Exhibit (g)(5)
AMENDMENT TO CUSTODIAN CONTRACT
This Amendment to the Custodian Contract is made as of October 30, 1998,
by and between CGM Trust (the "Fund") and State Street Bank and Trust Company
(the "Custodian"). Capitalized terms used in this Amendment without definition
shall have the respective meanings given to such terms in the Custodian
Contract referred to below.
WHEREAS, the Fund and the Custodian entered into a Custodian Contract
dated as of March 6, 1992 (as amended and in effect from time to time, the
"Contract"); and
WHEREAS, the Fund is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets, and the Fund has made CGM Fixed Income Fund subject to the
Contract (each such series, together with all other series subsequently
established by the Fund and made subject to the Contract in accordance with the
terms thereof, shall be referred to as a "Series", and, collectively, the
"Series"); and
WHEREAS, the Fund and the Custodian desire to amend certain provisions of
the Contract to reflect revisions to Rule 17f-5 ("Rule 17f-5") promulgated
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund and the Custodian desire to amend and restate certain
other provisions of the Contract relating to the custody of assets of the
Series held outside of the United States.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter contained, the parties hereby agree to amend the
Contract, pursuant to the terms thereof, as follows:
I. The amendment to the Contract relating to foreign custody dated as of
April 16, 1992 is hereby deleted.
II. Articles 3 through 14 of the Contract are hereby renumbered, as of the
effective date of this Amendment, as Articles 5 through 16, respectively.
III. New Articles 3 and 4 of the Contract are hereby added, as of the effective
date of this Amendment, as set forth below.
3. THE CUSTODIAN AS FOREIGN CUSTODY MANAGER.
3.1. DEFINITIONS.
Capitalized terms in this Article 3 shall have the following meanings:
"Country Risk" means all factors reasonably related to the systemic risk
of holding Foreign Assets in a particular country including, but not limited
to, such country's political environment; economic and financial infrastructure
(including any Mandatory Securities Depositories operating in the country);
prevailing or developing custody and settlement practices; and laws and
regulations applicable to the safekeeping and recovery of Foreign Assets held
in custody in that country.
"Eligible Foreign Custodian" has the meaning set forth in section (a)(1)
of Rule 17f-5, including a majority-owned or indirect subsidiary of a U.S. Bank
(as defined in Rule 17f-5), a bank holding company meeting the requirements of
an Eligible Foreign Custodian (as set forth in Rule 17f-5 or by other
appropriate action of the U.S. Securities and Exchange Commission (the "SEC")),
or a foreign branch of a Bank (as defined in Section 2(a)(5) of the 0000 Xxx)
meeting the requirements of a custodian under Section 17(f) of the 1940 Act,
except that the term does not include Mandatory Securities Depositories.
"Foreign Assets" means any of the Series' investments (including foreign
currencies) for which the primary market is outside the United States and such
cash and cash equivalents as are reasonably necessary to effect the Series'
transactions in such investments.
"Foreign Custody Manager" has the meaning set forth in section (a)(2) of
Rule 17f-5.
"Mandatory Securities Depository" means a foreign securities depository or
clearing agency that, either as a legal or practical matter, must be used if
the Fund, on the Series' behalf, determines to place Foreign Assets in a
country outside the United States (I) because required by law or regulation;
(ii) because securities cannot be withdrawn from such foreign securities
depository or clearing agency; or (iii) because maintaining or effecting trades
in securities outside the foreign securities depository or clearing agency is
not consistent with prevailing or developing custodial or market practices.
3.2. DELEGATION TO THE CUSTODIAN AS FOREIGN CUSTODY MANAGER.
The Fund, by resolution adopted by its Board of Trustees (the "Board"),
hereby delegates to the Custodian, with respect to the Series, subject to
Section (b) of Rule 17f-5, the responsibilities set forth in this Article 3
with respect to Foreign Assets of the Series held outside the United States,
and the Custodian hereby accepts such delegation, as Foreign Custody Manager
with respect to the Series.
