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EXHIBIT 99.5
AMENDMENT NO. 2 TO THE DELL COMPUTER CORPORATION TRUST AGREEMENT
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AMENDMENT NO. 2 TO THE
DELL COMPUTER CORPORATION
TRUST AGREEMENT
THIS AMENDMENT is made as of the 1st day of January, 2001 by and
between DELL COMPUTER CORPORATION, a Texas corporation, (the "Sponsor"), and THE
CHASE MANHATTAN BANK (the "Trustee") and amends the Trust Agreement, effective
April 1, 1996, between the Sponsor and The Chase Manhattan Bank, N.A., a
predecessor corporation of the Trustee;
WHEREAS, the Sponsor and the Trustee desire to amend the Trust pursuant
to the authority reserved in Section 17;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows.
1. Section 4(b) of the Trust is hereby amended, as underlined, to be
and read as follows:
"(b) Available Investment Options. The Administrator shall direct the
Trustee as to the investment options which shall be maintained or used
for Plan participant investments. The Administrator may determine to
offer investment options in its sole discretion, including, without
limitation, any investment option comprising one or more Directed
Funds. Nevertheless, each investment option for which daily valuation
is offered shall be limited to, (i) securities issued by any one
investment company registered under the Investment Company Act of 1940
("Mutual Funds"), (ii) equity securities issued by the Sponsor or an
affiliate which are publicly-traded and which are "qualifying employer
securities" within the meaning of Section 407(d)(5) of ERISA ("Sponsor
Stock"), (iii) notes evidencing loans to Plan participants in
accordance with the terms of the Plan, (iv) units in a single
collective investment fund maintained by the Trustee, an Investment
Manager, or an affiliate of an Investment Manager for qualified plans,
(v) a Directed Fund consisting of one or more of the following: (A)
guaranteed investment contracts ("GICs"), (B) a portfolio of securities
and obligations that is intended to produce a fixed rate of investment
return, including, but not limited to, United States government
securities, corporate bonds, notes, debentures, convertible securities,
preferred stocks and is held by one or more of the following (I) an
insurance company separate account, (II) a custodian appointed by an
insurance company or (III) a custodian appointed by an Investment
Manager, and (C) interests in collective investment funds maintained by
banks or other financial institutions which invest in such securities
and obligations and other similar investments, in each case as chosen
by the Administrator or an Investment Manager, (the "Fixed Income
Fund"), and (vi) such other portfolios of securities for which the
Trustee is willing to provide daily valuation, subject to terms and
conditions acceptable to the Trustee. The Administrator shall also be
responsible for determining from time to time the portion of the Dell
Computer
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Corporation Stock Fund that is held in cash or a short term investment
fund. The Trustee shall be considered a fiduciary with investment
discretion only with respect to Plan assets that are invested in short
term investment funds maintained by the Trustee for qualified plans,
including such short term investment funds held in the Dell Computer
Corporation Stock Fund."
2. Section 4(d) of the Trust is hereby amended by adding the following
sentence at the end of the first paragraph thereof.
"Pursuant to the procedures established by the Sponsor, the Subtransfer
Agent shall be responsible for receiving instructions from participants
with respect to the investment of their individual accounts,
aggregating such instructions, and either directing the Trustee to
place net purchase and redemption orders with respect to each
investment option selected for the Plan or, when applicable, placing
such orders itself, as the case may be."
3. Section 4(d) of the Trust is further hereby amended by adding the
following new paragraphs as the last two paragraphs thereof.
"Pursuant to the procedures established by the Sponsor, the Subtransfer
Agent shall have the power and authority to issue orders for the
purchase or sale of securities directly to a Mutual Fund or a
collective investment fund maintained by a bank or financial
institution other than the Trustee. Written or electronic notification
of the issuance of each such order shall be given promptly to the
Trustee by the Subtransfer Agent, and the confirmation of each such
order shall be confirmed to the Trustee by the Mutual Fund, or
collective fund. Unless otherwise directed by the Administrator, such
notification shall be authority for the Trustee to pay for securities
purchased or to deliver securities sold as the case may be. Upon the
direction of the Subtransfer Agent, pursuant to the procedures
established by the Sponsor, the Trustee will execute and deliver
appropriate trading authorizations, but no such authorization shall be
deemed to increase the liability or responsibility of the Trustee under
this Agreement.
