Exhibit
10.1
WAIVER AND TENTH AMENDMENT TO
AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
This WAIVER AND TENTH AMENDMENT TO
AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT dated as of October
12, 2006 (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, the Purchasers party thereto and LASALLE BANK
NATIONAL ASSOCIATION, 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, September 30, 2005, November 14, 2005,
December 9, 2005, March 27, 2006, August 15, 2006 and August 16,
2006 (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 .
(a)
The Receivables Sale Agreement is hereby amended so that the
definition of “Reserve” in Schedule I thereto is
amended to read in its entirety as follows:
““ Reserve
” means the sum of the Purchaser Reserves.”
(b)
The Receivables Sale Agreement is hereby amended by adding the
following new definition to Schedule I thereto, in the
applicable alphabetical position:
““ Tenth
Amendment ” means the Waiver and Tenth Amendment to
Amended and Restated Receivables Sale Agreement, dated as of
October 12, 2006, among the Seller, the Servicers, the Originators,
the Agent and the Purchasers.”
3.
Limited Consents and Waivers . 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, Section 3(a) of the Fifth Amendment, Section 4(a) of the
Seventh Amendment and Section 3(a) of the Eighth Amendment, require
delivery of unqualified audited consolidated financial statements
of SIRVA, Inc. and the Parent for each fiscal year and delivery of
unaudited consolidated quarterly financial statements for SIRVA,
Inc. and the Parent, in each case by specified dates. Subject to
Section 4 of this Amendment and subject to the
representation
and warranty in Section 5(iv)
of this Amendment being true and correct, the Agent and the
Purchasers agree that:
(a)
the delivery of such financial statements for the fiscal year ended
December 31, 2005 may be delayed until January 31, 2007; and the
delivery of such financial statements for the fiscal year ended
December 31, 2006 may be delayed until June 30, 2007;
and
(b)
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 each fiscal quarter described below may be
delayed until the date set opposite such quarter:
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Fiscal Quarter
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Delivery Date
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first and second quarter, 2006
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December 31, 2006
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third quarter, 2006
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January 31, 2007.
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4.
Reservation of Rights . By press releases dated
January 31, 2005, March 15, 2005, June 20, 2005, June 22,
2005 and September 21, 2005, SIRVA, Inc. announced various matters,
including the existence of a formal investigation by the SEC
of such practices and processes. Notwithstanding the agreement of
the Agent and the Purchasers to a delay in the delivery of certain
financial reports and ongoing discussions between the Agent, the
Purchasers and the Originators with respect to the matters
described in the Press Releases, the Agent and the Purchasers have
not waived any rights or remedies they may have with respect to the
matters, except as set forth in Section 3(a)(vi) of the Fifth
Amendment, that are the subject of such review and investigation or
any related matters. The Agent and the Purchasers hereby expressly
reserve all of their rights and remedies with respect to all of the
foregoing, including all rights with respect to any related
Termination Event that may have occurred and not been w
