EXHIBIT 10.21
EXECUTION COPY
FIFTH AMENDMENT
FIFTH AMENDMENT, dated as of April 30, 2002 (this "AMENDMENT"), to the
Credit Agreement, dated as of November 19, 1999 (as amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among NORTH
AMERICAN VAN LINES, INC., a Delaware corporation (the "PARENT BORROWER"), the
Foreign Subsidiary Borrowers (as defined in the Credit Agreement) from time to
time parties to the Credit Agreement, the several banks and other financial
institutions from time to time parties to the Credit Agreement (the "LENDERS"),
THE BANK OF NEW YORK, as documentation agent, BANC OF AMERICA SECURITIES LLC, as
syndication agent, and JPMORGAN CHASE BANK (formerly known as The Chase
Manhattan Bank), a New York banking corporation, as collateral agent and
administrative agent for the Lenders (in such capacity, the "ADMINISTRATIVE
AGENT"); and THIRD AMENDMENT to the Guarantee and Collateral Agreement (as
defined in the Credit Agreement).
W I T N E S S E T H :
WHEREAS, the Parent Borrower and certain of the Parent Borrower's
wholly owned subsidiaries propose to acquire (the "CRS ACQUISITION")
substantially all of the assets of Cooperative Resource Services, Ltd. ("CRS")
relating to the business of providing comprehensive relocation services,
including the voting securities of certain of CRS's subsidiaries (collectively
with CRS, the "TARGET") for approximately $65,000,000 (including fees and
expenses of approximately $5,000,000, and excluding the pay-off of approximately
$24,000,000 of indebtedness of the Target pursuant to the terms of the
Acquisition Agreement, dated as of March 19, 2002 (as amended, supplemented or
otherwise modified from time to time, the "ACQUISITION AGREEMENT"), among SIRVA,
Inc., a Delaware corporation and the holding company parent of the Parent
Borrower ("HOLDING"), SIRVA Acquisition Company, LLC, a Delaware limited
liability company ("CRS Holding"), the Target and certain other parties;
WHEREAS, in order to finance a portion of the purchase price of the
CRS Acquisition, the Parent Borrower has requested that the Administrative Agent
and the Lenders agree to amend the Credit Agreement in order to provide for an
incremental increase of $50,000,000 in the Parent Borrower's existing Tranche B
Term Loan facility (the "INCREMENTAL TRANCHE B TERM LOAN FACILITY"; the loans
thereunder, the "INCREMENTAL TRANCHE B TERM LOANS");
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the Parent
Borrower; and
WHEREAS, the Parent Borrower has requested that the Lenders agree to
amend certain provisions of the Credit Agreement and the Guarantee and
Collateral Agreement, upon the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
SECTION 2. AMENDMENTS TO SUBSECTION 1.1 (DEFINED TERMS). (a) The
definitions of "Arrangers" and "Tranche B Term Loan" in subsection 1.1 of the
Credit Agreement are hereby amended in their respective entireties to read as
follows:
"ARRANGERS": JPMorgan and BAS in their respective capacities as
arrangers and as joint financial advisors.
"TRANCHE B TERM LOAN": an Original Tranche B Term Loan or an
Incremental Tranche B Term Loan, as the context shall require;
collectively, the "TRANCHE B TERM LOANS".
(b) The definition of "Indebtedness" in subsection 1.1 of the Credit
Agreement is hereby amended by inserting at the end thereof the following new
sentence:
Notwithstanding the foregoing, in no event shall "Indebtedness"
include (i) obligations of CRS Holding or any of its Subsidiaries to
make payments under or with respect to mortgage notes payable in the
ordinary course of business in connection with the provision of
relocation services or (ii) such mortgage notes; PROVIDED that the
aggregate principal amount of all such mortgage notes referred to in
the foregoing clauses (i) and (ii) does not exceed $40,000,000 at any
time outstanding.
(c) Subsection 1.1 of the Credit Agreement is hereby amended by
inserting the following new definitions in the appropriate alphabetical order:
"CD&R FUND VI": Xxxxxxx, Dubilier & Rice Fund VI Limited
Partnership, a Cayman Islands exempted limited partnership managed by
CD&R.
"CMS": Cooperative Mortgage Services, Inc., an Ohio corporation.
"CMS HOLDING": CMS Holding, LLC, a Delaware limited liability
company.
"CRS": Cooperative Resource Services Ltd., an Ohio limited
liability company.
"CRS ACQUISITION": the acquisition by CRS Holding and/or its
Wholly Owned Subsidiaries of substantially all of the assets of CRS
relating to the business of providing comprehensive relocation
services, including the voting securities of certain of CRS's
Subsidiaries.
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"CRS HOLDING": SIRVA Acquisition Company, LLC, a Delaware
limited liability company and Wholly Owned Subsidiary of the Parent
Borrower.
"EBITDA": for any period, Consolidated Net Income for such period
adjusted to exclude the following items (without duplication) of
income or expense to the extent that such items are included in the
calculation of Consolidated Net Income: (a) Consolidated Interest
Expense, (b) any non-cash expenses and charges (excluding any such
charge that constitutes an accrual of or a reserve for cash charges
for any future period), (c) total income tax expense, (d) depreciation
expense, (e) the expense associated with amortization of intangible
and other assets (including amortization or other expense recognition
of any costs associated with asset write-ups in accordance with APB
Nos. 16 and 17), (f) non-cash provisions for reserves for discontinued
operations, (g) any extraordinary, unusual or non-recurring gains or
losses or charges or credits, (h) any gain or loss associated with the
sale or write-down of assets not in the ordinary course of business,
(i) any income or loss accounted for by the equity method of
accounting (except in the case of income to the extent of the amount
of cash dividends or cash distributions paid to the Parent Borrower or
any Subsidiary by the entity accounted for by the equity method of
accounting), (j) up to the Available Adjustment in respect of any cash
expenses for (i) the development and implementation of an e-commerce
strategy and (ii) the development and implementation of new
information technology and (k) for any period ending on or prior to
December 31, 2002, any losses incurred by Moveline for such period and
any costs incurred for such period in connection with the Moveline
strategic initiatives identified by the Parent Borrower, PROVIDED that
the amounts referred to in this clause (k) shall not exceed
$25,000,000 in the aggregate. For the purposes of calculating EBITDA
for any period of four consecutive fiscal quarters (each, a "REFERENCE
PERIOD") pursuant to any determination of the Leverage Ratio, (x) if
at any time during such Reference Period the Parent Borrower or any of
its Subsidiaries shall have made any Material Disposition, the EBITDA
for such Reference Period shall be reduced by an amount equal to the
EBITDA (if positive) attributable to the property that is the subject
of such Material Disposition for such Reference Period or increased by
an amount equal to the EBITDA (if negative) attributable thereto for
such Reference Period any (y) if during such Reference Period the
Parent Borrower or any of its Subsidiaries shall have made a Material
Acquisition, EBITDA for such Reference Period shall be calculated
after giving PRO FORMA effect thereto as if such Material Acquisition
occurred on the first day of such Reference Period. As used in this
definition, "Material Acquisition" means any acquisition of property
or series of related acquisitions of property that (A) constitutes
assets comprising all or substantially all of an operating unit of a
business or constitutes all or substantially all of the common stock
of a Person and (B) involves the payment of consideration by the
Parent Borrower and its Subsidiaries in excess of $1,000,000; and
"Material Disposition" means any Disposition of property or series of
related Dispositions of property that yields gross proceeds to the
Parent Borrower or any of its Subsidiaries in excess of $1,000,000.
