and (e) above”;
(c)
to delete clause (ii) of the proviso of the last sentence in
Section 5.1(e) of the Receivables Sale Agreement and
substitute the following therefor:
(ii) thereafter, so long as no Termination
Event exists, the Agent shall not have more than four scheduled
sets of audit and test verifications done in any calendar year,
provided that the first scheduled audit and test verifications
shall be done during the month of April 2008, and provided
further that the Agent may request unscheduled audit or test
verifications at any time in its sole discretion.
(d)
to add the following as paragraph (k) of
Section 5.2 of the Receivables Sale Agreement :
(k)
Equity Advances . If the Seller has acquired an Equity
Advance with respect to a Relocating Employee and an Origination
Home under the Purchase Agreement, the Master Servicer will either
as the applicable Originator of such Equity Advance or as Master
Servicer, and so long as the original Equity Advance remains
outstanding, cause all other Equity Advances, Final Equity Payments
and Mortgage Payment Advances made to such Relocating Employee with
respect to such Origination Home, to the extent that they
constitute Eligible Receivables, to be sold to the Seller under the
Purchase Agreement.
(e)
to add the following as paragraph (k) of
Section 5.3 of the Receivables Sale Agreement :
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(k)
Equity Advances . If the Seller has acquired an Equity
Advance with respect to a Relocating Employee and an Origination
Home under the Purchase Agreement, each Subservicer will ensure,
either as the applicable Originator of such Equity Advance or as
Subservicer, that so long as the original Equity Advance remains
outstanding, all other Equity Advances, Final Equity Payments and
Mortgage Payment Advances made to such Relocating Employee with
respect to such Origination Home, to the extent that they
constitute Eligible Receivables, will be sold to the Seller under
the Purchase Agreement.
(f)
to add the following as Section 5.4 of the Receivables Sale
Agreement:
Information
Sharing .
During the course of the Chapter 11 Proceedings, the SIRVA Entities
will use their commercially reasonable efforts to cause the Agent
(for the benefit of the Purchasers) to be provided all material
written information that any SIRVA Entity has provided to the agent
or lenders under the SIRVA Credit Agreement, including, without
limitation, all material information relating to the Chapter 11
Proceedings and/or the Plan of Reorganization.
(g)
to add the following definition of “ Bankruptcy
Court” to Schedule I to the Receivables Sale Agreement in
the correct alphabetical order therefor:
“ Bankruptcy
Court ” means the United States Bankruptcy Court for the
Southern District of New York, or any other court having
jurisdiction over the Chapter 11 Proceedings from time to
time.
(h)
to add the following definition of “ Chapter 11
Proceedings” to Schedule I to the Receivables Sale
Agreement in the correct alphabetical order therefor:
“ Chapter 11
Proceedings” means the bankruptcy cases commenced by
SIRVA on the Petition Date, under Chapter 11 of Title 11 of the
United States Code, including any subsequent conversion of the same
to “Chapter 7” cases and/or the appointment of a
bankruptcy trustee.
(i)
to add the following definition of “ Court Order
” to Schedule I to the Receivables Sale Agreement in the
correct alphabetical order therefor:
“ Court
Order ” means the order entered by the Bankruptcy Court
on the Petition Date to, among other things, authorize the
Originators and the Servicers to continue performing
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their obligations under
the Agreement during the course of the Chapter 11
Proceedings.
(j)
to add the following definition of “ Petition
Date” to Schedule I to the Receivables Sale Agreement in
the correct alphabetical order therefor:
“ Petition Date ” means
February 5, 2008.
(k)
to add the following definition of “ SIRVA ” to
Schedule I to the Receivables Sale Agreement in the correct
alphabetical order therefor:
“ SIRVA ” means,
collectively, SIRVA, Inc. and those domestic subsidiaries of
SIRVA, Inc. that commenced the Chapter 11 Proceedings on the
Petition Date by filing voluntary petitions for relief under
chapter 11 of title 11 of the United States Code.
(l)
to delete “Section 9-105 and Section 9-106,
respectively” in paragraph (iv) to the definition of
“ Eligible Receivable ” in Schedule I to the
Receivables Sale Agreement and to substitute
“Section 9-102(a)” therefor.
(m)
to add the following definition of “ Plan of
Reorganization” to Schedule I to the Receivables Sale
Agreement in the correct alphabetical order therefor:
“ Plan of
Reorganization ” means the plan of reorganization, in
form and substance acceptable to the Agent and the Purchasers in
all respects, as filed in the Chapter 11 Proceedings on the
Petition Date.
(n)
to delete clause (ii) of the definition of “
Specified Documents” in Schedule I to the Receivables
Sale Agreement and substitute the following therefor:
(ii) in the case
of a Final Equity Payment or Mortgage Payment Advance, the original
Origination Home Deed (or to the extent of Permitted Exceptions a
copy thereof), which deed provides the basis for the transaction
giving rise to such Relocating Employee Receivable and shall:
(A) be executed by the applicable Relocating Employee (or by a
Servicer in its capacity as attorney-in-fact pursuant to a power of
attorney executed by the Relocating Employee); (B) be in
recordable form; and (C) either (i) name the Seller as
the owner of such Origination Home or (ii) leave the name of
the owner blank, and in the case where the deed names the Seller as
owner, an identical original deed in recordable form (or to the
extent of Permitted Exceptions a copy thereof), which deed is
executed by the Seller in blank or to the Origination Home
Buyer,
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(o)
to add the following to the end of the definition of “
Termination Date ” in Schedule I to the Receivables
Sale Agreement:
; provided ,
however , that if the Plan of Reorganization (as it may be
modified in accordance with the terms hereof) is not:
(i) confirmed by an order of the Bankruptcy Court, and
(ii) effective on or before April 30, 2008, the
Termination Date shall be April 30, 2008.
(p)
to delete the period at the end of paragraph (n) and
substitute a semicolon and the word “or” therefor, and
to add the following as paragraphs (o), (p), (q), (r), and
(s) to the definition of “ Termination
Event” in Schedule I to the Receivables Sale
Agreement:
(o) the Aggregate Class B Investment
and all unpaid fees and expenses of legal counsel and other
professionals retained by the Agent and the Purchasers are not
repaid in full in cash on the effective date of the Plan of
Reorganization; or
(p) the Co
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