Exhibit 10.1


 


 


SIRVA WORLDWIDE, INC.,


 


THE FOREIGN SUBSIDIARY BORROWERS PARTIES
HERETO,


 


THE SEVERAL LENDERS

FROM TIME TO TIME PARTIES HERETO,


 


JPMORGAN CHASE BANK, N.A.

as administrative agent


 


 


and


 


 


J.P. MORGAN
SECURITIES INC.


as sole lead
arranger and sole bookrunner


 


 


TENTH AMENDMENT TO THE CREDIT
AGREEMENT


 


January 1, 2008


 


 

















 


TENTH AMENDMENT, dated as of January 1,
2008 (this “Tenth Amendment”), to the Credit Agreement, dated as of December 1,
2003 (as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among SIRVA WORLDWIDE, INC., a Delaware corporation (the “Parent
Borrower”), the Foreign Subsidiary Borrowers from time to time parties to
the Credit Agreement (together with the Parent Borrower, the “Borrowers”),
the several banks and other financial institutions from time to time parties to
the Credit Agreement (the “Lenders”), JPMORGAN CHASE BANK, N.A.
(formerly known as JPMorgan Chase Bank), as administrative agent for the
Lenders (in such capacity, the “Administrative Agent”), and the other
Agents parties thereto.


 


W  I  T
N  E  S  S  E  T  H:


 


WHEREAS, the Borrowers, the Lenders and the
Administrative Agent are parties to the Credit Agreement; and


 


WHEREAS, the Parent Borrower has requested
that the Administrative Agent and the Lenders agree to amend and waive certain
provisions of the Credit Agreement and the Guarantee and Collateral Agreement
(as defined in the Credit Agreement) as set forth herein;


 


NOW THEREFORE, in consideration of the
premises and the mutual covenants hereinafter set forth, the parties hereto
hereby agree as follows:


 


1.     Defined Terms. 
Unless otherwise defined herein, capitalized terms that are defined in
the Credit Agreement are used herein as therein defined.


 


2.     Amendments to Subsection 1.1 (Defined Terms).  Subsection 1.1 of the Credit Agreement is
hereby amended by inserting, in proper alphabetical order, the following new
defined terms and related definitions:


 


“Restructuring Financing”: 
any financing obtained by Holding or any of its Subsidiaries as part of
a restructuring involving the Lenders.


 


“2008 Reimbursement Obligations”:  Reimbursement Obligations in respect of any
Letters of Credit issued, extended or renewed on or after January 2, 2008.


 


“2008 Revolving Credit Loans”: 
Revolving Credit Loans made on or after January 2, 2008 that result
in an aggregate principal amount of outstanding Revolving Credit Loans in
excess of $107,000,000.


 


“2008 Swing Line Loans”: 
Swing Line Loans made on or after January 2, 2008.


 


3.     Amendment to Subsection 2.2 (Procedure for Revolving Credit
Borrowing).  Clause (c) of the
first sentence of subsection 2.2 of the Credit Agreement is hereby amended by
deleting the words “ or (c) 12:30 P.M., New York City time, at least
one Business Day prior to the requested Borrowing Date, otherwise” and
substituting in lieu thereof the following:


 


 

















 


(c) 10:00 A.M., New York City time, on the
requested Borrowing Date if the requested Revolving Credit Loans are to be
initially ABR Loans that are made on January 10, 2008 or January 11,
2008 or (d) 12:30 P.M., New York City time, at least one Business Day
prior to the requested Borrowing Date, otherwise


 


4.     Amendment to Subsection 4.4 (Optional and Mandatory
Prepayments and Commitment Reductions). 
The fourth sentence of subsection 4.4(a) of the Credit Agreement is
hereby amended by deleting clause (ii) therefrom and substituting the
following in lieu thereof:


 