The Subtransfer Agent shall at all times be deemed to be
acting as agent of the Sponsor or the Administrator and not as agent of
the Trustee. The Trustee shall have no responsibility to oversee the
performance by the Subtransfer Agent of its responsibilities with
respect to the Plan and shall not be liable for any act or omission of
the Subtransfer Agent. The Sponsor shall indemnify and save harmless
the Trustee for and from any loss, claim or expense (including
reasonable attorneys' fees) arising by reason of any breach of any
statutory or other duty owed to the Plan by the Subtransfer Agent."
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4. Section 4(i) of the trust is hereby amended in its entirety as follows:
(i) Trustee Powers. The Trustee shall have the following powers
and authority:
(i) to invest in any property, real or personal, or part interest
therein, wherever situated, excluding currency but including,
without limitation, governmental, corporate or personal
obligations, trust and participation certificates, partnership
interests, interest in limited liability companies and similar
entities, annuity or investment contracts issued by an
insurance company, leaseholds, fee titles, mortgages and other
interests in realty, preferred and common stocks, certificates
of deposit, financial options and futures or any other form of
option, evidences of indebtedness or ownership in foreign
corporations or other enterprises or indebtedness or
ownership, including securities or other property of the
Sponsor, even though the same may not be legal investment for
trustees under any law other than ERISA;
(ii) to sell, exchange, convey, transfer, or otherwise dispose of
any property held in the Trust, by private contract or at
public auction. No person dealing on behalf of the Sponsor
with the Trustee shall be bound to see to the application of
the purchase money or other property delivered to the Trustee
or to inquire into the validity, expediency, or propriety of
any such sale or other disposition;
(iii) to cause any securities or other property held as part of the
Trust to be registered in the Trustee's own name, in the name
of one or more of its nominees, or in the Trustee's account
with the Depository Trust Company of New York or any other
securities depository and to hold any investments in bearer
form, but the books and records of the Trustee shall at all
times show that all such investments are part of the Trust;
(iv) to make, execute, acknowledge, and deliver any and all
documents of transfer or conveyance and to carry out the
powers herein granted;
(v) to settle, compromise, or submit to arbitration any claims,
debts, or damages due to or arising from the Trust; to
commence or defend suits or legal or administrative
proceedings; to represent the Trust in all suits and legal and
administrative hearings; and to pay all reasonable expenses
arising from any such action, from the Trust if not paid by
the Sponsor;
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(vi) to employ, subject to the approval of the Sponsor, which shall
not be unreasonably withheld, legal, accounting, clerical, and
other assistance as may be required in carrying out the
provisions of this Agreement and to pay their reasonable
expenses and compensation from the Trust if not paid by the
Sponsor;
(vii) to lend pursuant to separate agreement as may be agreed upon
any securities to brokers or dealers and to secure the same in
any manner, and during the term of any such loan to permit the
loaned securities to be transferred into the name of and voted
by the borrower or others;
(viii) to enter into contracts or to make commitments either alone or
in company with others to sell or acquire property;
(ix) to purchase or sell, write, or issue, puts, calls or other
options, covered of uncovered, to enter into financial futures
contracts, forward placement contracts and standby contracts,
and in connection therewith, to deposit, hold or pledge
assets;
(x) to purchase part interests in real property or in mortgages on
real property, wherever such real property may be situated;
(xi) to lease to others for any term without regard to the duration
of the Trust any real property or part interest in real
property; to delegate to a manager or the holder or holders of
a majority interest in any real property or mortgage on real
property or in any oil, mineral or gas properties, the
management and operation of any part interest in such property
or properties (including the authority to sell such part
interests or otherwise carry out the decisions of such manager
or the holder or holders of such majority interest);
(xii) to vote upon any stocks, bonds or other securities (but
subject to the suspension of any voting rights as a result of
any broker loan or similar agreement and subject, further, to