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"INCREMENTAL TRANCHE B EFFECTIVE DATE": the Effective Date as
defined in the Fifth Amendment dated as of April 30, 2002 to this
Agreement.
"INCREMENTAL TRANCHE B TERM LOAN": as defined in subsection
2.6(c).
"JPMORGAN": X.X. Xxxxxx Securities Inc.
"ORIGINAL TRANCHE B TERM LOAN": as defined in subsection 2.6(b).
SECTION 3. AMENDMENT TO SUBSECTION 2.6 (TERM LOANS). The first
sentence of subsection 2.6 of the Credit Agreement is hereby amended in its
entirety to read as follows:
Subject to the terms and conditions hereof, each Term Loan Lender (a)
made a term loan (a "TRANCHE A TERM LOAN") to the Parent Borrower on
the Effective Date in an aggregate principal amount set forth
opposite such Term Loan Lender's name in Schedule I under the heading
"Tranche A Term Loan Commitment", (b) made a term loan (an "ORIGINAL
TRANCHE B TERM LOAN") to the Parent Borrower on the Effective Date in
an aggregate principal amount set forth opposite such Term Loan
Lender's name in Schedule I under the heading "Tranche B Term Loan
Commitment" and (c) severally agrees to make a term loan (an
"INCREMENTAL TRANCHE B TERM LOAN") to the Parent Borrower on the
Incremental Tranche B Effective Date in an aggregate principal amount
set forth opposite such Term Loan Lender's name in Schedule A-1 under
the heading "Incremental Tranche B Term Loan Commitment".
SECTION 4. AMENDMENT TO SUBSECTION 2.8 (TRANCHE B TERM NOTES).
Subsection 2.8 of the Credit Agreement is hereby amended in its entirety to read
as follows:
2.8 TRANCHE B TERM NOTES. (a) The Parent Borrower agrees that,
upon the request to the Administrative Agent by any Tranche B Term
Loan Lender made on or prior to the Effective Date (or, in the case of
any Incremental Tranche B Term Loan, on or prior to the Incremental
Tranche B Effective Date) or in connection with any assignment of its
Loan, in order to evidence such Term Loan Lender's Tranche B Term
Loan, the Parent Borrower will execute and deliver to such Term Loan
Lender one or more promissory notes substantially in the form of
Exhibit A-3 (each, as amended, supplemented, replaced or otherwise
modified from time to time, a "TRANCHE B TERM NOTE"), with appropriate
insertions therein as to payee, date and principal amount, payable to
the order of such Term Loan Lender and in an aggregate principal
amount equal to the lesser of (i) the sum of (A) the amount set forth
opposite such Term Loan Lender's name on Schedule I under the heading
"Tranche B Term Loan Commitment" plus (B) the amount set forth
opposite such Term Loan Lender's name on Schedule A-1 under the
heading "Incremental Tranche B Term Loan Commitment" and (ii) the
unpaid principal amount of the Tranche B Term Loans made by such Term
Loan Lender. Each Tranche B Term Note shall (x) be dated the Effective
Date (or, in the case of any Incremental Tranche B Term Loan, the
Incremental Tranche B Effective Date),
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(y) be payable as provided in subsection 2.8(b) and (z) provide for
the payment of interest in accordance with subsection 4.1.
(b) The aggregate Tranche B Term Loans of all the Term Loan
Lenders shall be payable in 20 consecutive installments on the dates
and in a principal amount equal to the amount set forth below
(together with all accrued interest thereon) opposite the applicable
installment date (or, if less, the aggregate amount of the Tranche B
Term Loans then outstanding):
Dates Amount
----- ------
March 28, 2003 $ 540,945.99
June 27, 2003 $ 540,945.99
September 26, 2003 $ 540,945.99
December 26, 2003 $ 540,945.99
March 26, 2004 $ 540,945.99
June 25, 2004 $ 540,945.99
September 24, 2004 $ 540,945.99
December 24, 2004 $ 540,945.99
March 25, 2005 $ 540,945.99
June 24, 2005 $ 540,945.99
September 23, 2005 $ 540,945.99
December 30, 2005 $ 540,945.99
March 31, 2006 $ 19,937,723.60
June 30, 2006 $ 19,937,723.60
September 29, 2006 $ 19,937,723.60
December 29, 2006 $ 19,937,723.60
March 30, 2007 $ 30,911,199.38
June 29, 2007 $ 30,911,199.38
September 28, 2007 $ 30,911,199.38
Final Maturity Date $ 30,911,199.38
SECTION 5. AMENDMENT TO SUBSECTION 2.9 (PROCEDURE FOR TERM LOAN
BORROWING). Subsection 2.9 of the Credit Agreement is hereby amended in its
entirety to read as follows:
2.9 PROCEDURE FOR TERM LOAN BORROWING. The Parent Borrower shall
give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to (a) 12:30 P.M.,
New York
City time, at least three Business Days prior to the Effective Date
(or, in the case of Incremental Tranche B Term Loans, the Incremental
Tranche B Effective Date), if all or any part of the Term Loans are to
be initially Eurocurrency Loans made in Dollars, (b) 11:00 A.M.,
London time, at least three Business Days prior to the Effective Date,
if any part of the Tranche A Term Loans are to be initially
Eurocurrency Loans made in any Designated Foreign Currency or (c)
12:30 P.M.,
New York City time, at least one Business Day prior to the
Effective Date (or the Incremental Tranche B Effective Date, as the
case may be), otherwise) requesting that the Term Loan Lenders make
the Term Loans on the Effective Date (or the
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Incremental Tranche B Effective Date, as the case may be) and
specifying (i) the amount to be borrowed, (ii) whether the Term Loans
are to be initially Eurocurrency Loans, ABR Loans or a combination
thereof, and (iii) if the Term Loans are to be entirely or partly
Eurocurrency Loans, the respective amounts of each such Type of Loan
and the respective lengths of the initial Interest Periods therefor
and, if the Eurocurrency Loans in respect of any part of the borrowing
of Tranche A Term Loans are to be made entirely or partly in any
Designated Foreign Currency, the Designated Foreign Currency thereof.
Upon receipt of such notice the Administrative Agent shall promptly
notify each Term Loan Lender thereof. Each Term Loan Lender will make
the amount of its PRO RATA share of the Term Loans available to the
Administrative Agent for the account of the Parent Borrower at the
office of the Administrative Agent specified in subsection 11.2 prior
to 10.00 A.M.,
New York City time, or at such other office of the
Administrative Agent or at such other time as to which the
Administrative Agent shall notify such Term Loan Lender and the Parent
Borrower reasonably in advance of the Effective Date (or the
Incremental Tranche B Effective Date, as the case may be) with respect
thereto, on the Effective Date (or the Incremental Tranche B Effective
Date, as the case may be) in Dollars or the applicable Designated
Foreign Currency and in funds immediately available to the
Administrative Agent. The Administrative Agent shall on such date
credit the account of the Parent Borrower on the books of such office
of the Administrative Agent with the aggregate of the amounts made
available to the Administrative Agent by the Term Loan Lenders and in
like funds as received by the Administrative Agent.