3.3. COUNTRIES COVERED.
The Foreign Custody Manager shall be responsible for performing the
delegated responsibilities defined below only with respect to the countries and
custody arrangements for each such country listed on Schedule A to this
Contract, which list of countries may be amended from time to time by the Fund
with the agreement of the Foreign Custody Manager. The Foreign Custody Manager
shall list on Schedule A the Eligible Foreign Custodians selected by the
Foreign Custody Manager to maintain the assets of the Series which list of
Eligible Foreign Custodians may be amended from time to time in the sole
discretion of the Foreign Custody Manager. Mandatory Securities Depositories
are listed on Schedule B to this Contract, which Schedule B may be amended from
time to time by the Foreign Custody Manager. The Foreign Custody Manager will
provide amended versions of Schedules A and B in accordance with Section 3.7 of
this Article 3.
Upon the receipt by the Foreign Custody Manager of Proper Instructions to
open an account or to place or maintain Foreign Assets in a country listed on
Schedule A, and the fulfillment by the Fund on behalf of the Series of the
applicable account opening requirements for such country, the Foreign Custody
Manager shall be deemed to have been delegated by the Board on behalf of the
Series responsibility as Foreign Custody Manager with respect to that country
and to have accepted such delegation. Execution of this Amendment by the Fund
shall be deemed to be a Proper Instruction to open an account, or to place or
maintain Foreign Assets, in each country listed on Schedule A in which the
Custodian has previously placed or currently maintains Foreign Assets pursuant
to the terms of the Contract. Following the receipt of Proper Instructions
directing the Foreign Custody Manager to close the account of the Series with
the Eligible Foreign Custodian selected by the Foreign Custody Manager in a
designated country, the delegation by the Board on behalf of the Series to the
Custodian as Foreign Custody Manager for that country shall be deemed to have
been withdrawn and the Custodian shall immediately cease to be the Foreign
Custody Manager of the Series with respect to that country.
The Foreign Custody Manager may withdraw its acceptance of delegated
responsibilities with respect to a designated country upon written notice to
the Fund. Ninety days (or such longer period as to which the parties agree in
writing) after receipt of any such notice by the Fund, the Custodian shall have
no further responsibility as Foreign Custody Manager to the Fund with respect
to the country as to which the Custodians acceptance of delegation is
withdrawn.
3.4. SCOPE OF DELEGATED RESPONSIBILITIES.
3.4.1. SELECTION OF ELIGIBLE FOREIGN CUSTODIANS.
Subject to the provisions of this Article 3, the requirements of Rule
17f-5 and any other applicable law, the Series' Foreign Custody Manager may
place and maintain the Foreign Assets in the care of the Eligible Foreign
Custodian selected by the Foreign Custody Manager in each country listed on
Schedule A, as amended from time to time.
In performing its delegated responsibilities as Foreign Custody Manager to
place or maintain Foreign Assets with an Eligible Foreign Custodian, the
Foreign Custody Manager shall determine that the Foreign Assets will be subject
to reasonable care, based on the standards applicable to custodians in the
relevant market, after considering all factors relevant to the safekeeping of
such assets, including, without limitation, the factors specified in Rule
17f-5(c)(1).
3.4.2. CONTRACTS WITH ELIGIBLE FOREIGN CUSTODIANS.
The Foreign Custody Manager shall determine that the contract (or the
rules or established practices or procedures in the case of an Eligible Foreign
Custodian that is a foreign securities depository or clearing agency) governing
the foreign custody arrangements with each Eligible Foreign Custodian selected
by the Foreign Custody Manager satisfies the requirements of Rule 17f-5(c)(2).
3.4.3. MONITORING.
In each case in which the Foreign Custody Manager maintains Foreign Assets
with an Eligible Foreign Custodian selected by the Foreign Custody Manager, the
Foreign Custody Manager shall comply with Rule 17f-5(c)(3). In the event the
Foreign Custody Manager determines that the custody arrangements with an
Eligible Foreign Custodian it has selected are no longer appropriate, the
Foreign Custody Manager shall notify the Board in accordance with Section 3.7
hereunder.
3.5. GUIDELINES FOR THE EXERCISE OF DELEGATED AUTHORITY.
For purposes of this Article 3, as between the Board and the Custodian
only, the Board shall be deemed to have considered and determined to accept
such Country Risk as is incurred by placing and maintaining the Foreign Assets
in each country for which the Custodian is serving as Foreign Custody Manager
of the Series. The Board shall be deemed to be monitoring on a continuing basis
such Country Risk to the extent that the Board considers necessary or
appropriate. The Fund and the Custodian each expressly acknowledge that the
Foreign Custody Manager shall not be delegated any responsibilities under this
Article 3 with respect to Mandatory Securities Depositories. Nothing in this
section shall limit the Board's ability to delegate any responsibility with
respect to Country Risk or Mandatory Securities Depositories to the Fund's
investment adviser or any other third party.
