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


 


FIFTH
AMENDMENT TO THE CREDIT AGREEMENT


 


November 14, 2005


 





















 


FIFTH
AMENDMENT, dated as of November 14, 2005 (this “Fifth 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 certain provisions of 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 (a) deleting
therefrom the definitions of “Adjustment Date” and “Pricing Grid” in their
respective entireties and (b) deleting therefrom the definition of “Applicable
Margin” in its entirety and substituting in lieu thereof the following
definition:


 


“Applicable Margin”:  as applied to any given type of Loans, (a) with
respect ABR Loans, 3.00% per annum and (b) with respect to Eurocurrency
Loans, 4.00% per annum, provided that, at any time that the Borrower has
a senior implied rating of less than B2 (with negative outlook) from Moody’s or
a corporate credit rating of less than B (with negative outlook) from S&P,
then the Applicable Margin shall be 3.50% per annum, in the case of ABR Loans,
and 4.50% per annum, in the case of Eurocurrency Loans.


 


3.                                       Amendments
to Subsection 7.1 (Financial Statements).  Subsection 7.1 of the Credit Agreement
is hereby amended by:


 


(a)                                  deleting
from paragraph (a) thereof the date “November 15, 2005” and
substituting in lieu thereof the phrase “November 30, 2005, and for the
fiscal year ending December 31, 2005, not later than June 30, 2006”;


 


(b)                                 deleting
from paragraph (b) thereof the date “December 31, 2005” and
substituting in lieu thereof the phrase “March 31, 2006, and for the
quarterly period ending March 31, 2006, not later than July 31, 2006”;


 





















 


(c)                                  deleting
from paragraph (c) thereof the date “November 15, 2005” and
substituting in lieu thereof the phrase “November 30, 2005, and for the
fiscal year ending December 31, 2005, not later than June 30, 2006”;
and


 


(d)                                 deleting
from paragraph (d) thereof the date “December 31, 2005” and
substituting in lieu thereof the phrase “March 31, 2006, and for the
quarterly period ending March 31, 2006, not later than July 31, 2006”.


 


4.                                       Amendment
to Subsection 8.1 (Financial Condition Covenants).  Subsection 8.1 of the Credit Agreement
is hereby amended by deleting such subsection in its entirety and
substituting in lieu thereof the following:


 


8.1.                              Financial Condition Covenants.


 


(a)                                  Maintenance
of Consolidated Interest Coverage Ratio. 
Permit, for any period of four consecutive fiscal quarters of the Parent
Borrower ending during any test period set forth below, the Consolidated
Interest Coverage Ratio at the last day of such consecutive fiscal quarter
period to be less than the ratio set forth opposite such test period below:


 


	
  Test
  Period

  	
   

  	
  Ratio

  	
   

  
	
  January 1,
  2004 – December 30, 2004

  	
   

  	
  3.25 to 1.00

  	
   

  
	
  December 31,
  2004 – September 29, 2005

  	
   

  	
  3.00 to 1.00

  	
   

  
	
  September 30,
  2005 – March 30, 2006

  	
   

  	
  2.75 to 1.00

  	
   

  
	
  March 31,
  2006 – March 30, 2007

  	
   

  	
  2.50 to 1.00

  	
   

  
	
  March 31,
  2007 – September 29, 2007

  	
   

  	
  3.00 to 1.00

  	
   

  
	
  September 30,
  2007 – March 30, 2008

  	
   

  	
  3.25 to 1.00

  	
   

  
	
  March 31,
  2008 – March 30, 2009

  	
   

  	
  3.75 to 1.00

  	
   

  
	
  March 31,
  2009 and thereafter

  	
   

  	
  4.00 to 1.00

  	
   

  



 


(b)                               Maintenance of Consolidated Leverage Ratio.  Permit, at the last day of any fiscal quarter
ending during any test period set forth below, the Consolidated Leverage Ratio
to be greater than the ratio set forth opposite such test period below:


 


	
  Test
  Period

  	
   

  	
  Ratio

  	
   

  
	
  January 1,
  2004 – December 30, 2004

  	
   

  	
  3.50 to 1.00

  	
   

  
	
  December 31,
  2004 – March 30, 2005

  	
   

  	
  4.00 to 1.00

  	
   

  
	
  March 31,
  2005 – September 29, 2005

  	
   

  	
  4.50 to 1.00

  	
   

  
	
  September 30,
  2005 – December 30, 2005

  	
   

  	
  5.50 to 1.00

  	
   

  
	
  December 31,
  2005 – June 29, 2006

  	
   

  	
  5.00 to 1.00

  	
   

  
	
  June 30,
  2006 – December 30, 2006

  	
   

  	
  4.75 to 1.00

  	
   

  
	
  December 31,
  2006 – March 30, 2007

  	
   

  	
  4.50 to 1.00

  	
   

  
	
  March 31,
  2007 – December 30, 2007

  	
   

  	
  4.00 to 1.00

  	
   

  
	
  December 31,
  2007 – March 30, 2008

  	
   

  	
  3.50 to 1.00

  	
   

  
	