SECTION 6. AMENDMENT TO SUBSECTION 4.10 (REQUIREMENTS OF LAW).
Subsection 4.10 of the Credit Agreement is hereby amended by adding the phrase
", or with respect to the Incremental Tranche B Term Loans, the Incremental
Tranche B Effective Date" immediately before the phrase "(or, if later, the
date on which such Lender becomes a Lender)" in each place the latter phrase
appears.
SECTION 7. AMENDMENT TO SUBSECTION 4.11(b) (TAXES). Subsection 4.11
(b) is hereby amended by adding the phrase "(or, if later, with respect to the
Incremental Tranche B Term Loans, the Incremental Tranche B Effective Date)"
immediately after the phrase "after the date such Person becomes a Lender
hereunder".
SECTION 8. AMENDMENTS TO SUBSECTION 5.17 (PURPOSE OF LOANS). (a)
Subsection 5.17 of the Credit Agreement is hereby amended by adding the phrase
"(other than the Incremental Tranche B Term Loans)" immediately after the phrase
"The proceeds of the Term Loans".
(b) Subsection 5.17 of the Credit Agreement is hereby further amended
by adding the following sentence to the end thereof:
The proceeds of the Incremental Tranche B Term Loans shall be used by
the Borrower to finance a portion of the purchase price of the CRS
Acquisition, to pay certain transaction fees and expenses related to
the CRS Acquisition (such
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transaction fees and expenses not to exceed $5,500,000) and for
general corporate purposes of the Parent Borrower and its
Subsidiaries.
SECTION 9. AMENDMENT TO SUBSECTION 7.4 (CONDUCT OF BUSINESS AND
MAINTENANCE OF EXISTENCE). Subsection 7.4 of the Credit Agreement is hereby
amended by adding the phrase ", or business of the same general type as
conducted by CRS and its Subsidiaries on the Incremental Tranche B Effective
Date" immediately after the phrase "on the Effective Date".
SECTION 10. AMENDMENT TO SUBSECTION 7.9(a) (AFTER-ACQUIRED REAL
PROPERTY AND FIXTURES). Subsection 7.9(a) of the Credit Agreement is hereby
amended by adding the following language at the end of the first sentence
thereof:
; and PROVIDED FURTHER that nothing in this paragraph (a) shall
require the grant of a Lien of record in respect of any owned
residential real property, fixtures, or related assets acquired by CRS
Holding or any of its Subsidiaries in the ordinary course of business
in connection with the provision of relocation services.
SECTION 11. AMENDMENT TO SUBSECTION 7.10 (ACQUIRED SUBSIDIARIES;
FURTHER SECURITY AND GUARANTEES). Each of subsection 7.10(a) and subsection
7.10(b) is hereby amended by adding the following language at the end of the
first sentence thereof:
; PROVIDED that nothing in this paragraph shall require the execution
of any documents or the taking of any actions to xxxxx x Xxxx of
record in respect of any owned residential real property, fixtures, or
related assets acquired by CRS Holding or any of its Subsidiaries in
the ordinary course of business in connection with the provision of
relocation services.
SECTION 12. AMENDMENT TO SUBSECTION 8.1(b) (FINANCIAL CONDITION
COVENANTS). Subsection 8.1(b) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(b) MAINTENANCE OF LEVERAGE RATIO. Permit, at the last day of any
fiscal quarter ending during any test period set forth below, the
Leverage Ratio to be greater than the ratio set forth opposite such
test period below:
Test Period Ratio
----------- -----
December 29, 2001 - March 29, 2002 4.60 to 1.00
March 30, 2002 - June 28, 2002 4.60 to 1.00
June 29, 2002 - September 27, 2002 4.60 to 1.00
September 28, 2002 - December 27, 2002 4.35 to 1.00
December 28, 2002 - March 28, 2003 4.35 to 1.00
March 29, 2003 - June 27, 2003 4.60 to 1.00
June 28, 2003 - September 26, 2003 4.60 to 1.00
September 27, 2003 - December 26, 2003 3.85 to 1.00
December 27, 2003 - March 26, 2004 3.85 to 1.00
March 27, 2004 - June 25, 2004 3.95 to 1.00
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June 26, 2004 - September 24, 2004 3.95 to 1.00
September 25, 2004 - December 31, 2004 3.35 to 1.00
January 1, 2005 and thereafter 3.00 to 1.00
PROVIDED that in the event that the Parent Borrower changes its fiscal
year end to the last day of December, each of the foregoing test
periods occurring after such change shall be deemed to commence on the
first day of January, April, July or October, as applicable, and end
on the last day of March, June, September or December, as applicable
(e.g., the test period from December 29, 2001 through March 29, 2002
would become the period from January 1, 2002 through March 31, 2002).
SECTION 13. AMENDMENT TO SUBSECTION 8.2 (LIMITATION ON INDEBTEDNESS).
Subsection 8.2 of the Credit Agreement is hereby amended by (a) deleting the
word "and" at the end of paragraph (p) thereof, (b) deleting the "." at the end
of paragraph (q) thereof and substituting ";" in lieu thereof and (c) inserting
the following new paragraphs (r) and (s) immediately after paragraph (q)
thereof:
(r) Indebtedness of the Parent Borrower, or of a Subsidiary of
the Parent Borrower that is a Guarantor, in respect of subordinated
seller notes in a principal amount not exceeding $15,000,000 in the
aggregate at any time outstanding, issued to pay a portion of the
purchase price of the CRS Acquisition and having subordination and
other terms reasonably satisfactory to the Administrative Agent; and
(s) Indebtedness of CRS Holding or any of its Subsidiaries
incurred in connection with financing the acquisition of residential
real property, fixtures or related assets by CRS Holding or any of its
Subsidiaries in the ordinary course of business in connection with the
provision of relocation services, not exceeding $20,000,000 in
aggregate principal amount at any time outstanding.
SECTION 14. AMENDMENT TO SUBSECTION 8.3 (LIMITATION ON LIENS).
Subsection 8.3 of the Credit Agreement is hereby amended by (a) deleting the
word "and" at the end of paragraph (r) thereof, (b) deleting the "." at the end
of paragraph (s) thereof and substituting "; and" in lieu thereof and (c)
inserting the following new paragraph (t) immediately after paragraph (s)
thereof;
(t) Liens on residential real property, fixtures and related
assets acquired as contemplated by Section 8.2(s), securing
Indebtedness permitted by Section 8.2(s).