3.6. STANDARD OF CARE AS FOREIGN CUSTODY MANAGER.
In performing the responsibilities delegated to it, the Foreign Custody
Manager agrees to exercise reasonable care, prudence and diligence such as a
person having responsibility for the safekeeping of assets of management
investment companies registered under the 1940 Act would exercise.
3.7. REPORTING REQUIREMENTS.
The Foreign Custody Manager shall report the withdrawal of the Foreign
Assets from an Eligible Foreign Custodian and the placement of such Foreign
Assets with another Eligible Foreign Custodian by providing to the Board
amended Schedules A or B at the end of the calendar quarter in which an
amendment to either Schedule has occurred. The Foreign Custody Manager shall
make written reports notifying the Board of any other material change in the
foreign custody arrangements of the Series described in this Article 3 promptly
after the occurrence of the material change.
Upon request of the Fund, the Foreign Custody Manager shall provide an
annual certification to the Board that the foreign custody arrangements
delegated by the Board to the Foreign Custody Manager are in compliance with
Rule 17f-5.
3.8. REPRESENTATIONS WITH RESPECT TO RULE 17F-5.
The Foreign Custody Manager represents to the Fund that it is a U.S. Bank
as defined in section (a)(7) of Rule 17f-5.
The Fund represents to the Custodian that the Board has determined that it
is reasonable for the Board to rely on the Custodian to perform the
responsibilities delegated pursuant to this Contract to the Custodian as the
Foreign Custody Manager of the Series. This representation shall not limit the
responsibility of the Custodian in its capacity as Foreign Custody Manager.
3.9. EFFECTIVE DATE AND TERMINATION OF THE CUSTODIAN AS FOREIGN CUSTODY
MANAGER.
The Board's delegation to the Custodian as Foreign Custody Manager of the
Series shall be effective as of the date hereof and shall remain in effect
until terminated at any time, without penalty, by written notice from the
terminating party to the non-terminating party. Termination will become
effective ninety (90) days after receipt by the non-terminating party of such
notice. The provisions of Section 3.3 hereof shall govern the delegation to and
termination of the Custodian as Foreign Custody Manager of the Series with
respect to designated countries.
4. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE SERIES HELD
OUTSIDE THE UNITED STATES.
4.1 DEFINITIONS.
Capitalized terms in this Article 4 shall have the following meanings:
"Foreign Securities System" means either a clearing agency or a securities
depository listed on Schedule A hereto or a Mandatory Securities Depository
listed on Schedule B hereto.
"Foreign Sub-Custodian" means a foreign banking institution serving as an
Eligible Foreign Custodian.
4.2. HOLDING SECURITIES.
The Custodian shall identify on its books as belonging to the Series the
foreign securities held by each Foreign Sub-Custodian or Foreign Securities
System. The Custodian may hold foreign securities for all of its customers,
including the Series, with any Foreign Sub-Custodian in an account that is
identified as belonging to the Custodian for the benefit of its customers,
provided however, that (I) the records of the Custodian with respect to foreign
securities of the Series which are maintained in such account shall identify
those securities as belonging to the Series and (ii), to the extent permitted
and customary in the market in which the account is maintained, the Custodian
shall require that securities so held by the Foreign Sub-Custodian be held
separately from any assets of such Foreign Sub-Custodian or of other customers
of such Foreign Sub-Custodian.
4.3. FOREIGN SECURITIES SYSTEMS.
Foreign securities shall be maintained in a Foreign Securities System in a
designated country only through arrangements implemented by the Foreign
Sub-Custodian in such country pursuant to the terms of this Contract. Except
for those Foreign Securities Systems which are Mandatory Securities
Depositories, the Custodian shall confirm that each such Foreign Securities
System is an Eligible Foreign Custodian.