(ii)  the Revolving Credit Loans and the Reimbursement Obligations
pursuant to this subsection shall be applied, first, to payment of
the 2008 Swing Line Loans then outstanding, second, to payment of the
2008 Revolving Credit Loans then outstanding, third, to payment of the
2008 Reimbursement Obligations then outstanding, fourth, to payment of
the other Swing Line Loans then outstanding, fifth, to payment of the
other Revolving Credit Loans then outstanding, sixth, to payment of any
other Reimbursement Obligations then outstanding and, last, to cash
collateralize any outstanding L/C Obligation on terms reasonably satisfactory
to the Administrative Agent.  Each
Borrower shall use its reasonable best efforts, subject to any judicial or
other approval as may be required and notwithstanding anything to the contrary
herein or in any other Loan Document, to prepay the 2008 Revolving Credit
Loans, 2008 Swing Line Loans and 2008 Reimbursement Obligations with the
initial proceeds of any Restructuring Financing, and, for purposes of this
Agreement (including subsection 11.7(a)), such payment shall be allocated to
the Revolving Credit Lenders holding 2008 Revolving Credit Loans, 2008 Swing
Line Loans and 2008 Reimbursement Obligations
pro rata according to the respective outstanding principal (or drawn)
amounts thereof then held by such Lenders.


 


5.     Amendment to Subsection 4.8 (Pro Rata Treatment and Payments).  The second sentence of subsection 4.8(a) of
the Credit Agreement is hereby amended in its entirety to read as follows:


 


Subject to subsection 4.8(c), each payment (including each
prepayment) by any of the Borrowers on account of principal of and interest on
any Revolving Credit Loans shall be allocated by the Administrative Agent, first
to the 2008 Revolving Credit Loans and, second, to the other Revolving
Credit Loans, in each case pro rata
according to the respective outstanding principal amounts of such 2008
Revolving Credit Loans or other Revolving Credit Loans, as the case may be,
then held by the Revolving Credit Lenders.


 


6.     Amendment to Section 8 (Negative Covenants).  Section 8 of the Credit Agreement is
hereby amended by inserting the following subsection 8.20 at the end thereof:


 


8.20         Mandatory
Prepayment Events.  Enter into any
transaction that could reasonably be expected to give rise to a mandatory
prepayment under subsection 4.4(c), provided that nothing herein shall
be deemed to restrict the Parent Borrower’s ability to reinvest Net Cash
Proceeds in accordance with subsection 4.4(c).


 


 


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7.     Amendment to Subsection 6.5 of the Guarantee and Collateral
Agreement (Application of Proceeds). 
Subsection 6.5 of the Guarantee and Collateral Agreement is hereby
amended in its entirety to read as follows:


 


6.5           Application of
Proceeds.  It is agreed that if an
Event of Default shall occur and be continuing, any and all Proceeds of the
relevant Granting Party’s Security Collateral received by the Administrative
Agent (whether from the relevant Granting Party or otherwise and including any
payments from any Granting Party in reduction of the Obligations) shall be held
by the Administrative Agent for the benefit of the Secured Parties as
collateral security for the Obligations of the relevant Granting Party (whether
matured or unmatured), and/or then or at any time thereafter may, in the sole
discretion of the Administrative Agent, be applied by the Administrative Agent
against the Obligations of the relevant Granting Party then due and owing in
the following order of priority:


 


FIRST, to the payment of all reasonable costs and expenses incurred by
the Administrative Agent in connection with this Agreement, the Credit
Agreement, any other Loan Document or any of the Obligations of the relevant
Granting Party, including, without limitation, all court costs and the
reasonable fees and expenses of its agents and legal counsel, and any other
reasonable costs or expenses incurred in connection with the exercise by the
Administrative Agent of any right or remedy under this Agreement, the Credit
Agreement, or any other Loan Document; provided, however, that,
if the relevant Granting party is a Foreign Subsidiary, such Proceeds shall be
applied only to the payment of all reasonable costs and expenses incurred by
the Administrative Agent in connection with the Obligations of such Granting
Party;


 


