AMENDED AND RESTATED IN
ITS ENTIRETY TO READ AS SET FORTH IN SCHEDULE C TO THIS AMENDMENT.
SECTION 3.
CERTAIN CONSENTS AND WAIVERS RELATING TO ACCOUNTS.
(A)
THE BORROWER AND THE GUARANTORS EACH ACKNOWLEDGE THAT, AS OF THE
EFFECTIVE DATE, THE BORROWER OWNED ACCOUNT NO. 2370770113039 AT SMITH BARNEY, A
DIVISION OF CITIGROUP GLOBAL MARKETS, INC., NOTWITHSTANDING THE BORROWER'S AND
EACH GUARANTOR'S REPRESENTATION AND WARRANTY UNDER SECTION 4.17 OF THE CREDIT
AGREEMENT THAT EACH AND EVERY DEPOSIT ACCOUNT, SWEEP ACCOUNT LINKED THERETO AND
OTHER SECURITIES ACCOUNT OWNED OR HELD BY THE BORROWER OR ANY OF THE GUARANTORS,
EXCEPT ESCROW ACCOUNTS, PETTY CASH ACCOUNTS, PAYROLL ACCOUNTS AND ACCOUNTS
OUTSIDE THE UNITED STATES, WAS LISTED ON SCHEDULE 1.1-B, SCHEDULE 1.1-C,
SCHEDULE 1.1-D OR SCHEDULE 1.1-E TO THE CREDIT AGREEMENT. SUBJECT TO THE TERMS
AND CONDITIONS SET FORTH HEREIN, THE LENDERS HEREBY WAIVE THE BREACH DESCRIBED
IN THE FOREGOING SENTENCE AND ANY EVENT OF DEFAULT UNDER SECTION 7.1(B) OF THE
CREDIT AGREEMENT ON ACCOUNT OF SUCH BREACH.
(B)
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, THE LENDERS:
(I)
CONSENT TO THE CLOSURE, NOT LATER THAN THE FIFTH BUSINESS DAY
AFTER THE DATE HEREOF, OF EACH OF THE DEPOSIT OR SECURITIES ACCOUNTS LISTED ON
SCHEDULE D HERETO (THE "CLOSED ACCOUNTS"), IN EACH CASE BY THE BORROWER OR THE
GUARANTOR THAT OWNS SUCH ACCOUNT, AND TO THE CLOSURE BY THE BORROWER OF THE
RESERVE PRIMARY FUND ACCOUNT AS SOON AS THE BORROWER IS ABLE TO DO SO; AND
(II)
WAIVE, IN RESPECT OF EACH OF THE CLOSED ACCOUNTS AND, SOLELY
UNTIL APRIL 30, 2009, THE RESERVE PRIMARY FUND ACCOUNT, THE REQUIREMENT SET
FORTH IN SECTION 4(J)(VII) OF THE SECURITY AGREEMENT, AND THE CONDITION SET
FORTH IN SECTION 3.1(A)(IX) OF THE CREDIT AGREEMENT, AS TO THE DELIVERY OF AN
ACCOUNT CONTROL AGREEMENT IN RESPECT OF SUCH ACCOUNT.
4
(C)
THE WAIVERS AND CONSENTS SET FORTH IN THIS SECTION 3 EACH SHALL BE
EFFECTIVE ONLY IN THIS SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE FOR WHICH
THEY ARE GIVEN, AND NONE OF SUCH WAIVERS AND CONSENTS SHALL ENTITLE THE BORROWER
OR ANY GUARANTOR TO ANY OTHER OR FURTHER WAIVER OR CONSENT IN ANY SIMILAR OR
OTHER CIRCUMSTANCES.
SECTION 4.
CONDITIONS PRECEDENT TO EFFECTIVENESS.
THIS AMENDMENT SHALL BECOME
EFFECTIVE WHEN THE AGENT HAS RECEIVED EACH OF THE FOLLOWING, EACH IN FORM AND
SUBSTANCE REASONABLY ACCEPTABLE TO THE AGENT AND EACH OF THE LENDERS:
(A)
THIS AMENDMENT, DULY EXECUTED BY A DULY AUTHORIZED OFFICER (OR
OFFICERS) OF THE BORROWER, EACH OF THE GUARANTORS, THE AGENT AND THE LENDERS;
(B)
AN AMENDMENT TO THE AGENCY AGREEMENT, DULY EXECUTED BY A DULY
AUTHORIZED OFFICER (OR OFFICERS) OF EACH OF THE PARTIES THERETO;
(C)
AN OFFICER'S CERTIFICATE;
(D)
A CERTIFICATE OF GOOD STANDING FOR HOLDINGS IN THE JURISDICTION OF
ITS INCORPORATION AND A CERTIFICATE OF MERGER REFLECTING THE INITIAL DELTA
MERGER, CERTIFIED BY THE APPROPRIATE GOVERNMENTAL OFFICIALS AS OF A DATE
ACCEPTABLE TO THE AGENT; AND
(E)
PAYMENT OF THE FEE REFERRED TO IN SECTION 5 BELOW FOR EACH