the provisions of the Plan and this Agreement with respect to
shares of Sponsor Stock); to give general or special proxies
or powers of attorney with or without power of substitution;
to exercise any conversion privileges, subscription rights or
other options and to make any payments incidental thereto; to
consent to or otherwise
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participate in corporate reorganizations or other changes
affecting corporate securities and to delegate discretionary
powers and to pay any assessments or charges in connection
therewith; and generally to exercise any of the powers of an
owner with respect to stocks, bonds, securities or other
property;
(xiii) to organize corporations under the laws of any state for the
purpose of acquiring or holding title to property or to
appoint an ancillary trustee acceptable to the Trustee for
such purpose;
(xiv) to invest in a fund consisting of securities issued by
corporations and selected and retained solely because of their
inclusion in, and in accordance with, one or more commonly
used indices of such securities, with the objective of
providing investment results for the fund which approximate
the overall performance of such designated index;
(xv) to enter into any partnership, as a general or limited
partner, or joint ventures;
(xvi) to purchase units or certificates issued by an investment
company or pooled trust or comparable entity;
(xvii) to transfer money or other property to an insurance company
issuing an insurance contract or to a financial institution
pursuant to an investment agreement;
(xviii) to transfer assets to a common, collective or commingled trust
fund exempt from tax under the Code maintained by the Trustee,
an Investment Manager or an affiliate of an Investment
Manager, or by another trustee, to be held and invested
subject to all of the terms and conditions thereof, and such
trust shall be deemed adopted as part of the Trust and the
Plan to the extent that assets of the Trust are invested
therein;
(xix) to be reimbursed for the expenses incurred in exercising any
of the foregoing powers or to pay the reasonable expenses
incurred by any agent, manager or trustee appointed pursuant
hereto to the extent permitted by the Plan;
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(xx) to borrow money on behalf of the Trust, and to pledge assets
of the Trust as security therefore, for any purpose deemed
necessary to the normal administration of the Trust; and
(xxi) to hold part or all of the Trust uninvested to the extent that
the directing party ascertains as reasonable and necessary for
limited periods of time;
(xxii) to invest at the Trustee (i) in any type of interest bearing
investments (including, but not limited to savings accounts,
money market accounts, certificates of deposit and repurchase
agreements) and (ii) in non-interest bearing accounts
(including, but not limited to checking accounts); and
(xxiii) to do, subject to the consent of the Sponsor, which shall not
be unreasonably withheld, all other acts although not
specifically mentioned herein, as the Trustee may deem
necessary to carry out any of the foregoing powers and the
purposes of the Trust.
The Trustee may exercise the powers set forth in clauses (iii) and (iv)
in its discretion. The Trustee shall exercise the powers set forth in
the remaining clauses of this subsection (i) in its discretion to the
extent, if any, that it has express investment management
responsibility under this Agreement and (ii) in any case where the
Trustee does not have express investment management responsibility
under this Agreement, upon discretion from an Investment Manager acting
under Section 20 or the Administrator or the Sponsor to the extent
contemplated by this Agreement.
5. Section 7(b) of the Trust is hereby amended by deleting the first
sentence thereof and substituting in lieu thereof the following:
"The Sponsor shall indemnify the Trustee against, and hold the
Trustee harmless from, any and all loss, damage, penalty, liability,
cost, and expense, including without limitation, reasonable
attorney's fees and disbursements ("Losses"), that may be incurred
by, imposed upon, or asserted against the Trustee by reason of any
third party claim, regulatory proceeding, or litigation arising from
any act done or omitted to be done by any individual or person,
including without limitation the Administrator, Subtransfer Agent,
Sponsor and any Investment Manager, with respect to the Plan or
Trust, including without limitation the selection of GICs and
similar investments by the Sponsor, excepting only any and all
Losses to the extent that such Losses arise from the Trustee's
failure to perform in accordance with the Trust Agreement, except to
the extent the Trustee's non-performance is permitted under ERISA."
