Exhibit 10.2


 


WAIVER AND FIFTH AMENDMENT TO


AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT


 


This WAIVER AND FIFTH AMENDMENT TO AMENDED AND
RESTATED RECEIVABLES SALE AGREEMENT dated as of November 14, 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, June 30,
2005 and September 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, September 30, 2005 and March 31, 2006 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.


 


	
  CONSOLIDATED LEVERAGE RATIO

  	
   

  	
  PRIME RATE

  	
   

  	
  EURODOLLAR RATE

  	
   

  
	
  Greater than
  or equal to 3.25

  	
   

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  
	
  Greater than
  or equal to 2.75 and less than 3.25

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  
	
  Greater than
  or equal to 1.75 and less than 2.75

  	
   

  	
  1.00

  	
  %

  	
  2.00

  	
  %

  
	
  Less than
  1.75

  	
   

  	
  0.75

  	
  %

  	
  1.75

  	
  %

  



 


(b)                                 New
Definition.  The following new
definition is hereby added to Schedule I to the Receivables Sale
Agreement, in the correct alphabetical spot:


 


                                                “Fifth Amendment” means the Waiver and Fifth Amendment to
Amended and Restated Receivable Sale Agreement, dated as of November 14,
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 30, 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 and Section 3(a) of the Fourth Amendment, require
delivery no later than November 15, 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 delivery no later than December 31, 2005 of unaudited consolidated
quarterly financial statements for SIRVA, Inc. and the Parent for the
periods ended March 31, 2005, June 30, 2005 and September 30,
2005.  Subject to 


 


2





















 


Section 4 of this 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 30, 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 in respect of the periods ending on or before September 30,
2005 may be delayed until March 31, 2006;


 


(iii)                               the
delivery of such financial statements for the fiscal year ended December 31,
2005 may be delayed until June 30, 2006;


 


(iv)                              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 the period ending March 31,
2006 may be delayed until July 31, 2006;


 


(v)                                 the
Agent and the Purchasers hereby waive any Termination Event arising from the
failure to deliver monthly financial reports of SIRVA Relo for August 2005
under Section 5.2(a)(iii) of the Receivables Sale Agreement and the
late delivery on November 10, 2005 of the monthly financial reports of
SIRVA Relo for September 2005 under Section 5.2(a)(iii) of the
Receivables Sale Agreement; and


 


(vi)                              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 heretofore
delivered to the Agent and the Purchasers, to the extent that any such
incorrectness of a representation and warranty relates to the Specified Adjustments.


 


(b)                                 The
Agent and the Purchasers hereby consent to the execution and delivery of an
amendment to the SIRVA Credit Agreement in the form attached hereto as Exhibit A
(the “Credit Agreement Amendment”), provided
that (i) no compensation shall be paid by the SIRVA Entities in connection
with such amendment except as described in such Credit Agreement Amendment, and
(ii) such amendment became effective on or prior to November 14,
2005.


 


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 (i) a delay in
the release of the 2004 Audit, (ii) anticipated adjustments to prior
financial statements as a result of the review by its audit committee of SIRVA, Inc.’s
financial reporting practices and related processes, and (iii) 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 the 2004 Audit
and certain other financial reports and ongoing discussions 


 


3





















 


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) hereof,
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 waived pursuant to Section 3(a)(vi) hereof.


 


5.                                       Representations
and Warranties.  With respect to the
Sale Agreement, the Seller and each Servicer, and with respect to the Purchase
Agreement, the Originators hereby represent and warrant to the Agent and the
Purchasers as follows:


 


(i)                                     Representations
and Warranties.  The representations
and warranties contained in Article IV of the Receivables Sale Agreement
and Section 4 of the Purchase Agreement are true and correct as of the
date hereof (except to the extent such representations and warranties relate
solely to an earlier date, in which case they are true and correct as of such
earlier date and except for the matters to be corrected by the Specified
Adjustments).


 


(ii)                                  Enforceability.  The execution and delivery by the Seller and
each Servicer of this Amendment, and the performance by the Seller and each
Servicer of this Amendment and the Receivables Sale Agreement, as amended
hereby (the “Amended Agreement”), are within the corporate powers of the
Seller and each Servicer and have been duly authorized by all necessary
corporate or company action on the part of the Seller and each Servicer.  This Amendment and the Amended Agreement are
valid and legally binding obligations of the Seller and each Servicer, enforceable
in accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally or by equitable principles relating to
enforceability.


 


(iii)                               No
Potential Termination Event.  No
Potential Termination Event that will not be cured by this Amendment becoming
effective has occurred and is continuing.


 


(iv)                              Specified
Adjustments.  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, the adjustments
described in the definition of “Specified Adjustment”
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 the matters disclosed in the Press Releases and related matters will not
have a Material Adverse Effect.


 


6.                                       Acknowledgment
by Originators.  Each of SIRVA Relo
and Executive Relo, in its capacity as an Originator, acknowledges and agrees
to the terms of this Amendment, including without limitation Section 2
hereof.


