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EXHIBIT 4.3
TRUST AGREEMENT
OF
KBK CAPITAL TRUST I
TRUST AGREEMENT ("Declaration") dated and effective as of September 29,
1998 by the Delaware Trustee (as defined herein), the Sponsor (as defined
herein), the Administrative Trustees (as defined herein), and by the holders
from time to time, of undivided beneficial interests in the Trust to be issued
pursuant to this Declaration;
WHEREAS, the Delaware Trustee, the Administrative Trustees and the
Sponsor desire to establish KBK Capital Trust I (the "Trust") pursuant to the
Delaware Business Trust Act for the sole purpose of issuing and selling certain
securities representing undivided beneficial interests in the assets of the
Trust and investing the proceeds thereof in certain Debentures of the Debentures
Issuer;
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Delaware Business Trust Act and that
this Declaration constitute the governing instrument of such business trust.
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration" are
to this Trust Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Declaration to Articles and Sections
are to Articles and Sections of this Declaration unless
otherwise specified; and
(e) a reference to the singular includes the plural and vice
versa.
"Administrative Trustees" means each of Xxx X. Xxxxxx, Xxxxxxx X.
Xxxxxxxxx, and Xxxxxx X. XxXxx, solely in such Person's capacity as an
Administrative Trustee of the Trust created hereunder and not in such Person's
individual capacity, or such Administrative Trustee's successor in interest in
such capacity, or any successor appointed as herein provided.
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"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Certificate of Trust" shall mean the certificate of trust to be filed
pursuant to Section 3810 of the Delaware Business Trust Act.
"Commission" means the Securities and Exchange Commission.
"Company Indemnified Person" means (a) any Administrative Trustee; (b)
any Affiliate of any Administrative Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Administrative Trustee or of the Trust or any of its Affiliates.
"Covered Person" means (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates and (b) any holder of Trust Securities.
"Debenture Issuer" means the Parent in its capacity as the issuer of
the Debentures under the Subordinated Indenture.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer and acquired by the Trust.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time, or any successor legislation.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time or any successor legislation.
"Fiduciary Indemnified Person" means (i) each Trustee, (ii) any
Affiliate of any Trustee, (iii) any officer, director, shareholder, employee,
member, partner, representative or agent of any Trustee, and (iv) any officer,
director, shareholder, employee, member, partner, representative or agent of the
Trust or its Affiliates.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Parent" means KBK Capital Corporation, a Delaware corporation or any
successor entity in a merger, consolidation or similar reorganization.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
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"Property Trustee" has the meaning set forth in Section 3.4.
"Prospectus" has the meaning set forth in Section 2.6(b)(i).
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the Trust.
"Subordinated Debt Trustee" means The First National Bank of Chicago, a
national banking association, as trustee under the Subordinated Indenture until
a successor is appointed thereunder, and thereafter means such successor
trustee.
"Subordinated Indenture" means the indenture by and between the Parent
and the Subordinated Debt Trustee and any indenture supplemental thereto
pursuant to which the Debentures are to be issued or governed.
"Trust Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust having such rights and with such
terms as may be set out in this Declaration or in any amendment or restatement
hereof.
"Trust Common Security Holder" means the Parent, as the owner of the
Trust Common Securities.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust having such rights and with such
terms as may be set out in this Declaration or in any amendment or restatement
hereof.
"Trust Preferred Security Holders" means the persons acquiring Trust
Preferred Securities and holding the same, from time to time.
"Trust Securities" means the Trust Common Securities and the Trust
Preferred Securities.
"Underwriting Agreement" means the Underwriting Agreement by and among
the Parent, the Trust and Friedman, Billings, Xxxxxx & Co., Inc., and J.J.B.
Xxxxxxxx, X.X. Xxxxx, Inc.
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ARTICLE II
ORGANIZATION
Section 2.1 Name.
The Trust created by this Declaration is named "KBK Capital Trust I."
The Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Administrative Trustees.
Section 2.2 Office.
The address of the principal office of the Trust is c/o KBK Capital
Corporation, 000 Xxxxxxxx Xxxxxx, Xxxxx 0000, 0000 Xxxx Xxxxxx XX, Xxxxx Xxxxx,
Xxxxx 00000. At any time, the Administrative Trustees may designate another
principal office of the Trust.
Section 2.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the
Debentures, (b) to distribute the Trust's income as provided in this Declaration
or any amendment or restatement hereof and (c) except as otherwise limited
herein, to engage in only those other activities necessary, or incidental
thereto. The Trust shall not borrow money, issue debt or reinvest proceeds
derived from investments, pledge any of its assets, or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust not to be
classified for United States federal income tax purposes as a grantor trust.