SECOND, to the payment of that portion of the Obligations of the
relevant Granting Party constituting accrued and unpaid interest (including
interest accruing after the maturity of the Loans and Reimbursement Obligations
and interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
Holding, any Borrower or any Guarantor, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) on the 2008 Revolving
Credit Loans, 2008 Swing Line Loans and 2008 Reimbursement Obligations, ratably
among the Lenders in proportion to the respective amounts described in this
clause SECOND payable to them; provided, however, that, if the
relevant Granting Party is a Foreign Subsidiary, such Proceeds shall be applied
only to the payment of such Obligations of such Granting Party;


 


THIRD, to the payment of that portion of the Obligations of the
relevant Granting Party constituting unpaid principal on the 2008 Revolving
Credit Loans, 2008 Swing Line Loans and 2008 Reimbursement Obligations, ratably
among the Lenders in proportion to the respective amounts described in this
clause THIRD payable to them; provided, however, that, if the
relevant Granting Party is a Foreign Subsidiary, such Proceeds shall be applied
only to the payment of such Obligations of such Granting Party;


 


 


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FOURTH, to the ratable satisfaction of all other Obligations of the
relevant Granting Party; provided, however, that, if the relevant
Granting Party is a Foreign Subsidiary, such Proceeds shall be applied only to
the payment of such  Obligations of such
Granting Party; and


 


FIFTH, after all of the Obligations have been paid in full, to the
relevant Granting Party or its successors or assigns, or to whomsoever may be
lawfully entitled to receive the same.


 


8.     Waivers.


 


(a)           The
Lenders hereby waive any Default or Event of Default arising solely by reason
of (i) the failure of the Parent Borrower to comply with subsection 4.1(d) (Interest
Rates and Payment Dates) of the Credit Agreement with respect to the payment on
January 10, 2008 of the interest payment scheduled for January 4,
2008, and (ii) the representations and warranties of the Parent Borrower
set forth in subsections 5.7, 6.2(a) and 6.2(b) (in each case, with
respect to the absence of any Default or Event of Default arising from
compliance with subsection 4.1(d) of the Credit Agreement with respect to
such interest payment) of the Credit Agreement being inaccurate in all material
respects on, or as of, each date made or deemed made; provided that the
foregoing waiver shall not extend the scheduled date of such interest payment
or waive any default interest on any such overdue amount that is payable
pursuant to subsection 4.1(c) of the Credit Agreement.


 


(b)           The
Lenders hereby waive any condition to Extensions of Credit set forth in
subsection 6.2 of the Credit Agreement based on the truthfulness of the
representations and warranties by Holding and the Loan Parties that are set forth
in subsection 5.2 of the Credit Agreement.


 


9.     Conditions to Effectiveness of this Tenth Amendment.  This Tenth Amendment shall become effective
upon the date (the “Tenth Amendment Effective Date”) when the following
conditions are satisfied:


 


(a)           the
Administrative Agent shall have received (i) counterparts of this Tenth
Amendment, duly executed and delivered by the Borrowers and Administrative
Agent, (ii) executed Lender Addenda, or facsimile transmissions thereof,
substantially in the form of Exhibit A hereto, from the requisite Lenders
under subsections 11.1(a) and 11.1(e) of the Credit Agreement, (iii) an
executed Acknowledgment and Confirmation, substantially in the form of Exhibit B
hereto, from an authorized officer of each of Holding and each Guarantor, and (iv) all
expenses required to be paid on or before the Tenth Amendment Effective Date
for which invoices have been presented; and


 


(b)           the
Parent Borrower shall have paid to the Administrative Agent, on behalf of each
Lender which shall have executed and delivered a Lender Addendum to counsel to
the Administrative Agent by 5:00 P.M. (New York City time) on January 9,
2008, an amendment fee, which fee shall be payable in kind as set forth below
and shall be fully earned on the Tenth Amendment Effective Date, in an amount
equal to 2% of the sum of each such Lender’s Extensions of Credit (other than
2008 Revolving Credit Loans, 2008 Swing Line Loans and 


