Exhibit 99.1
WAIVER AND THIRD AMENDMENT
TO
AMENDED AND RESTATED RECEIVABLES
SALE AGREEMENT
This WAIVER AND THIRD AMENDMENT TO
AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT dated as of June
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 and May 31, 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 the date of the
Third Amendment, 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 the date of the Third Amendment to and
including September 30, 2005, 1.50% with respect to the Prime Rate
and 2.50% with respect to the Eurodollar Rate, and (iii) 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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(b)
New Definition
. The following new definition
is hereby added to Schedule I to the Receivables Sale
Agreement, in the correct alphabetical spot:
“ Third Amendment
” means the Waiver and Third Amendment to Amended and
Restated Receivable Sale Agreement, dated as of June 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 below, to be evidenced by restatements of SIRVA,
Inc.’s financial statements to be made available to the Agent
and the Purchasers no later than the fifth Business Day following
September 30, 2005:
(a)
restatements that have the following
effects on financial results from continuing operations:
(i)
pre-tax income from continuing
operations for 2002 will be reduced by approximately
$3,000,000;
(ii)
pre-tax income from continuing
operations for 2003 will be reduced by approximately $5,000,000;
and
(iii)
pre-tax income from continuing
operations for the first nine months of 2004 will be reduced by
approximately $17,000,000; and
(b)
pre-tax charges that relate to
current events or changes in estimates that will be recorded in
operating results for the quarter ended December 31, 2004, and are
summarized as follows:
(i)
$7,000,000 related to the
company’s decision to increase the loss reserves in its
insurance business;
(ii)
$3,000,000 of fees associated with
the expansion of the securitization facility for the
company’s relocation-related receivables;
(iii)
$2,000,000 write-off of a European
receivable related to a previous asset sale due to an obligor
bankruptcy;
(iv)
$2,000,000 for restructuring and
other charges related to the company’s European
operations;
2
(v)
$2,000,000 of corporate charges
related to certain severance agreements;
(vi)
$1,000,000 to impair certain
non-insurance assets within SIRVA, Inc.’s Network Services
segment that were divested in the first quarter of the 2005 fiscal
year of SIRVA, Inc.; and
(vii)
$1,000,000 of miscellaneous items
identified through SIRVA, Inc.’s year end review;
provided, however, that (x) except
with respect to clause (b)(ii) above, such adjustments result
primarily from SIRVA, Inc.’s insurance and European
operations, and not the operations of a SIRVA Entity, (y) 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 (z)
such adjustments do not have a Material Adverse Effect.
3.
Limited Consents and
Waivers .
(a)
Section 5.1(a)(i)(A) of the
Receivables Sale Agreement requires delivery of unqualified audited
consolidated financial statements of SIRVA, Inc. and its
consolidated subsidiaries (the “2004 Audit”) no later
than June 30, 2005. Subject to Section 4 of this
Amendment and subject to the representation and warranty in
Section 6(vi) of this Amendment being true and correct, the
Agent and the Purchasers agree that:
(i)
such financial statements for the
fiscal year 2004 may be delayed until September 30, 2005 (the
“ Delivery Date ”),
(ii)
the financial statements of SIRVA,
Inc., Parent and NAVL required to be delivered under clauses (B),
(C) and (D) of Section 5.1(a)(i) of the Receivables Sale Agreement
may be delayed until the Delivery Date; and
(iii)
the Agent and the Purchasers hereby
waive any Termination Event arising from the incorrectness of any
of the representations