SECTION 15. AMENDMENT TO SUBSECTION 8.9 (LIMITATION ON INVESTMENTS,
LOANS AND ADVANCES). Subsection 8.9 of the Credit Agreement is hereby amended by
(a) deleting the word "and" at the end of paragraph (s) thereof, (b) deleting
the "." at the end of paragraph (t) thereof and substituting "; and" in lieu
thereof and (c) inserting the following new paragraph (u) immediately after
paragraph (t) thereof:
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(u) loans and advances made by CRS Holding or any of its
Subsidiaries for the purpose of financing a portion of the purchase
price for the acquisition of residential real estate, fixtures or
related assets, PROVIDED that such loans and advances are made by CRS
Holding or such Subsidiaries in the ordinary course of business in
connection with the provision of relocation services.
SECTION 16. AMENDMENTS TO SUBSECTION 8.10 (LIMITATIONS ON CERTAIN
ACQUISITIONS). (a) Subsections 8.10(b) and 8.10(c)(ii) of the Credit Agreement
are hereby amended by (i) deleting therefrom the words "Effective Date" and
substituting in lieu thereof the words "Incremental Tranche B Effective Date" in
each instance and (ii) adding to the end of each such subsection the phrase ";
PROVIDED that any portion of the cash consideration for any such acquisition
funded with the proceeds of any new equity contributed by CD&R Fund VI and/or
investors arranged by CD&R shall not be included in the calculation of aggregate
consideration hereunder".
(b) Subsection 8.10 of the Credit Agreement is hereby amended by (i)
deleting the word "or" at the end of paragraph (d) thereof, (ii) deleting the
"." at the end of paragraph (e) thereof and substituting ";" in lieu thereof and
(iii) inserting the following new paragraphs (f), (g) and (h) immediately after
paragraph (e) thereof:
(f) such acquisition is the CRS Acquisition, PROVIDED that (i)
the aggregate consideration (including cash, contingent earn-out
payments to the existing shareholders of CRS and any Indebtedness
assumed by the Parent Borrower or any of its Subsidiaries in
connection with such acquisition, but excluding any Indebtedness of
CRS and its Subsidiaries repaid in connection therewith) does not
exceed $65,500,000, (ii) the aggregate amount of Indebtedness of CRS
and its Subsidiaries repaid in connection with such acquisition does
not exceed $24,000,000, (iii) a portion of the purchase price for such
acquisition shall be funded with not less than $36,500,000 of proceeds
of equity contributions to Holding from CD&R Fund VI and/or investors
arranged by CD&R (which proceeds shall have been contributed by
Holding to the Parent Borrower as an equity contribution) and (iv) no
Indebtedness shall be issued as part of the consideration for such
acquisition other than the Indebtedness permitted by subsection
8.2(r);
(g) such acquisition was expressly permitted by clause (b) of
subsection 8.10 as in effect immediately prior to the Incremental
Tranche B Effective Date and was consummated prior to such date; or
(h) such acquisition was expressly permitted by clause (c) of
subsection 8.10 as in effect immediately prior to the Incremental
Tranche B Effective Date and was consummated prior to such date;
SECTION 17. AMENDMENT TO SUBSECTION 8.16(a) (LIMITATION ON LINES OF
BUSINESS; CREATION OF SUBSIDIARIES). Subsection 8.16(a) is hereby amended by
inserting therein the phrase "or those in which CRS and its Subsidiaries are
engaged on the Incremental Tranche B Effective Date," immediately prior to the
phrase "or which are related thereto".
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SECTION 18. AMENDMENT OF SUBSECTION 11.6 (SUCCESSORS AND ASSIGNS;
PARTICIPATIONS AND ASSIGNMENTS). Subsection 11.6(e) of the Credit Agreement is
hereby amended in its entirety as follows:
(e) Notwithstanding anything in this Agreement to the contrary,
no assignment under subsection 11.6(c) of any rights or obligations
under or in respect of the Loans or the Notes evidencing such Loans
shall be effective unless and until the Administrative Agent shall
have recorded the assignment pursuant to subsection 11.6(d). Upon its
receipt of an Assignment and Acceptance executed by an assigning
Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Administrative Agent and
the Parent Borrower), together with payment to the Administrative
Agent of a registration and processing fee of $3,500 (which fee need
not be paid in the case of any assignment to an affiliate of the
assigning Lender or to an Approved Fund; and provided that in the case
of contemporaneous assignments by a Lender to more than one fund
managed by the same investment advisor (which funds are not then
Lenders hereunder, affiliates thereof or Approved Funds), only a
single fee of $3,500 shall be payable for all such contemporaneous
assignments), the Administrative Agent shall (i) promptly accept such
Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the
Register and give prompt notice of such acceptance and recordation to
the Lenders and the Parent Borrower. On or prior to such effective
date, the assigning Lender shall surrender any outstanding Notes held
by it all or a portion of which are being assigned, and the Parent
Borrower, at its own expense, shall, upon the request to the
Administrative Agent by the assigning Lender or the Assignee, as
applicable, execute and deliver (and cause the applicable Foreign
Subsidiary Borrowers to execute and deliver) to the Administrative
Agent (in exchange for the outstanding Notes of the assigning Lender)
a new Revolving Credit Note, a Tranche A Term Note, one or more
Tranche B Term Notes and/or a Swing Line Note, as the case may be, to
the order of such Assignee in an amount equal to (i) in the case of a
Revolving Credit Note, the lesser of (A) the amount of such Assignee's
Revolving Credit Commitment and (B) the aggregate principal amount of
all Revolving Credit Loans made by such Assignee, (ii) in the case of
a Tranche A Term Note, the amount of such Assignee's Tranche A Term
Loan, (iii) in the case of any Tranche B Term Notes, the amount of
such Assignee's Tranche B Term Loans and (iv) in the case of a Swing
Line Note, the lesser of (A) the Swing Line Commitment and (B) the
aggregate principal amount of all Swing Line Loans made by such
Assignee, in each case with respect to the relevant Loan, Swing Line
Commitment, or Revolving Credit Commitment after giving effect to such
Assignment and Acceptance and, if the assigning Lender has retained a
Swing Line Commitment, Revolving Credit Commitment or Term Loan
hereunder, a new Revolving Credit Note, a new Tranche A Term Note, one
or more new Tranche B Term Notes and/or a new Swing Line Note, as the
case may be, to the order of the assigning Lender in an amount equal
to (i) in the case of a Revolving Credit Note, the lesser of (A) the
amount of such Lender's Revolving Credit Commitment and (B) the
aggregate principal amount of all Revolving Credit Loans made by such
Lender, (ii) in the case of a Tranche A
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Term Note, the amount of such Lender's Tranche A Term Loan, (iii) in
the case of any Tranche B Term Notes, the amount of such Lender's
Tranche B Term Loans and (iv) in the case of a Swing Line Note, the
lesser of (A) the Swing Line Commitment and (B) the aggregate
principal amount of all Swing Line Loans made by such Lender, in each
case with respect to the relevant Loan, Swing Line Commitment or
Revolving Credit Commitment after giving effect to such Assignment and
Acceptance. Any such new Notes shall be dated the Effective Date (or,
in the case of any Incremental Tranche B Term Loans, the Incremental
Tranche B Effective Date) and shall otherwise be in the form of the
Note replaced thereby. Any Notes surrendered by the assigning Lender
shall be returned by the Administrative Agent to the Parent Borrower
marked "cancelled".