 


 


4

















 


2008 Reimbursement Obligations) then outstanding.  Such fee shall automatically be deemed to
increase the outstanding principal amount of the Revolving Credit Loans (in the
case of the portion of the fee payable in respect of Extensions of Credit
outstanding under the Revolving Credit Facility) and the Term Loans (in the
case of the portion of the fee payable in respect of Term Loans outstanding
under the Term Loan Facility) and shall itself bear interest as if it were a
Loan; provided that (i) no portion of such increase shall be deemed
to be a 2008 Revolving Credit Loan, (ii) for purposes of calculating “2008
Revolving Credit Loans” and “Consolidated Cash Interest Expense” pursuant to
subsection 1.1 of the Credit Agreement, the amount of such increase shall be
deemed to be zero and (iii) such increase shall not be deemed to utilize
the Revolving Credit Commitments.  Such
deemed principal amount of the Revolving Credit Loans shall be repaid in full
on the Termination Date, and such deemed principal amount of the Term Loans
shall be repaid in full on the Final Maturity Date (or, in each case, if
sooner, on the date of payment or prepayment of such Loans in full (and, in the
case of the Revolving Credit Loans, termination of the Revolving Credit
Commitments) or any date on which the Loans may become due by acceleration).


 


10.   Representations and Warranties;
Acknowledgements.


 


(a)         No Default.  No
Default or Event of Default shall have occurred and be continuing on the Tenth
Amendment Effective Date after giving effect to the transactions contemplated
herein, including the making of 2008 Revolving Credit Loans and 2008 Swing Line
Loans and the utilization of the proceeds thereof.


 


(b)        Representations and Warranties.  Each of the representations and warranties
made by Holding, each Borrower and each Guarantor in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as of the
Tenth Amendment Effective Date (after giving effect hereto) as if made on and
as of such date, except to the extent such representations and warranties
expressly relate to a particular date, in which case such representations and
warranties were true and correct in all material respects as of such date, and
except for the representations and warranties set forth in subsection 5.2 of
the Credit Agreement.


 


(c)         Acknowledgements. 
Holding and each Loan Party acknowledge that (a) the funding of
2008 Revolving Credit Loans and 2008 Swing Line Loans and the issuance,
extension or renewal of Letters Of Credit after the Tenth Amendment Effective
Date are critical to (i) the ongoing operating ability of Holding and the
Loan Parties and (ii) effectuate a feasible restructuring of their
respective businesses, (b) this Tenth Amendment is necessary to permit the
Borrowers to borrow additional Loans and request Letters of Credit and (c) all
credit extensions after the Tenth Amendment Effective Date shall be made in
reliance on the obligations of Holding and the Loan Parties under this
Amendment, including as set forth in the fifth sentence of subsection 4.4(a) of
the Credit Agreement (as amended by Section 3 of this Tenth Amendment).


 


11.   Payment of Expenses.  The Parent Borrower agrees to pay or
reimburse the Administrative Agent and the Lenders for all of their reasonable
out-of-pocket costs and expenses incurred in connection with this Tenth
Amendment, any other documents prepared in connection herewith and the
transactions contemplated hereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Administrative Agent and the Lenders.


 


 


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12.   Continuing Effect of the Loan Documents.  This Tenth Amendment shall not constitute an
amendment or waiver of any provision of the Credit Agreement or any other Loan
Document not expressly referred to herein and shall not be construed as an
amendment, waiver or consent to any further or future action on the part of
Holding, the Borrowers or the Guarantors that would require an amendment,
waiver or consent of the Lenders or Administrative Agent.  Except as expressly amended or waived hereby,
the provisions of the Credit Agreement and the other Loan Documents are and
shall remain in full force and effect. 
Any reference to the “Credit Agreement” or the “Guarantee and Collateral
Agreement” in the Loan Documents or any related documents shall be deemed to be
a reference to the Credit Agreement or the Guarantee and Collateral Agreement,
as applicable, as amended by this Tenth Amendment.


