"this
Agreement", "hereof", "hereunder" or words of like import, and each reference in
any other Related Document to the Trust Agreement, shall mean and be a reference
to such Trust Agreement, as amended hereby.
(c) Except as expressly amended hereby, the Trust Agreement shall remain in full
force and effect and is hereby ratified and confirmed by the parties hereto.
SECTION 6.
Miscellaneous.
(a) THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN DELAWARE SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY
CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AMENDMENT OR TO ANY MATTERS
ARISING OUT OF OR RELATING TO THIS AMENDMENT, PROVIDED, THAT EACH PARTY HERETO
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF DELAWARE. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE
TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY
2
First Amendment to
Amended and Restated
Trust Agreement
SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY
MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF
AS IS DEEMED APPROPRIATE BY SUCH COURT.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS
ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON
AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN
ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A
JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO
WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO
RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AMENDMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
(d) Headings used herein are for convenience of reference only and shall not
affect the meaning of this Amendment or any provision hereof.
(e) This Amendment may be executed in any number of counterparts, and by the
parties hereto on separate counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
(f) Executed counterparts of this Amendment may be delivered electronically.
[SIGNATURES FOLLOW]
3
First Amendment to
Amended and Restated
Trust Agreement
IN WITNESS WHEREOF, the parties have caused this First Amendment to Trust
Agreement to be executed by their respective duly authorized officers as of the
date first written above.
CDF FUNDING, INC.
By:
/s/ John E. Peak
Name:
John E.