SECTION 19. SCHEDULE A-1. The Credit Agreement is hereby amended by
adding as Schedule A-1 thereto the document attached to this Amendment as
Schedule A-1.
SECTION 20. AMENDMENT TO SUBSECTION 5.4.1 OF THE GUARANTEE AND
COLLATERAL AGREEMENT (CAPITAL CONTRIBUTIONS TO THE PARENT BORROWER). Section
5.4.1 of the Guarantee and Collateral Agreement is hereby amended by deleting
therefrom the words "all of such cash proceeds" and substituting in lieu thereof
the words "all net cash proceeds thereof".
SECTION 21. AMENDMENTS TO SUBSECTION 5.4.2 OF THE GUARANTEE AND
COLLATERAL AGREEMENT (LIMITATION ON ACTIVITIES OF HOLDING). (a) The lead-in to
subsection 5.4.2 of the Guarantee and Collateral Agreement is hereby amended by
inserting the words ",Holding will not" at the end thereof.
(b) Clause (j) of subsection 5.4.2(i) of the Guarantee and Collateral
Agreement is hereby amended in its entirety to read as follows:
(j) the making of loans to or other Investments in, or incurrence of
Indebtedness to, its Subsidiaries (to the extent not otherwise
prohibited by any of the Loan Documents) PROVIDED that the amount of
loans to, Investments in or incurrence of Indebtedness to CMS and CMS
Holding made or incurred after the Incremental Tranche B Effective
Date shall not exceed of $1,000,000 in the aggregate at any time
outstanding,
(c) Subsection 5.4.2(ii) of the Guarantee and Collateral Agreement is
hereby amended by (i) deleting clause (a) thereof in its entirety and
substituting in lieu thereof the following:
(a) liabilities or obligations imposed by operation of law or
otherwise arising in connection with any activity permitted under the
preceding clause (i); PROVIDED that any Indebtedness incurred as
permitted by this clause (a) after the Incremental Tranche B Effective
Date shall not exceed $1,000,000 in the aggregate at any time
outstanding,
(ii) deleting the word "and" at the end of clause (f) thereof and substituting
"," in lieu thereof and (iii) inserting the following new clauses (h) and (i)
immediately after clause (g) thereof:
11
(h) Guarantee Obligations of Holding in respect of subordinated seller
notes permitted by subsection 8.2(r) of the Credit Agreement, provided
that such Guarantee Obligations are subordinated to Holding's
Guarantee to the same extent as the obligations of the issuer of such
seller subordinated notes thereunder are subordinated to such issuer's
obligations under the Credit Agreement or the Guarantee and Collateral
Agreement, as applicable and (i) Guarantee Obligations of Holding (A)
in respect of Indebtedness of CMS under arrangements in effect on the
Incremental Tranche B Effective Date among CMS and one or more lenders
relating to the financing by any such lender or lenders of mortgage
loans originated or otherwise acquired by CMS in the ordinary course
of business or (B) in respect of any amendments, refinancings,
refundings, renewals, replacements or extensions of such Indebtedness;
PROVIDED that the terms and conditions of the Indebtedness resulting
from any such amendment, refinancing, refunding, renewal, replacement
or extension (and any Guarantee Obligation of Holding in respect
thereof) shall be reasonably satisfactory in form and substance to the
Administrative Agent if the terms and conditions of such amended or
new Indebtedness, as applicable (and the related Guarantee Obligation
of Holding), are, taken as a whole, materially worse than the terms
and conditions of the Indebtedness and any Guarantee Obligation of
Holding in respect thereof as in effect prior to such amendment,
refinancing, refunding, renewal, replacement or extension, taken as a
whole (it being understood and agreed that, in the event of any such
amendment, refinancing, refunding, renewal, replacement or extension
that has the effect of replacing the sole or lead lender, as
applicable, or materially modifying the terms of such Indebtedness,
Holdings shall provide written notice to the Administrative Agent
describing such event no later than 10 Business Days prior to the
effectiveness of such event);
(d) Subsection 5.4.2(ix) of the Guarantee and Collateral Agreement is
hereby amended by adding to the end thereof the phrase "and other than the
ownership of shares of Capital Stock of CMS and CMS Holding, or otherwise as
contemplated by or in connection with any activity permitted under the preceding
clause (i) of this subsection 5.4.2".
SECTION 22. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective upon the satisfaction of the following conditions precedent (the
effective date of this Amendment, the "EFFECTIVE DATE"):
(a) AMENDMENT. The Administrative Agent shall have received (i)
counterparts of this Amendment executed by (A) the Parent Borrower, (B) the
Required Lenders, (C) the Revolving Credit Lenders, the Revolving Credit
Commitment Percentages of which aggregate at least 51%, (D) Tranche A Term Loan
Lenders, the Tranche A Term Loan Percentages of which aggregate at least 51%,
(E) Tranche B Term Loan Lenders, the Tranche B Term Loan Percentages of which
aggregate at least 51% and (F) each Lender under the Incremental Tranche B Term
Loan Facility; and (ii) the attached Acknowledgment and Consent, executed by
each Guarantor.
(b) MORTGAGES. With respect to each of the Mortgages, to the extent
reasonably requested by the Administrative Agent, a mortgage amendment in form
and
12
substance reasonably satisfactory to the Administrative Agent (a "MORTGAGE
AMENDMENT"), which has the effect of including all obligations of the Loan
Parties in respect of the Incremental Tranche B Term Loans as secured
obligations under such Mortgage, executed and delivered by a duly authorized
officer of the Loan Party signatory thereto.
(c) ACQUISITION AGREEMENT; CONSUMMATION OF THE CRS ACQUISITION. The
Acquisition Agreement shall not have been amended, supplemented, waived or
otherwise modified in any material respect since the date thereof, except as may
have been consented to in writing by the Administrative Agent acting reasonably.
The CRS Acquisition shall have been consummated in accordance with the terms and
conditions of the Acquisition Agreement for an aggregate purchase price of
approximately $65,000,000 (including fees and expenses of approximately
$5,000,000, and excluding the pay-off of approximately $24,000,000 of
Indebtedness of the Target), of which up to $15,000,000 may have been paid with
subordinated seller notes issued by the Parent Borrower or a Subsidiary of the
Parent Borrower that is a Guarantor having terms and conditions (including
subordination terms) reasonably satisfactory to the Administrative Agent. None
of the conditions to the respective obligations of Holding, the Parent Borrower
and the Subsidiaries to consummate the CRS Acquisition and the other
transactions contemplated by the Acquisition Agreement shall have been waived by
Holding, the Parent Borrower or any of the Subsidiaries in any material respect
without the prior written consent of the Administrative Agent.
(d) EQUITY INVESTMENT. The Administrative Agent shall have received
evidence, in form and substance reasonably satisfactory to it, that (i) Xxxxxxx,
Dubilier & Rice Fund VI Limited Partnership and (at the election of the Parent
Borrower) one or more investors arranged by CD&R shall have made a cash equity
investment in the common stock of Holding in an aggregate amount not less than
$36,500,000 (the "EQUITY INVESTMENT") and (ii) the Parent Borrower shall have
received the amount of the Equity Investment in cash by capital contribution
from Holding.