Section 2.4 Declaration and Authority.
The Administrative Trustees declare that all assets contributed to the
Trust will be held in trust for the benefit of the holders, from time to time,
of the securities representing undivided beneficial interests in the assets of
the Trust issued hereunder, subject to the provisions of this Declaration. The
Sponsor hereby contributes the sum of $10 to be held by the Administrative
Trustees hereunder and to which all other assets of the Trust, from time to
time, shall be added.
Subject to the limitations provided in this Declaration, the
Administrative Trustees shall have exclusive and complete authority to carry out
the purposes of the Trust. An action taken by the Administrative Trustees in
accordance with their powers shall constitute the act of, and serve to bind, the
Trust. In dealing with the Administrative Trustees acting on behalf of the
Trust, no person shall be required to inquire into the authority of the
Administrative Trustee to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Administrative
Trustees as set forth in this Declaration.
Section 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the Trust.
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Section 2.6 Powers of the Administrative Trustees.
The Administrative Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities at any time
and from time to time:
to issue and sell the Trust Preferred Securities and the Trust
Common Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Trust Preferred Securities and no
more than one series of Trust Common Securities, and, provided, further, that
there shall be no interests in the Trust other than the Trust Securities and the
issuance of the Trust Securities shall be limited to the simultaneous issuance
of both Trust Preferred and Trust Common Securities on the date the Trust
Preferred Securities are initially sold and any other date Trust Preferred
Securities and Trust Common Securities are sold pursuant to any over-allotment
option granted by the Trust under the Underwriting Agreement;
in connection with the issuance and sale of the Trust
Preferred Securities, at the direction of the Sponsor, to:
(i) permit the use of a Prospectus (the
"Prospectus") in preliminary and final form prepared by the
Sponsor, in relation to the offering and sale of Trust
Preferred Securities to certain buyers and to execute and file
with the Commission, at such time as determined by the
Sponsor, a registration statement prepared by the Sponsor,
including any amendments thereto in relation to the Trust
Preferred Securities;
(ii) execute and file any documents prepared
by the Sponsor, or take any acts as determined by the Sponsor
to be necessary in order to qualify or register all or part of
the Trust Preferred Securities in any State in which the
Sponsor has determined to qualify or register such Trust
Preferred Securities for sale;
(iii) execute and file an application,
prepared by the Sponsor, at such time as determined by the
Sponsor to the American Stock Exchange or any other national
stock exchange for listing or quotation of the Trust Preferred
Securities;
(iv) execute and enter into the Underwriting
Agreement and pricing agreement providing for the sale of the
Trust Preferred Securities; and
(v) make any qualifications and take any
acts required under the Trust Indenture Act of 1939;
to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and provide for reasonable compensation for such services;
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to incur expenses which are necessary or incidental to carry
out any of the purposes of this Declaration; and
to execute and deliver all documents and instruments, perform
all duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
Section 2.7 Filing of Certificate of Trust.
On the date of execution of this Declaration, the Delaware Trustee and
the Administrative Trustees shall cause the filing of the Certificate of Trust
for the Trust in the form attached hereto as Exhibit A with the Secretary of
State of the State of Delaware.
Section 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence for thirty-one (31) years from the date hereof.
Section 2.9 Responsibilities of the Sponsor.
In connection with the issuance and sale of the Trust Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities at any time and from time to time following
such issuance and sale:
to prepare for filing by the Administrative Trustees on behalf
of Trust with the Commission a registration statement in relation to the Trust
Preferred Securities, including any amendments thereto;
to determine the States in which to take appropriate action to
qualify or register for sale of all or part of the Trust Preferred Securities or
the Trust Common Securities and to do any and all such acts, other than actions
which must be taken by the Trust, and advise the Trust of actions it must take,
and prepare for execution and filing any documents to be executed and filed by
the Trust, as the Sponsor deems necessary or advisable in order to comply with
the applicable laws of any such States;
to prepare for filing by the Trust an application at such time
as determined by the Sponsor to the American Stock Exchange or any other
national stock exchange for listing or quotation of the Trust Preferred
Securities;
to negotiate the terms of the Underwriting Agreement providing
for the sale of the Trust Preferred Securities; and
to prepare a prospectus in preliminary and final form in
relation to the offering and sale of Trust Preferred Securities as described in
Section 2.6(b)(i) hereof.