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6. Section 7 of the Trust is further amended by renaming Section 7
"Directions, Indemnification and Limitation of Liability, renominating the
current text of Subsection 7(c) as 7(d) and adding the following as Subsection
7(c).
"(c) Except as otherwise required by ERISA, under no
circumstances shall the Trustee incur liability for any indirect,
consequential or special damages (including, without limitation, lost
profits) of any form incurred by any person, whether or not foreseeable
and regardless of the form of the action in which such a claim may be
brought, with respect to the Trust or its role as Trustee."
7. The Trust is hereby amended by adding new Section 20 to the end
thereof, to be and read as follows:
"SECTION 20 DIRECTED FUNDS.
(a) General. The Administrator, from time to time and in
accordance with provisions of the Plan, may direct to the Trustee to
establish one or more separate accounts within the trust fund, each
separate account being hereinafter referred to as a "Directed Fund,"
and to allocate a portion of the assets held in the trust fund to such
Directed Fund. As soon as administratively feasible (in accordance with
the Trustee's customary operating procedures) following receipt of such
written direction, the Trustee shall transfer to a Directed Fund those
assets of the trust fund in accordance with such directions. The
Administrator also may direct the Trustee to eliminate one or more
Directed Funds, and the Trustee shall thereupon dispose of the assets
of any such Directed Fund and reinvest the proceeds in accordance with
the directions of the Administrator. The Trustee shall be under no duty
to question, and shall not incur any liability on account of following,
any direction of the Administrator with respect to the establishment or
elimination of any Directed Fund or the allocation or transfer of
securities or other property between or among any Directed Funds.
All interest, dividends and other income received with respect
to, and any proceeds received from the sale, exchange, or other
disposition of, securities or other property held in a Directed Fund
shall be credited to and reinvested in that Directed Fund. All expenses
of the Trust Fund which are allocable to a particular Directed Fund
shall be so allocated and charged
(b) Investment Managers. The Administrator, from time to time
and in accordance with the provisions of the Plan, may appoint one or
more investment managers, each of which shall satisfy the
qualifications set forth in Section 3(38) of ERISA, or any successor
thereto (each an "Investment Manager"), under a written investment
management agreement describing the powers and duties of the Investment
Manager, to direct the investment and reinvestment of all or a
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portion of a Directed Fund. The Administrator shall be responsible for
ensuring that the investment management agreement for each Investment
Manager shall expressly outline the rights, duties and discretionary
powers which shall be delegated to such Investment Manager; provided,
however, that such rights shall not exceed the rights granted to the
Trustee under Section 4(i) hereof. The Administrator shall be
responsible for ascertaining that, while each Investment Manager is
acting in that capacity, that Investment Manager satisfies the
requirements of Section 3(38) of ERISA, or any successor thereto. The
Administrator shall furnish the Trustee with written notice of the
appointment of each Investment Manager hereunder, and of the
termination of any such appointment. Such notice shall specify the
assets which shall constitute the Directed Fund. The Trustee shall be
fully protected in relying upon the effectiveness of such appointment
and the Investment Manager's continuing satisfaction of the
requirements set forth above until it receives written notice from the
Administrator to the contrary.
Unless the Trustee has actual notice that an Investment
Manager has resigned or been removed, the Trustee shall presume that
each Investment Manager, pursuant to the terms of its investment
management agreement, is entitled to act, in directing the investment
and reinvestment of the Directed Fund for which it is responsible, in
its sole and independent discretion and without limitation.
(c) Investment Vehicles. Any Investment Vehicle, or interest
therein, acquired by or transferred to the Trustee upon the directions
of the Investment Manager shall be allocated to a designated Directed
Fund, and the Trustee's duties and responsibilities under this
Agreement shall not be increased or otherwise affected thereby. The
Trustee shall be responsible solely for the safekeeping of the physical
evidence, if any, and reporting of the Trust's ownership of or interest
or participation in such Investment Vehicle.
