FIFTH AMENDMENT AGREEMENT
This Fifth Amendment Agreement (this "Amendment"), dated as of
November 17, 1995, is entered into by Xxxx, Inc., a Delaware corporation
("Xxxx), State Street Bank and Trust Company of California, National
Association, a national banking association, not in an individual capacity but
solely as owner trustee ("Trustee"), and General Electric Capital Corporation
("GE Capital").
WITNESSETH:
WHEREAS, Xxxx is a party to a Sublease Agreement, dated as of
September 14, 1992, with the Trustee and an individual trustee, as owner
trustees under that certain Trust Agreement for the benefit of GE Capital (such
Sublease Agreement as amended to date, being hereinafter referred to as the "GE
Capital Sublease"); and
WHEREAS, Xxxx has requested that a definition incorporated into the GE
Capital Sublease be modified;
NOW, THEREFORE, for and in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Amendment to GE Capital Sublease. Section XVII(j) of
--------------------------------
the GE Capital Sublease is amended in its entirety to read as
follows:
(j) The provisions of Sections 5.01(c), 5.01(d) and 5.02(a)
of the Credit Agreement, dated as of April 26, 1989, among
Sublessee, the Lenders parties thereto and Citicorp USA, Inc., as
agent (after giving effect to the Tenth Amendment thereto dated as
of November 17, 1995), together with all relevant definitions
pertaining to such Sections, are incorporated herein by reference.
2. Jury Trial Waiver. EACH OF THE PARTIES HERETO HEREBY
-----------------
UNCONDITIONALLY WAIVES THEIR RESPECTIVE RIGHT TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF,
DIRECTLY OR INDIRECTLY, THIS AMENDMENT, ANY DEALINGS AMONG ANY OF
THEM RELATING TO THE SUBJECT MATTER HEREOF, AND/OR THE
RELATIONSHIP THAT IS BEING ESTABLISHED AMONG THEM. THE SCOPE OF
THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS,
AND ALL OTHER COMMON LAW AND STATUTORY
1
CLAIMS). THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AMENDMENT. IN THE EVENT OF LITIGATION, THIS
AMENDMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
3. Direction to Trustee. GE Capital hereby joins in this Amendment
--------------------
to acknowledge its consent to the terms and provisions hereof and
to direct the Trustee to enter into this Amendment and any other
agreements, instruments and documents to be executed in connection
herewith in its capacity as owner trustee.
4. Expenses. Xxxx agrees to pay all reasonable costs and expenses
--------
of the Trustee and GE Capital in connection with the preparation,
execution, delivery and enforcement of this Amendment and any
other agreements, instruments and documents executed in connection
herewith.
5. Further Assurances. Each of the parties hereto agrees that at any
------------------
time it shall execute and deliver all further instruments and
documents, and take all further action, in order to effectuate or
otherwise document the transactions contemplated hereby or
otherwise implement the intention of the parties under this
Amendment, as any of the parties hereto and their successors and
assigns reasonably may request.
6. Further Modifications. NO VARIATION OR MODIFICATION OF THIS
---------------------
AMENDMENT OR ANY WAIVER OF ANY OF ITS PROVISIONS OR CONDITIONS,
SHALL BE VALID UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF EACH OF THE PARTIES HERETO.
7. Multiple Counterparts. This Amendment may be executed in two or
---------------------
more counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of
which shall constitute one and the same instrument.
8. Tenth Amendment. A copy of the Tenth Amendment to the Credit
---------------
Agreement, referred to in Section 1 of this Amendment, is attached
hereto as Exhibit A.
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their duly authorized representatives as of the date first above
written.
Xxxx, Inc. State Street Bank and Trust Company of
California, National Association, not in its
individual capacity but solely as Corporate
By: /s/ Xxxxxxx X. Xxxxxx Trustee
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
By: /s/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
Title: Trust Officer
General Electric Capital Corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Credit Manager
3