 


13.   Counterparts.  This Tenth Amendment may be executed by one
or more of the parties hereto on any number of separate counterparts (including
by facsimile), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.


 


14.   Severability.  Any provision of this Tenth Amendment which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.


 


15.   Integration.  This Tenth Amendment and the other Loan
Documents represent the agreement of Holding, the Borrowers and the Guarantors,
the Administrative Agent and the Lenders with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by the Administrative Agent or any Lender relative to the subject matter hereof
not expressly set forth or referred to herein or in the other Loan Documents.


 


16.   RELEASE.  AS CONSIDERATION FOR THE EXECUTION BY THE
LENDERS AND THE ADMINISTRATIVE AGENT OF THIS TENTH AMENDMENT, EACH OF THE LOAN
PARTIES HEREBY ACKNOWLEDGES THAT THE OBLIGATIONS ARE ABSOLUTE AND UNCONDITIONAL
WITHOUT ANY RIGHT OF RESCISSION, SETOFF, COUNTERCLAIM, DEFENSE, OFFSET,
CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE
ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY
THE OBLIGATIONS.  THE LOAN PARTIES HEREBY
VOLUNTARILY AND KNOWINGLY RELEASE AND FOREVER DISCHARGE EACH LENDER AND ITS
PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “RELEASED
PARTIES”), FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION,
DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN,
ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR
CONDITIONAL, AT LAW OR IN EQUITY, ARISING BY REASON OF ANY MATTER, CAUSE OR
THING OCCURRING ON OR PRIOR TO THE TENTH AMENDMENT EFFECTIVE DATE, WHICH THE
LOAN PARTIES MAY HAVE AGAINST THE RELEASED PARTIES, IF ANY, AND
IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION
OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY “LOANS” MADE ON OR
PRIOR TO THE TENTH AMENDMENT EFFECTIVE DATE, INCLUDING, 


 


 


6

















 


WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING,
COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE,
THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE CREDIT AGREEMENT OR OTHER
LOAN DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS AGREEMENT.


 


17.   GOVERNING LAW.  THIS TENTH AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS TENTH AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


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IN WITNESS WHEREOF, the parties hereto have
caused this Tenth Amendment to be duly executed and delivered by their proper
and duly authorized officers as of the day and year first above written.


 


	
   

  	
  SIRVA
  WORLDWIDE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Eryk J. Spytek

  
	
   

  	
   

  	
  Name: Eryk J.
  Spytek

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ALLIED
  ARTHUR PIERRE N.V.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Eryk J. Spytek

  
	
   

  	
   

  	
  Name:
  Eryk J. Spytek

  
	
   

  	
   

  	
  Title:
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ALNAV
  PLATINUM COMPANY (as successor to ALNAV Platinum Group Inc.)

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Eryk J. Spytek

  
	
   

  	
   

  	
  Name:
  Eryk J. Spytek

  
	
   

  	
   

  	
  Title:
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PICKFORDS
  AUSTRALIA PTY. LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Eryk J. Spytek

  
	
   

  	
   

  	
  Name:
  Eryk J. Spytek

  
	
   

  	
   

  	
  Title:
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SIRVA
  UK LIMITED (formerly known as Pickfords Limited)

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Eryk J. Spytek

  
	
   

  	
   

  	
  Name: Eryk J.
  Spytek

  
	
   

  	
   

  	
  Title: Director

  



 


 


 

















 


JPMORGAN
CHASE BANK, N.A. (formerly known as JPMorgan Chase Bank), as Administrative
Agent


 


 


 


	
   

  	
  By:

  	
  /s/
  Patrick Daniello

  
	
   

  	
   

  	
  Name:
  Patrick Daniello

  
	
   

  	
   

  	
  Title:
  Managing Director

  



 


 


 


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