4.4. TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT.
4.4.1. DELIVERY OF FOREIGN SECURITIES.
The Custodian or a Foreign Sub-Custodian shall release and deliver foreign
securities of the Series held by such Foreign Sub-Custodian, or in a Foreign
Securities System account, only upon receipt of Proper Instructions, which may
be continuing instructions when deemed appropriate by the parties, and only in
the following cases:
(i) upon the sale of such foreign securities for the Series in
accordance with commercially reasonable market practice in the
country where such foreign securities are held or traded,
including, without limitation: (A) delivery against
expectation of receiving later payment; or (B) in the case of
a sale effected through a Foreign Securities System, in
accordance with the rules governing the operation of the
Foreign Securities System;
(ii) in connection with any repurchase agreement related to foreign
securities;
(iii) to the depository agent in connection with tender or other
similar offers for foreign securities of the Series;
(iv) to the issuer thereof or its agent when such foreign
securities are called, redeemed, retired or otherwise become
payable;
(v) to the issuer thereof, or its agent, for transfer into the
name of the Custodian (or the name of the respective Foreign
Sub-Custodian or of any nominee of the Custodian or such
Foreign Sub-Custodian) or for exchange for a different number
of bonds, certificates or other evidence representing the same
aggregate face amount or number of units;
(vi) to brokers, clearing banks or other clearing agents for
examination or trade execution in accordance with market
custom; provided that in any such case the Foreign
Sub-Custodian shall have no responsibility or liability for
any loss arising from the delivery of such securities prior to
receiving payment for such securities except as may arise from
the Foreign Sub-Custodian's own negligence or willful
misconduct;
(vii) for exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the securities of the issuer of such
securities, or pursuant to provisions for conversion contained
in such securities, or pursuant to any deposit agreement,
provided that in any such case the new securities and cash are
to be delivered to the Custodian or a Foreign Sub-Custodian;
(viii) in the case of warrants, rights or similar foreign securities,
the surrender thereof in the exercise of such warrants, rights
or similar securities or the surrender of interim receipts or
temporary securities for definitive securities, provided that
in any such case the new securities and cash are to be
delivered to the Custodian or a Foreign Sub-Custodian;
(ix) for delivery as security in connection with any borrowing by
the Series requiring a pledge of assets by the Series;
(x) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(xi) in connection with the lending of foreign securities; and
(xii) for any other proper purpose, but only upon receipt of Proper
Instructions specifying the foreign securities to be
delivered, setting forth the purpose for which such delivery
is to be made, declaring such purpose to be a proper trust
purpose, and naming the person or persons to whom delivery of
such securities shall be made.
4.4.2. PAYMENT OF SERIES MONIES.
Upon receipt of Proper Instructions, which may be continuing instructions
when deemed appropriate by the parties, the Custodian shall pay out, or direct
the respective Foreign Sub-Custodian or the respective Foreign Securities
System to pay out, monies of the Series in the following cases only:
(i) upon the purchase of foreign securities for the Series, unless
otherwise directed by Proper Instructions, by (A) delivering
money to the seller thereof or to a dealer therefor (or an
agent for such seller or dealer) against expectation of
receiving later delivery of such foreign securities in
accordance with customary established securities trading or
processing practices and procedures in the jurisdiction or
market in which the transaction occurs; or (B) in the case of
a purchase effected through a Foreign Securities System, in
accordance with the rules governing the operation of such
Foreign Securities System;
(ii) in connection with the conversion, exchange or surrender of
foreign securities of the Series;
(iii) for the payment of any expense or liability of the Series,
including but not limited to the following payments: interest,
taxes, investment advisory fees, transfer agency fees, fees
under this Contract, legal fees, accounting fees, and other
operating expenses;
(iv) for the purchase or sale of foreign exchange or foreign
exchange contracts for the Series, including transactions
executed with or through the Custodian or its Foreign
Sub-Custodians;
(v) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(vi) for payment of part or all of the dividends received in
respect of securities sold short;
(vii) in connection with the borrowing or lending of foreign
securities; and
(viii) for any other proper purpose, but only upon receipt of Proper
Instructions specifying the amount of such payment, setting
forth the purpose for which such payment is to be made,
declaring such purpose to be a proper trust purpose, and
naming the person or persons to whom such payment is to be
made.