 


7.                                       Effect
of Amendment.  Except as expressly
amended and modified by this Amendment, all provisions of the Receivables Sale
Agreement shall remain in full force and effect; and the Seller and the
Servicers confirm and reaffirm their obligations under the Amended 


 


4





















 


Agreement and the
other Transaction Documents.  Without
limiting the foregoing, the Seller and the Originators confirm and reaffirm
their obligation under Section 3 of the Fee Letter, and acknowledge that
nothing in this Amendment shall limit the ability of the Agent and the
Purchasers to require changes to the terms of the Transaction Documents as
contemplated by such Section 3. 
After this Amendment becomes effective, all references in the
Receivables Sale Agreement (or in any other Transaction Document) to “this
Agreement”, “hereof”, “herein” or otherwise referring to the Receivables Sale
Agreement shall be deemed to be references to the Amended Agreement.  This Amendment shall not be deemed to
expressly or impliedly waive, amend or supplement any provision of the
Receivables Sale Agreement other than as set forth herein.


 


8.                                       Effectiveness.  This Amendment shall become effective upon
the date on which all of the following occur (the “Amendment Effective Date”):


 


(i)                                     receipt
by the Agent of counterparts of this Amendment (whether by facsimile or
otherwise) executed by the Seller, the Servicers, the Originators, the Agent
and the Purchasers and consented to by Parent and NAVL,


 


(ii)                                  receipt
by the Agent of a fee equal to 0.15% of the Aggregate Commitment for the
account of the Purchasers (proportionately according to their Commitment
Percentages),


 


(iii)                               receipt
by the Agent of the following documents, each, in form and substance
satisfactory to the Agent and the Purchasers, from JPMorgan Chase Bank, N.A.,
as Administrative Agent under the Credit Agreement, a copy of the fully
executed Credit Agreement Amendment.


 


9.                                       Headings;
Counterparts.  Section Headings
in this Amendment are for reference only and shall not affect the construction
of this Amendment.  This Amendment may be
executed by different parties on any number of counterparts, each of which
shall constitute an original and all of which, taken together, shall constitute
one and the same agreement.


 


10.                                 Cumulative
Rights and Severability.  All rights
and remedies of the Purchasers and Agent hereunder shall be cumulative and
non-exclusive of any rights or remedies such Persons have under law or
otherwise.  Any provision hereof that is
prohibited or unenforceable in any jurisdiction shall, in such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof and without affecting such
provision in any other jurisdiction.


 


11.                                 Governing
Law.  This Amendment shall be
governed by, and construed in accordance with, the internal laws (and not the
law of conflicts) of the State of Illinois.


 


[signature pages begin on next page]


 


5





















 


IN WITNESS WHEREOF, the parties have executed
this Amendment as of the date first above written.


 


	
   

  	
  SIRVA RELOCATION CREDIT, LLC, as Seller

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Douglas V. Gathany

  
	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SIRVA RELOCATION LLC, as a Servicer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Douglas V. Gathany

  
	
   

  	
  Title: Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE RELOCATION CORPORATION, as

  a Servicer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Douglas V. Gathany

  
	
   

  	
  Title: Treasurer

  



 


 


The undersigned (i) consent and agree to the foregoing Amendment, (ii) confirm
that references in the Purchase Agreement to the Receivables Sale Agreement
shall be references to such agreement as amended by the Amendment, and (iii) confirm
that the Purchase Agreement is in full force and effect.


 


	
  SIRVA RELOCATION LLC, as an Originator

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Douglas V. Gathany

  	
   

  
	
  Title: Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTIVE RELOCATION CORPORATION,

  as an Originator

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Douglas V. Gathany

  	
   

  
	
  Title: Treasurer

  	
   

  



 


S-1





















 


	
   

  	
  LASALLE BANK NATIONAL ASSOCIATION,

  as Purchaser and Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marlee Zweigbaum

  
	
   

  	
  Title:

  	
  Vice President

  
				



 


S-2





















 


	
   

  	
  GENERAL ELECTRIC CAPITAL 

  CORPORATION, as Purchaser

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dwayne Coker

  
	
   

  	
  Title:

  	
  Duly Authorized Signatory

  
				



 


S-3





















 


	
   

  	
  THE CIT GROUP/BUSINESS

  CREDIT, INC., as Purchaser

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carl Giordano

  
	
   

  	
  Title:

  	
  Assistant Vice President

  
				



 


 


S-4





















 


ACKNOWLEDGEMENT AND CONSENT


 


Reference is made to the Amended and Restated
Guaranty dated as of December 23, 2004, executed by the undersigned
in favor of SIRVA Relocation Credit, LLC (the “Guaranty”).  The undersigned (i) consent and agree to
the foregoing Amendment, (ii) confirm that references in the Guaranty to
the Receivables Sale Agreement shall be references to such agreement as amended
by the Amendment, and (iii) confirm that the Guaranty is in full force and
effect.


 


IN WITNESS WHEREOF, the undersigned have
executed this Acknowledgement and consent as of the date first above written.


 


	
   

  	
  SIRVA WORLDWIDE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Douglas V. Gathany

  
	
   

  	
  Title: Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NORTH AMERICAN VAN LINES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Douglas V. Gathany

  
	
   

  	
  Title: Treasurer