  March 31,
  2008 – March 30, 2009

  	
   

  	
  3.00 to 1.00

  	
   

  
	
  March 31,
  2009 and thereafter

  	
   

  	
  2.50 to 1.00

  	
   

  



 


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5.                                       Amendments
to Subsection 8.6(a).  (a) Subsection 8.6(a) of
the Credit Agreement is hereby amended by (a) deleting the word “and” at
the end of clause (xiv) thereof, (b) deleting the “.” at the end of clause
(xv) thereof and substituting “; and” in lieu thereof and (c) inserting
the following new clause (xvi) at the end thereof:


 


(xvi)                       the
Disposition of (A) all of the Capital Stock of SIRVA (Australia) Pty
Limited and The Imaging Centre Pty Limited pursuant to the Share Sale
Agreement, dated as of October 14, 2005, among SIRVA (Asia Pacific) Pty
Limited, the Parent Borrower, IM Australia Holdings Pty Ltd, IM New Zealand
Holdings ULC, and Iron Mountain Incorporated and (B) all of the Capital
Stock of SIRVA New Zealand Limited and Imaging Systems (NZ) Limited pursuant to
the Share Sale Agreement, dated as of October 14, 2005, among SIRVA
(Australia) Pty Limited, the Parent Borrower, IM New Zealand Holdings ULC and
Iron Mountain Incorporated, as each such agreement may be amended, supplemented
or otherwise modified from time to time (so long as no such amendment,
supplement or other modification is adverse to the Parent Borrower or the
sellers thereunder or the Lenders), provided, in each case, that (x)
subject to clause (y) below, 100% of the Net Cash Proceeds of such Disposition
is applied in accordance with subsection 4.4(c) and (y)
notwithstanding anything to the contrary in such subsection 4.4(c), none
of such Net Cash Proceeds are eligible to be reinvested.


 


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


 


(a)                                  the
Administrative Agent shall have received (i) counterparts of this Fifth
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 (each, a “Lender Addendum”)
from the Required Lenders under 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
fees required to be paid on or before the Fifth Amendment Effective Date, and
all expenses required to be paid on or before the Fifth 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 12:00 Noon (New York City time) on November 14,
2005, an amendment fee in an amount equal to 0.25% of the sum of each such
Lender’s Revolving Credit Commitment and Term Loans then outstanding.


 


7.                                       Representations
and Warranties.


 


(a)                                  No
Default.  No Default or Event of
Default shall have occurred and be continuing on the Fifth Amendment Effective
Date after giving effect to the transactions contemplated herein.


 


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(b)                                 Representations
and Warranties.  Each of the
representations and warranties made by Holding and the Loan Parties in or
pursuant to the Loan Documents shall be true and correct in all material
respects on and as of the Fifth 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.


 


8.                                       Payment
of Expenses.  The Parent Borrower
agrees to pay or reimburse the Administrative Agent for all of its reasonable
out-of-pocket costs and expenses incurred in connection with this Fifth
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.


 


9.                                       Continuing
Effect of the Loan Documents.  This
Fifth 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 or the Loan Parties that would
require an amendment, waiver or consent of the Lenders or Administrative
Agent.  Except as expressly amended
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” in the Loan Documents or any
related documents shall be deemed to be a reference to the Credit Agreement as
amended by this Fifth Amendment. 


 


10.                                 Counterparts.  This Fifth 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.


 


11.                                 Severability.  Any provision of this Fifth 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.


 


12.                                 Integration.  This Fifth Amendment and the other Loan
Documents represent the agreement of Holding, the Loan Parties, 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.


 


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


 


[THE REMAINDER
OF THIS PAGE IS INTENTIONALLY LEFT BLANK]


 


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IN WITNESS
WHEREOF, the parties hereto have caused this Fifth 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/ Ralph A. Ford

  
	
   

  	
   

  	
  Name:

  	
  Ralph A. Ford

  
	
   

  	
   

  	
  Title:

  	
  SVP, Secretary and General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ALLIED ARTHUR PIERRE N.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Ralph A. Ford

  
	
   

  	
   

  	
  Name:

  	
  Ralph A. Ford

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ALNAV PLATINUM COMPANY (as successor to

  ALNAV Platinum Group Inc.)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Ralph A. Ford

  
	
   

  	
   

  	
  Name:

  	
  Ralph A. Ford

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PICKFORDS AUSTRALIA PTY. LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Michael Filipovic

  
	
   

  	
   

  	
  Name:

  	
  Michael Filipovic

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SIRVA UK LIMITED (formerly known as
  Pickfords Limited)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Ralph A. Ford

  
	
   

  	
   

  	
  Name:

  	
  Ralph A. Ford

  
	
   

  	
   

  	
  Title:

  	
  Director

  
					



 





















 


	
   

  	
  JPMORGAN CHASE BANK, N.A. (formerly known
  as

  JPMorgan Chase Bank), as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Kathryn A. Duncan

  
	
   

  	
   

  	
  Name:

  	
  Kathryn A. Duncan

  
	
   

  	
   

  	
  Title:

  	
  Vice President