4.4.3. MARKET CONDITIONS; MARKET INFORMATION.
Notwithstanding any provision of this Contract to the contrary, settlement
and payment for Foreign Assets received for the account of the Series and
delivery of Foreign Assets maintained for the account of the Series may be
effected in accordance with the customary established securities trading or
processing practices and procedures in the country or market in which the
transaction occurs, including, without limitation, delivering Foreign Assets to
the purchaser thereof or to a dealer therefor (or an agent for such purchaser
or dealer) with the expectation of receiving later payment for such Foreign
Assets from such purchaser or dealer.
The Custodian shall provide to the Board the information with respect to
custody and settlement practices in countries in which the Custodian employs a
Foreign Sub-Custodian, including without limitation information relating to
Foreign Securities Systems, described on Schedule C hereto at the time or times
set forth on such Schedule. The Custodian may revise Schedule C from time to
time, provided that no such revision shall result in the Board being provided
with substantively less information than had been previously provided
hereunder.
4.5. REGISTRATION OF FOREIGN SECURITIES.
The foreign securities maintained in the custody of a Foreign
Sub-Custodian (other than bearer securities) shall be registered in the name of
the Series or in the name of the Custodian or in the name of any Foreign
Sub-Custodian or in the name of any nominee of the foregoing, and the Fund on
behalf of the Series agrees to hold any such nominee harmless from any
liability solely as a holder of record of such foreign securities. The
Custodian or a Foreign Sub-Custodian shall not be obligated to accept
securities on behalf of the Series under the terms of this Contract unless the
form of such securities and the manner in which they are delivered are in
accordance with reasonable market practice.
4.6. BANK ACCOUNTS.
The Custodian shall identify on its books as belonging to the Fund cash
(including cash denominated in foreign currencies) deposited with the
Custodian. Where the Custodian is unable to maintain, or market practice does
not facilitate the maintenance of, cash on the books of the Custodian, a bank
account or bank accounts opened and maintained outside the United States on
behalf of the Series with a Foreign Sub-Custodian shall be subject only to
draft or order by the Custodian or such Foreign Sub-Custodian, acting pursuant
to the terms of this Contract to hold cash received by or from or for the
account of the Series.
4.7. COLLECTION OF INCOME.
The Custodian shall use reasonable commercial efforts to collect all
income and other payments with respect to the Foreign Assets held hereunder to
which the Series shall be entitled and shall credit such income, as collected,
to the Series In the event that extraordinary measures are required to collect
such income, the Fund and the Custodian shall consult as to such measures and
as to the compensation and expenses of the Custodian relating to such measures.
4.8. SHAREHOLDER RIGHTS.
With respect to the foreign securities held pursuant to this Article 4,
the Custodian will facilitate the exercise of voting and other shareholder
rights, subject always to the laws, regulations and practical constraints that
may exist in the country where such securities are issued. The Fund
acknowledges that local conditions, including lack of regulation, onerous
procedural obligations, lack of notice and other factors may have the effect of
severely limiting the ability of the Fund to exercise shareholder rights.
4.9. COMMUNICATIONS RELATING TO FOREIGN SECURITIES.
The Custodian shall transmit promptly to the Fund written information
(including, without limitation, pendency of calls and maturities of foreign
securities and expirations of rights in connection therewith) received by the
Custodian via the Foreign Sub-Custodians from issuers of the foreign securities
being held for the account of the Series. With respect to tender or exchange
offers, the Custodian shall transmit promptly to the Fund written information
so received by the Custodian from issuers of the foreign securities whose
tender or exchange is sought or from the party (or its agents) making the
tender or exchange offer. The Custodian shall not be liable for any untimely
exercise of any tender, exchange or other right or power in connection with
foreign securities or other property of the Series at any time held by it
unless the Custodian has failed to perform its obligations under the first two
sentences of this Section or unless (I) the Custodian or the respective Foreign
Sub-Custodian is in actual possession of such foreign securities or property
and (ii) the Custodian receives Proper Instructions with regard to the exercise
of any such right or power, and both (I) and (ii) occur at least three business
days prior to the date on which the Custodian is to take action to exercise
such right or power.
