Exhibit 99.2
WAIVER AND FOURTH AMENDMENT
TO
AMENDED AND RESTATED RECEIVABLES
SALE AGREEMENT
This WAIVER AND FOURTH AMENDMENT TO
AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT dated as of
September 30, 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 and
June 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 and September 30, 2005
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.
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CONSOLIDATED LEVERAGE RATIO
|
|
PRIME RATE
|
|
EURODOLLAR RATE
|
|
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Greater than or equal to 3.25
|
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1.50
|
%
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2.50
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%
|
|
Greater than or equal to 2.75 and less than
3.25
|
|
1.25
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%
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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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%
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2.00
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%
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Less than 1.75
|
|
0.75
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%
|
1.75
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%
|
(b)
New Definition
. The following new definition
is hereby added to Schedule I to the Receivables Sale
Agreement, in the correct alphabetical spot:
“ Fourth Amendment
” means the Waiver and Fourth Amendment to Amended and
Restated Receivable Sale Agreement, dated as of September 30,
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 15, 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, require delivery
no later than September 30, 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 unaudited consolidated
quarterly financial statements for SIRVA, Inc. and the Parent
for the periods ended March 31, 2005 and June 30,
2005. Subject to Section 4 of this
2
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 15, 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 may
be delayed until December 31, 2005; and
(iii)
the Agent and the Purchasers hereby
waive any Termination Event arising from the incorrectness of any
of the representations and warranties made by the Seller, the
Guarantors, the Originators, and the Servicers pursuant to any
Transaction Document or in any certificate delivered pursuant to
any Transaction Document with respect to any balance sheets,
statements of income and cash flow, and any other financial
information of SIRVA, Inc. or the Parent heret