(e) TRANSACTION FEES. The fees and expenses incurred in connection
with the CRS Acquisition and the transactions contemplated hereby and thereby
shall not exceed $5,500,000 in the aggregate.
(f) FINANCIAL INFORMATION. The Lenders shall have received copies of
and shall be reasonably satisfied, in form and substance, with (i) the audited
consolidated financial statements of CRS for the 2001 fiscal year, (ii)
unaudited interim consolidated financial statements of CRS for each quarterly
period ended subsequent to the date of the latest financial statements delivered
pursuant to clause (i) of this paragraph as to which financial statements are
available, (iii) the unaudited consolidated financial statements of the Target
for the 2000 and 2001 fiscal years and (iv) a PRO FORMA consolidated balance
sheet of the Parent Borrower as at March 31, 2002, adjusted to give effect to
the CRS Acquisition, the financing contemplated hereby and transactions relating
thereto and hereto as if such transactions had occurred on such date.
(g) FINANCIAL CONDITION OF TARGET. The Lenders shall have received a
certificate of a Responsible Officer of the Parent Borrower stating that the
EBITDA of the Target for the four consecutive fiscal quarters ending December
31, 2001, after giving effect to certain
13
adjustments that are reasonably satisfactory to the Administrative Agent, shall
be at least $8,500,000 and including calculations to support such statement.
(h) MORTGAGE SUBSIDIARY. Cooperative Mortgage Services, Inc., an Ohio
corporation that, before giving affect to the CRS Acquisition, is a Subsidiary
of CRS ("CMS"), shall not, after giving effect to the CRS Acquisition, be a
consolidated subsidiary of the Parent Borrower in accordance with GAAP.
(i) CERTAIN MORTGAGE ARRANGEMENTS. The Administrative Agent shall
have received evidence reasonably satisfactory to it that the arrangements
currently in effect among CMS and one or more lenders (including Washington
Mutual Bank, FA), relating to the financing by any such lender or lenders of
mortgage loans originated or otherwise acquired by CMS (as the same may be
modified in a manner reasonably satisfactory to the Administrative Agent prior
to the consummation of the CRS Acquisition) shall continue to be in full force
and effect after the consummation of the CRS Acquisition.
(j) LENDER SATISFACTION WITH DOCUMENTATION. The Lenders shall be
reasonably satisfied with the form and substance of all documents to be executed
in connection with the CRS Acquisition and the transactions contemplated thereby
(including, without limitation, the Acquisition Agreement and each other
material Contractual Obligation relating to the CRS Acquisition to which
Holding, the Parent Borrower or any Subsidiary will become bound on the
Effective Date).
(k) NO MATERIAL ADVERSE EFFECT. Since December 31, 2001, there shall
not have been any event, occurrence, fact or change that, individually or in the
aggregate, is or would reasonably be expected to be materially adverse to the
business, operations, assets, liabilities or results of operations of the Parent
Borrower and its Subsidiaries (after giving effect to the CRS Acquisition) taken
as whole (a "MATERIAL ADVERSE EFFECT").
(l) NO MATERIAL LITIGATION. No litigation, inquiry, injunction or
restraining order shall be pending, entered or threatened that would reasonably
be expected to have a Material Adverse Effect or a material adverse effect on
the transactions contemplated hereby.
(m) CONSENTS, LICENSES AND APPROVALS. The Administrative Agent shall
have received a certificate of a Responsible Officer of the Parent Borrower
stating that all consents, authorizations, notices and filings required in
connection with this Amendment, the Incremental Tranche B Term Loan Facility,
the security, collateral and guarantees for the Incremental Tranche B Loan
Facility and the CRS Acquisition as contemplated hereby (except for (i) filings
to perfect the Liens created by the Security Documents and (ii) consents,
authorizations, notices and filings which the failure to obtain or make would
not reasonably be expected to have a Material Adverse Effect) are in full force
and effect or have the status described therein.
(n) COMPLIANCE WITH INDENTURE. The Administrative Agent shall have
received a certificate of a Responsible Officer of the Parent Borrower stating
that the making of the Incremental Tranche B Term Loans, the CRS Acquisition and
the other transactions contemplated hereby and thereby comply with the
provisions of the Senior Subordinated Note Indenture.
14
(o) NO DEFAULT. No Default or Event of Default shall have occurred
and be continuing (both before and after giving affect to the making of the
Incremental Tranche B Term Loans, the CRS Acquisition and the other transactions
contemplated hereby and thereby).
(p) LEGAL OPINIONS. The Administrative Agent shall have received the
following executed legal opinions:
(i) the executed legal opinion of Debevoise & Xxxxxxxx, special
counsel to each of Holding, the Parent Borrower and the other Loan
Parties, substantially in the form of Exhibit A-1 to this Amendment; and
(ii) the executed legal opinion of Xxxxx Xxxx, Esq., counsel to each
of Holding, the Parent Borrower and the other Loan Parties, substantially
in the form of Exhibit A-2 to this Amendment.
(q) COLLATERAL. All necessary or reasonably advisable collateral
filings shall have been duly made or taken and all necessary or reasonably
advisable amendments to the Security Documents shall have become effective, and
all Collateral shall be free and clear of all Liens, except Liens permitted by
subsection 8.3 of the Credit Agreement. The Parent Borrower and its Subsidiaries
(after giving effect to the CRS Acquisition) shall have executed all such
documents and instruments, and taken all such actions, required by subsection
7.10 of the Credit Agreement in connection with the acquisition of a Material
Subsidiary.
(r) PROJECTIONS. The Administrative Agent shall have received
projections for the Parent Borrower and its consolidated subsidiaries, after
giving effect to the CRS Acquisition, through 2007, together with a statement of
assumptions underlying such projections, in form and substance reasonably
satisfactory to the Lenders.
(s) FEES. The Administrative Agent, the Arrangers and the Lenders
shall have received all fees and expenses required to be paid or delivered by
the Parent Borrower to them on or prior to the Effective Date.
(t) BORROWING CERTIFICATE. The Administrative Agent shall have
received a certificate of the Parent Borrower, dated the Effective Date,
substantially in the form of Exhibit J to the Credit Agreement, with appropriate
insertions, attachments and modifications to reflect this Amendment, reasonably
satisfactory in form and substance to the Administrative Agent, executed by a
Responsible Officer and the Secretary or any Assistant Secretary of the Parent
Borrower.