4.10. LIABILITY OF FOREIGN SUB-CUSTODIANS AND FOREIGN SECURITIES SYSTEMS.
Each agreement pursuant to which the Custodian employs a Foreign
Sub-Custodian shall, to the extent possible, require the Foreign Sub-Custodian
to exercise reasonable care in the performance of its duties and, to the extent
possible, to indemnify, and hold harmless, the Custodian and the Fund from and
against any loss, damage, cost, expense, liability or claim arising out of or
in connection with the Foreign Sub-Custodian's performance of such obligations.
At the Fund's election, the Fund shall be entitled to be subrogated to the
rights of the Custodian with respect to any claims against a Foreign
Sub-Custodian as a consequence of any such loss, damage, cost, expense,
liability or claim if and to the extent that the Series have not been made
whole for any such loss, damage, cost, expense, liability or claim.
4.11. TAX LAW.
The Custodian shall have no responsibility or liability for any
obligations now or hereafter imposed on the Fund, the Series or the Custodian
as custodian of the Series by the tax law of the United States or of any state
or political subdivision thereof. It shall be the responsibility of the Fund to
notify the Custodian of the obligations imposed on the Fund with respect to the
Series or the Custodian as custodian of the Series by the tax law of countries
other than those mentioned in the above sentence, including responsibility for
withholding and other taxes, assessments or other governmental charges,
certifications and governmental reporting. The sole responsibility of the
Custodian with regard to such tax law shall be to use reasonable efforts to
assist the Fund with respect to any claim for exemption or refund under the tax
law of countries for which the Fund has provided such information.
4.12. ACCESS OF INDEPENDENT ACCOUNTANTS OF THE FUND.
To the extent account structure and local law allow and upon request of
the Fund, the Custodian will use its best efforts to arrange for the
independent accountants of the Fund to be afforded access to the books and
records of any Foreign Sub-Custodian insofar as such books and records relate
to the performance of such Foreign Sub-Custodian under its agreement with the
Custodian.
4.13. LIABILITY OF CUSTODIAN.
Except as may arise from the Custodian's own negligence, bad faith or
willful misconduct or the negligence, bad faith or willful misconduct of a
Sub-Custodian, the Custodian shall be without liability to the Fund for any
loss, liability, claim or expense resulting from or caused by anything which is
(A) part of Country Risk or (B) part of the "prevailing country risk" of the
Fund and the Series, as such term is used in SEC Release Nos. IC-22658; IS-1080
(May 12, 1997).
The Custodian shall be liable for the acts or omissions of a Foreign
Sub-Custodian to the same extent as set forth with respect to sub-custodians
generally in the Contract and, regardless of whether assets are maintained in
the custody of a Foreign Sub-Custodian or a Foreign Securities Depository, the
Custodian shall not be liable for any loss, damage, cost, expense, liability or
claim resulting from nationalization, expropriation, currency restrictions, or
acts of war or terrorism, or any other loss where the Sub-Custodian has
otherwise acted with reasonable care.
4.14. LIMITATION ON LIABILITY OF TRUSTEES.
The Amended and Restated Agreement and Declaration of Trust of the Fund
dated as of January 23, 1997 is on file with the Secretary of The Commonwealth
of Massachusetts.
This Amendment is executed on behalf of the Fund and not on behalf of the
Trustees or officers of the Fund or individually, and the obligations of this
Amendment are not binding upon any of such Trustees, such officers, or the
Shareholders of the Fund individually but are binding only upon the assets and
property of the Series.
IV. Except as specifically superseded or modified herein, the terms and
provisions of the Contract shall continue to apply with full force and effect.
In the event of any conflict between the terms of the Contract prior to this
Amendment and this Amendment, the terms of this Amendment shall prevail. If the
Custodian is delegated the responsibilities of Foreign Custody Manager pursuant
to the terms of Article 3 hereof, in the event of any conflict between the
provisions of Articles 3 and 4 hereof, the provisions of Article 3 shall
prevail.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
executed in its name and behalf by its duly authorized representative as of the
date first above written.
WITNESSED BY: STATE STREET BANK AND TRUST COMPANY
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------- -----------------------------
Xxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxx
Associate Counsel Title: Executive Vice President
WITNESSED BY: CGM TRUST
/s/ Xxxxxx X. Lake By: /s/ Xxxxxx X. Xxxx
------------------------- ----------------------------------
Name: Xxxxxx X. Lake Name: Xxxxxx X. Xxxx
Title: Vice President Title: President
and Secretary
