FULL FORCE
AND EFFECT.
SECTION 5.
EFFECTIVE DATE.
THIS WAIVER AND AMENDMENT SHALL BECOME EFFECTIVE ON
THE FIRST BUSINESS DAY (THE "EFFECTIVE DATE") FOLLOWING THE LATER OF: (A) THE
DATE THE AGENT OR ITS COUNSEL HAS RECEIVED COUNTERPART SIGNATURES OF THIS WAIVER
AND AMENDMENT, EXECUTED BY EACH OF THE PARTIES HERETO; AND (B) THE OCCURRENCE OF
EACH OF THE FOLLOWING:
(A)
THE BANKRUPTCY COURT SHALL HAVE ENTERED THE COURT ORDER,
SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT B, PROVIDED THAT THE COURT
ORDER MUST BE (X)
9
SATISFACTORY TO THE AGENT IN ALL RESPECTS AND (Y) SATISFACTORY TO EACH PURCHASER
IN ALL MATERIAL RESPECTS.
(B)
JPMORGAN CHASE BANK, N.A., IN ITS CAPACITY AS ADMINISTRATIVE AGENT
UNDER EACH OF THE SIRVA CREDIT AGREEMENT AND THE DIP FINANCING AGREEMENT (AS
SUCH TERM IS DEFINED HEREIN) (IN SUCH CAPACITY, THE "ADMINISTRATIVE AGENT"),
SHALL HAVE CONFIRMED THE EXISTING LIEN CARVE-OUT AND TURNOVER OBLIGATIONS OF THE
ADMINISTRATIVE AGENT AND THE LENDERS UNDER THE SIRVA CREDIT AGREEMENT (THE
"SIRVA LENDERS") UNDER THAT CERTAIN APPROVAL AND RELEASE DATED AS OF
SEPTEMBER 28, 2007, INCLUDING WITH RESPECT TO ANY ADEQUATE PROTECTION LIENS THE
SIRVA LENDERS MAY RECEIVE IN THE CHAPTER 11 PROCEEDINGS, AND SHALL HAVE EXECUTED
AN APPROVAL AND RELEASE WITH SUBSTANTIALLY IDENTICAL LIEN RELEASE AND TURNOVER
PROVISIONS IN FAVOR OF THE AGENT AND THE PURCHASERS IN CONNECTION WITH THE DIP
FINANCING AGREEMENT.
(C)
THE BANKRUPTCY COURT SHALL HAVE APPROVED THE TERMS OF THE DIP
FINANCING AGREEMENT ON AN INTERIM BASIS AND ON TERMS ACCEPTABLE TO THE AGENT AND
THE PURCHASERS, AND THE LENDING COMMITMENTS FOR THE EXIT FINANCING FACILITY (AS
SUCH TERM IS DEFINED HEREIN) SHALL BE ACCEPTABLE TO THE AGENT AND THE
PURCHASERS.
(D)
THE SELLER SHALL HAVE PAID ALL UNPAID FEES AND EXPENSES OF LEGAL
COUNSEL AND OTHER PROFESSIONALS RETAINED BY THE AGENT AND THE PURCHASERS
INCURRED IN THE NEGOTIATION, EXECUTION AND DELIVERY OF THIS WAIVER AND
AMENDMENT, AND OTHERWISE IN ACCORDANCE WITH THE TERMS OF THE RECEIVABLES SALE
AGREEMENT, NO LATER THAN ONE (1) BUSINESS DAY PRIOR TO THE PETITION DATE.
(E)
THE SELLER SHALL HAVE PAID ALL FEES PAYABLE TO THE AGENT (FOR
ITSELF AND FOR THE RATABLE BENEFIT OF THE PURCHASERS) PURSUANT TO THE LETTER
AGREEMENT EXECUTED IN CONNECTION HEREWITH.
(F)
AT LEAST TWO-THIRDS IN AMOUNT AND MORE THAN ONE-HALF IN NUMBER OF
THE SIRVA LENDERS THAT VOTE SHALL HAVE VOTED IN FAVOR OF CONFIRMATION OF THE
PLAN OF REORGANIZATION.
(G)
THE AGENT AND THE PURCHASERS SHALL HAVE SATISFACTORILY COMPLETED
ALL DUE DILIGENCE AND RECEIVED ALL REQUIRED INTERNAL APPROVALS, AND NO MATERIAL
ADVERSE CHANGE SHALL HAVE OCCURRED BETWEEN FEBRUARY 1, 2008 AND THE EFFECTIVE
DATE WITH RESPECT TO (A) THE INTERESTS OF THE AGENT AND THE PURCHASERS UNDER OR
IN CONNECTION WITH ANY TRANSACTION DOCUMENT, (B) THE ENFORCEABILITY OR
COLLECTIBILITY OF THE RECEIVABLES, OR (C) THE BUSINESS AND OPERATIONS OF SIRVA,
OTHER THAN ANY MATERIAL ADVERSE CHANGE RESULTING FROM THE COMMENCEMENT OF THE
CHAPTER 11 PROCEEDINGS, THE OCCURRENCE OF CROSS-DEFAULTS UNDER OTHER AGREEMENTS
AS A RESULT THEREOF, THE OCCURRENCE OF