(u) CORPORATE PROCEEDINGS OF THE LOAN PARTIES. The Administrative
Agent shall have received a copy of the resolutions, in form and substance
reasonably satisfactory to the Administrative Agent, of the Board of Directors
of each Loan Party authorizing, as applicable, (i) the execution, delivery and
performance of this Amendment, any Tranche B Term Notes, the Mortgage Amendments
and the other Loan Documents to which it is or will be a party, (ii) the
Incremental Tranche B Term Loans (and Guarantees thereof) contemplated hereunder
and (iii) the granting by it of the Liens to be created pursuant to the Security
Documents to which it is or will be a party certified by the Secretary or an
Assistant Secretary of such Loan Party as of the Effective Date, which
certificate shall be in form and substance reasonably satisfactory to the
15
Administrative Agent and shall state that the resolutions thereby certified have
not been amended, modified (except as any later such resolution may modify any
earlier such resolution), revoked or rescinded and are in full force and effect.
(v) INCUMBENCY CERTIFICATES OF THE LOAN PARTIES. The Administrative
Agent shall have received a certificate of each Loan Party, dated the Effective
Date, as to the incumbency and signature of the officers of such Loan Party
executing any Loan Document, reasonably satisfactory in form and substance to
the Administrative Agent, executed by a Responsible Officer and the Secretary or
any Assistant Secretary of such Loan Party.
(w) CORPORATE DOCUMENTS. The Administrative Agent shall have received
copies of the certificate of incorporation and by-laws of each Loan Party that
has not previously delivered such documents to the Administrative Agent,
certified as of the Effective Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of such Loan Party.
(x) AMENDMENT FEE. The Parent Borrower shall have paid to the
Administrative Agent, on behalf of each Lender which shall have executed and
delivered this Amendment to counsel to the Administrative Agent by 3:00 P.M.
(
New York City time) on April 30, 2002, an amendment fee in an amount equal to
0.125% of the sum of each such Lender's Revolving Credit Commitment and Term
Loans (other than Incremental Tranche B Term Loans) then outstanding.
The making of the Incremental Tranche B Term Loans by the relevant Lenders
hereunder shall conclusively be deemed to constitute an acknowledgement by the
Administrative Agent and each Lender that each of the conditions precedent set
forth in this Section 22 shall have been satisfied in accordance with its
respective terms or shall have been irrevocably waived by such Person.
SECTION 23. POST-CLOSING CONDITIONS; TITLE INSURANCE. This Amendment
shall remain effective so long as the requirements of Section 22 hereof have
been satisfied, and so long as, within 30 days of the date hereof, the
Administrative Agent shall have received in respect of each of the existing
mortgagee title policies (each, an "EXISTING MORTGAGEE TITLE POLICY") an
endorsement or endorsements (collectively, the "ENDORSEMENTS") or marked up
unconditional binder for the issuance of such Endorsements dated no later than
30 days after the Effective Date. Each of the Endorsements shall modify the
relevant Existing Mortgage Title Policy to (i) insure that the Mortgage insured
thereby (as amended) continues to be a valid first Lien on the Mortgaged
Property encumbered thereby free and clear of all defects and encumbrances,
except those listed on Schedule B of the Existing Mortgage Title Policies and
those permitted by subsection 8.3 of the Credit Agreement and such as may be
approved by the Administrative Agent; (ii) name the Administrative Agent for the
benefit of the Lenders, including the Lenders under the Incremental Tranche B
Term Loan Facility, as the insured thereunder; and (iii) be in form and
substance reasonably satisfactory to the Administrative Agent. The
Administrative Agent shall have received evidence reasonably satisfactory to it
that all premiums in respect of each of the Endorsements, and all charges for
mortgage recording tax, if any, have been paid. The Administrative Agent shall
have also received a copy of all recorded documents referred to, or listed as
exceptions to title in, the Endorsements referred to in this subsection and a
copy, certified by such parties as the Administrative Agent may deem
16
reasonably appropriate, of all other documents affecting the property covered by
each Mortgage as shall have been reasonably requested by the Administrative
Agent.
SECTION 24. REPRESENTATIONS AND WARRANTIES. In order to induce the
Administrative Agent and the Lenders to enter into this Amendment, the Parent
Borrower hereby represents and warrants to the Administrative Agent and the
Lenders that the representations and warranties of the Parent Borrower contained
in the Loan Documents are true and correct in all material respects on and as of
the Effective Date (after giving effect hereto) as if made on and as of the
Effective Date, except where such representations and warranties expressly
relate to an earlier date, in which case such representations and warranties
were true and correct in all material respects as of such earlier date; PROVIDED
that all references to the "Credit Agreement" and the "Guarantee and Collateral
Agreement" in any Loan Document shall be and are deemed to mean the Credit
Agreement or the Guarantee and Collateral Agreement, as the case may be, as
amended hereby.
SECTION 25. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 26. COUNTERPARTS. This Amendment may be executed by the
parties hereto in any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Amendment by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Amendment signed by all the
parties shall be lodged with the Parent Borrower and the Administrative Agent.
SECTION 27. 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 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.
SECTION 28. SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon and inure to the benefit of the Parent Borrower and its successors and
assigns, and upon the Administrative Agent and the Lenders and their respective
successors and assigns. The execution and delivery of this Amendment by any
Lender prior to the Effective Date shall be binding upon its successors and
assigns and shall be effective as to any loans or commitments assigned to it
after such execution and delivery.
SECTION 29. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. On and
after the Effective Date, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to "the Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement as
amended hereby. On and after the Effective Date, each reference in the Guarantee
and Collateral Agreement to "this Agreement", "hereunder", "hereof" or words of
like import
17
referring to the Guarantee and Collateral Agreement, and each reference in the
other Loan Documents to "the Guarantee and Collateral Agreement", "thereunder",
"thereof" or words of like import referring to the Guarantee and Collateral
Agreement, shall mean and be a reference to the Guarantee and Collateral
Agreement as amended hereby. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of any
Lender or any Agent under any of the Loan Documents. Except as expressly amended
herein, all of the provisions of the Credit Agreement, the Guarantee and
Collateral Agreement and the other Loan Documents are and shall remain in full
force and effect in accordance with the terms thereof and are hereby in all
respects ratified and confirmed.
18
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered by their respective duly authorized officers as of the
day and year first above written.
NORTH AMERICAN VAN LINES, INC.
By:
----------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as Administrative
Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered by their respective duly authorized officers as of the
day and year first above written.
NORTH AMERICAN VAN LINES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
JPMORGAN CHASE BANK, as Administrative
Agent and as a Lender
By:
----------------------------------
Name:
Title:
ARCHIMEDES FUNDING II, LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: XXXXXX XXXXXX
Title: VICE PRESIDENT &
SENIOR CREDIT ANALYST
ARCHIMEDES FUNDING III, LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: XXXXXX XXXXXX
Title: VICE PRESIDENT &
SENIOR CREDIT ANALYST
ARCHIMEDES FUNDING IV (CAYMAN), LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: XXXXXX XXXXXX
Title: VICE PRESIDENT &
SENIOR CREDIT ANALYST
NEMEAN CLO, LTD.
BY: ING Capital Advisors LLC,
as Investment Manager
BY: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: XXXXXX XXXXXX
Title: VICE PRESIDENT &
SENIOR CREDIT ANALYST
ORYX CLO, LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: XXXXXX XXXXXX
Title: VICE PRESIDENT &
SENIOR CREDIT ANALYST
Clydesdale CLO 2001-1, Ltd.