(d) Duty of Care. In exercising any of the powers delegated
under this Section, an Investment Manager shall discharge its duties
hereunder with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of like character and with like aims, consistent with the
requirements of ERISA.
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(e) Certain Orders to Brokers. Except as otherwise provided in
this Agreement, the Investment Manager of a Directed Fund shall have
the power and authority to be exercised in its sole discretion at any
time and from time to time, to issue orders for the purchase or sale of
securities or other property directly to a broker. Written directions
with respect to the issuance of each such order shall be given promptly
to the Trustee by the Investment Manager or the Administrator and the
confirmation of each such order shall be confirmed to the Trustee by
the broker. Unless otherwise directed by the Administrator or
Investment Manager, such direction shall be authority for the Trustee
to pay for securities or other property purchased or to deliver
securities or other property sold as the case may be. Upon direction
from the Investment Manager or the Administrator, the Trustee will
execute and deliver appropriate trading authorizations, but no such
authorization shall be deemed to increase the liability or
responsibility of the Trustee under this Agreement.
(f) Limitations on Trustee Responsibility.
(1) Trustee Not Responsible for Investments in
Directed Funds. The Trustee shall be under no duty or
obligation to review or to question any direction of any
Investment Manager, or to review securities or any other
property held in any Directed Fund with respect to prudence or
proper diversification or compliance with any limitation on
the Investment Manager's authority under this Agreement or the
Plan, any agreement entered into between the Sponsor or the
Administrator and the Investment Manager or imposed by
applicable law, or to make any suggestions or recommendation
to the Sponsor, the Administrator or the Investment Manager
with respect to the retention or investment of any assets of
any Directed Fund, and shall have no authority to take any
action or to refrain from taking any action with respect to
any asset of a Directed Fund unless and until it is directed
to do so by the Investment Manager.
The Sponsor shall limit, restrict or impose
guidelines affecting the exercise of the discretion conferred
on any Investment Manager. The limitations, restrictions or
guidelines applicable to the Trustee, as Investment Manager,
shall be communicated in writing to the Trustee. The Trustee
shall have no responsibility with respect to the formulation
of any funding policy or any investment or diversification
policies embodied therein. The Sponsor or the Administrator
shall be responsible for communicating, and monitoring
adherence to, any limitations or guidelines imposed on any
other Investment Manager by the guidelines described above.
(2) Responsibility for Directed Funds. All
transactions of any kind or nature in or from a Directed Fund
shall be made upon such terms and conditions and from or
through such brokers, dealers and other principals and agents
as the Investment Manager shall direct. Unless
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specifically agreed to by the Trustee, no such transactions
shall be executed through the facilities of the Trustee except
where the Trustee shall make available its facilities solely
for the purpose of temporary investment of cash reserves of a
Directed Fund. (However, nothing in the preceding sentence
shall confer any authority upon the Trustee to invest the cash
balances of any Directed Fund unless and until it receives
directions from the Investment Manager.)
(3) Reliance on Investment Manager. The Trustee shall
be required under this Agreement to execute documents, to
settle transactions, to take action on behalf of or in the
name of the Trust and to make and receive payments on the
direction of the Investment Manager. The Trustee may rely on
the direction of the Investment Manager (i) that the
transaction is in accord with applicable law, (ii) that any
contract, agency, joinder, adoption, participation or
partnership agreement, deed, assignment or other document of
any kind which the Trustee is requested or required to execute
to effectuate the transaction has been reviewed by the
Investment Manager and, to the extent it deems advisable and
prudent, its counsel, (iii) that such instrument or document
is in proper form for execution by the Trustee, (iv) that,
where appropriate, insurance protecting the Trust against loss
or liability has been or will be maintained in the name of or
for the benefit of the Trustee, and (v) that all other acts to
perfect and protect the Trust's rights have been taken, and
the Trustee shall have no duty to make any independent inquiry
or investigation as to any of the foregoing before acting upon
such direction. In addition, the Trustee shall not be liable
for the default of any Person with respect to any Investment
Vehicle or any investment in a Directed Fund or for the form,
genuineness, validity, sufficiency or effect of any document
executed by, delivered to or held by it for any Directed Fund
on account of such investment, or if, for any reason (other
than the negligence or willful misconduct of the Trustee) any
rights of the Trust therein shall lapse or shall become
unenforceable or worthless.