--------------------------------------
Name of Lender
NOMURA CORPORATION RESEARCH
AND ASSET MANAGEMENT INC.
AS
COLLATERAL MANAGER
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: XXXXXXX X. XXXXXXX
Title: DIRECTOR
Nomura Bond & Loan Fund
--------------------------------------
Name of Lender
By: UFJ Trust Company of
New York as Trustee
By: Nomura Corporate Research
and Asset Management Inc.
Attorney In Fact
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: XXXXXXX X. XXXXXXX
Title: DIRECTOR
By: ----------------------------------
Name:
Title:
Bank of America, N.A.
--------------------------------------
Name of Lender
By: /s/ W. Xxxxxx Xxxxxxx
----------------------------------
Name: W. Xxxxxx Xxxxxxx
Title: Managing Director
THE BANK OF
NEW YORK
--------------------------------------
Name of Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: XXXXXXX X. XXXXXXXX
Title: ASSISTANT VICE PRESIDENT
THE BANK OF NOVA SCOTIA
By: /s/ X. Xxxx
----------------------------------
Name: X. Xxxx
Title: Sr. Manager - Loan Operations
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
--------------------------------------
Name of Lender
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Vice President
Carlyle High Yield Partners III, Ltd.
--------------------------------------
Name of Lender
By: /s/ Xxxxx Xxxx
----------------------------------
Name: XXXXX XXXX
Title: PRINCIPAL
COPERNICUS EURO CDO-I B.V.
--------------------------------------
Name of Lender
ON BEHALF OF ING CAPITAL ADVISORS LLC AS
COLLATERAL MANAGER FOR COPERNICUS EURO
CDO-I B.V.
By: /s/ Xxxxx Xxxx
----------------------------------
Name: XXXXX XXXX
Title: MANAGING DIRECTOR
By: /s/ Xxxxxx Guelovani
----------------------------------
Name: XXXXXX GUELOVANI
Title: VICE PRESIDENT
Deutsche Bank Trust Company America
(f/k/a Bankers Trust Company)
--------------------------------------
Name of Lender
By: /s/ Xxxxxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxxxxx Xxxxxx
Title: Vice President
Denali Capital LLC, managing member of
DC Funding Partners LLC, portfolio
manager for DENALI CAPITAL CLO I, LTD.
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Credit Officer
Denali Capital LLC, managing member of
DC Funding Partners, portfolio
manager for DENALI CAPITAL CLO II, LTD., or an
affiliate
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Credit Officer
Flagship CLO 2001-1
--------------------------------------
Name of Lender
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------
Name: XXXX X. XXXXXXXXX
Title: DIRECTOR
Flagship CLO II
--------------------------------------
Name of Lender
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------
Name: XXXX X. XXXXXXXXX
Title: ATTORNEY-IN-FACT
Xxxxxx Financial, Inc.
--------------------------------------
Name of Lender
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Duly Authorized Signatory
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
Indosuez Capital Funding IV, L.P.,
By: RBC Leveraged Capital as Portfolio Advisor
By: /s/ Xxx X. Xxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxx
Title: Managing Director
XXXXXX XXXXXXX PRIME INCOME TRUST
--------------------------------------
Name of Lender
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Director
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Xxxxxxx Xxxxxx
AUTHORIZED SIGNATORY
DEBT STRATEGIES FUND, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Xxxxxxx Xxxxxx
AUTHORIZED SIGNATORY
LONGHORN CDO (CAYMAN) LTD
By: Xxxxxxx Xxxxx Investment Managers, L.P.
as Investment Advisor
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Xxxxxxx Xxxxxx
AUTHORIZED SIGNATORY
MASTER SENIOR FLOATING RATE TRUST
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Xxxxxxx Xxxxxx
AUTHORIZED SIGNATORY
PPM SPYGLASS FUNDING TRUST
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: XXXXX X. XXXXXXX
Title: AUTHORIZED AGENT
LANDMARK CDO LIMITED
By: Aladdin Asset Management LLC,
as Manager
/s/ Xxxx X. Xxxxxxx
--------------------------------
By: Xxxx X. Xxxxxxx
Title: Authorized Signatory
NATIONAL CITY BANK OF INDIANA
--------------------------------------
Name of Lender
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
NUVEEN FLOATING
RATE FUND
--------------------------------------
Name of Lender
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------
Name: XXXXXXXX X. XXXXX
Title: PORTFOLIO MANAGER
NUVEEN SENIOR INCOME
FUND
--------------------------------------
Name of Lender
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------
Name: XXXXXXXX X. XXXXX
Title: PORTFOLIO MANAGER
THE PROVIDENT BANK
--------------------------------------
Name of Lender
By: /s/ Xxxxxx X. Xxx
----------------------------------
Name: XXXXXX X. XXX
Title: VICE PRESIDENT
Textron Financial Corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
SCHEDULE A-1
TO CREDIT AGREEMENT
Incremental Tranche B Term Loan Commitments
Incremental Tranche B
Lender Term Loan Commitment
------ ---------------------
JPMorgan Chase Bank $ 16,666,666.66
Bank of America, N.A. $ 16,666,666.67
Deutsche Bank Trust Company Americas $ 16,666,666.67
TOTAL 50,000,000.00
=====================
ACKNOWLEDGMENT AND CONSENT
Each of the undersigned corporations as guarantors under the Guarantee
and Collateral Agreement, dated as of November 19, 1999, made by the undersigned
corporations in favor of the Administrative Agent, for the benefit of the
Lenders, hereby (a) consents to the transactions contemplated by this Amendment,
(b) consents and agrees to the amendments to the Guarantee and Collateral
Agreement set forth in this Amendment and (c) acknowledges and agrees that the
guarantees (and grants of collateral security therefor) contained in such
Guarantee and Collateral Agreement are, and shall remain, in full force and
effect after giving effect to this Amendment.
SIRVA, INC. (formerly known as Allied
Worldwide, Inc.)
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
FLEET INSURANCE MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
FRONTRUNNER WORLDWIDE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
GREAT FALLS NORTH AMERICAN, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
NACAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
NAVTRANS INTERNATIONAL FREIGHT
FORWARDING, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
NORTH AMERICAN DISTRIBUTION
SYSTEMS, INC. n/k/a FEDERAL TRAFFIC
SERVICE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
NORTH AMERICAN LOGISTICS, LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
NORTH AMERICAN VAN LINES OF TEXAS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
RELOCATION MANAGEMENT SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
A RELOCATION SOLUTIONS MANAGEMENT
COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
ALLIED FREIGHT FORWARDING, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
ALLIED VAN LINES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
ALLIED INTERNATIONAL N.A., INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
ALLIED VAN LINES TERMINAL COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
VANGUARD INSURANCE AGENCY, INC.
By: /s/ Xxxxxx X. Milewaki
----------------------------------
Name: Xxxxxx X. Milewaki
Title: Treasurer
MERIDIAN MOBILITY RESOURCES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
TGIA ACQUISITION COMPANY, LLC n/k/a
NATIONAL ASSOCIATION OF INDEPENDENT
TRUCKERS, LLC
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Treasurer