(4) Merger of Funds. The Trustee shall not have any
discretionary responsibility or authority to manage or control
any asset held in a Directed Fund upon the resignation or
removal of an Investment Manager. The Trustee shall not be
liable for any losses to the Directed Fund resulting from the
disposition of any investment made by the Investment Manager
or for the retention of any illiquid or unmarketable
investment or any investment which is not widely publicly
traded or for the holding of any other investment acquired by
the Investment Manager if the Trustee is unable to dispose of
such investment because of any restrictions imposed by the
Securities Act of 1933 or other federal or state law, or if an
orderly liquidation of such investment is impractical under
prevailing conditions, or for failure to comply with any
investment limitations imposed pursuant to Section 4, or for
any other, violation of the
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terms of this Agreement, the Plan or applicable law as a
result of the addition of Directed Fund assets to the other
investment funds maintained under the Trust Fund.
(5) Duty to Enforce Claims. The Trustee shall have no
duty to commence or maintain any action, suit or legal
proceeding on behalf of the Trust on account of or growing out
of any investment made in or for a Directed Fund unless the
Trustee has been directed to do so by the Investment Manager
or the Company and unless the Trustee is either in possession
of funds sufficient for such purpose or unless it has been
indemnified to its satisfaction for counsel fees, costs and
other expenses and liabilities to which it, in its sole
judgment, may be subjected by beginning or maintaining such
action, suit or legal proceeding.
(6) Limitations on Transfers. Nothing herein shall be
deemed to empower any Investment Manager to direct the Trustee
to transfer any asset of a Directed Fund to itself except for
purposes of the payment of its fee if such means of payment is
permitted by its investment management agreement.
(7) Notification to the Sponsor. If officers of the
Trustee engaged in an ongoing basis in the servicing of the
Trust Fund have actual knowledge that an Investment Manager
has breached its fiduciary duty hereunder, it shall promptly
notify the Sponsor of such breach."
7. The Trust is hereby amended by adding new Section 21 at the end
thereof, to be and read as follows.
"Section 21. Valuation of the Trust Fund.
The Trustee shall determine the fair market value or fair
value of securities or other property held in the Trust Fund based upon
one or more of the following: information and financial publications of
general circulation, statistical and valuation services, records of
security exchanges, appraisals by qualified Persons, transactions and
bona fide offers in assets of the type in question, valuations provided
by Investment Managers, valuations provided by the insurance company or
custodian holding custody of assets described in clause (v)(B) of
Section 4(b), and other information customarily used in the valuation
of property. The Trustee may retain one or more reputable pricing
services (whether or not affiliated with the Trustee) as the Trustee
may deem advisable and the Trustee shall be entitled to rely upon the
prices so provided. The Trustee, upon written request by the Sponsor,
shall provide information to the Sponsor concerning the qualifications
of such pricing services. Provided that the Trustee acts with the care,
skill, prudence and diligence that a prudent person acting in a like
capacity and familiar with such matter would exercise in selecting such
a pricing service, the Trustee shall not be responsible or liable for
any act or omission of such pricing service. An
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Investment Manager shall certify, at the request of the Trustee, the
value of any securities or other property held in any Directed Fund
managed by such Investment Manager, and such certification shall be
regarded as a direction with regard to such valuation. The Trustee
shall be entitled to rely upon such valuation for all purposes under
this Agreement.
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IN WITNESS WHEREOF, the Sponsor and the Trustee have caused this
Amendment to be executed and their respective corporate seals to be affixed and
arrested by their respective corporate officers on the day and year first
written above.
DELL COMPUTER CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Its: Director of Global Benefits
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ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Corporate Counsel
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THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. WASP
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Its: Vice President
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ATTEST:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Its: Vice President
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