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Section 2.10 Declaration Binding on Trust Securities Holders.
Every Person by virtue of having become a holder of a Trust Security or
any interest therein in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be bound
by, this Declaration.
ARTICLE III
TRUSTEES
Section 3.1 Trustees.
The number of Trustees initially shall be four (4), and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor. The Sponsor is entitled to appoint or
remove without cause any Trustee at any time; provided, however, that the number
of Trustees shall in no event be less than three (3); provided, further, that
one (1) Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, is an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee").
Section 3.2 Administrative Trustees.
The initial Administrative Trustees shall be:
Xxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxxx X. XxXxx
(a) Except as expressly set forth in this Declaration, any
power of the Administrative Trustees may be exercised by, or with the consent
of, any two such Administrative Trustees.
(b) Except as otherwise required by the Delaware Business
Trust Act, the Administrative Trustees are authorized to execute on behalf of
the Trust any documents which the Administrative Trustees have the power and
authority to cause the Trust to execute pursuant to Section 2.6.
Section 3.3 Delaware Trustee.
The initial Delaware Trustee shall be:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
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Notwithstanding any other provision of this Declaration, the Delaware
Trustee shall not be entitled to exercise any of the powers, nor shall the
Delaware Trustee have any of the duties and responsibilities, of the
Administrative Trustees described in this Declaration. The Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act. Notwithstanding
anything herein to the contrary, the Delaware Trustee shall not be liable for
the acts or omissions of the Trust or of the Administrative Trustees except with
respect to acts which the Delaware Trustee is expressly obligated or authorized
to undertake under this Declaration or the Delaware Business Trust Act and
except for the gross negligence or willful misconduct of the Delaware Trustee.
Section 3.4 Property Trustee.
Prior to the issuance of the Trust Preferred Securities and the Trust
Common Securities, the Sponsor shall appoint another trustee (the "Property
Trustee") meeting the requirements of an eligible trustee of the Trust Indenture
Act of 1939, as amended, by the execution of an amendment to or restatement of
this Declaration executed by the Administrative Trustees, the Sponsor, the
Property Trustee and the Delaware Trustee.
Section 3.5 Not Responsible for Recitals or Sufficiency of Declaration.
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and neither the Administrative Trustees nor the
Delaware Trustee assumes any responsibility for their correctness. The
Administrative Trustees and the Delaware Trustee make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Administrative Trustees and the Delaware Trustee make no representations as to
the validity or sufficiency of this Declaration.
Section 3.6 Compensation of Administrative Trustees and Trustees.
The Sponsor agrees:
to pay the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust and which, in the case of the Delaware Trustee, shall be as set
forth in a fee letter from the Delaware Trustee to the Sponsor);
except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable documented expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to the negligence or bad faith of
such Trustee;
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to the fullest extent possible the parties intend that Section
3561 of Title 12 of the Delaware Code shall not apply to the Trust and that
compensation paid pursuant to Section 3.6(a) not be subject to review by any
court under Section 3560 of Title 12 of the Delaware Code.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF TRUST SECURITIES, TRUSTEES OR OTHERS
Section 4.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that the foregoing limitation shall not limit the liability, if any, of
an Indemnified Person to a Covered Person to the extent that any such loss,
damage or claim is incurred by the Covered Person by reason of such Indemnified
Person's gross negligence or willful misconduct with respect to such acts or
omissions; and
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which distributions to holders of Trust Securities might properly be paid.
Section 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person;
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between Covered Persons; or
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(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any holder of Trust Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or another express standard,
the Indemnified Person shall act under such express standard
and shall not be subject to any other or different standard
imposed by this Declaration or by applicable law.
Section 4.3 Indemnification.
The Sponsor agrees, to the fullest extent permitted by applicable law,
to indemnify and hold harmless any Indemnified Person from and against any loss,
damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Declaration, except that
no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions.
Section 4.4 Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the holders of Trust Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the
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Trust, shall not be deemed wrongful or improper. No Covered Person, the Sponsor
or the Delaware Trustee shall be obligated to present any particular investment
or other opportunity to the Trust even if such opportunity is of a character
that, if presented to the Trust, could be taken by the Trust, and any Covered
Person, the Sponsor and the Delaware Trustee shall have the right to take for
its own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or opportunity. Any Covered Person and the
Delaware Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor or may act as
depositary for, trustee or agent for or may act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATING, MISCELLANEOUS
Section 5.1 Amendments.
At any time before the issuance of any Trust Securities, this
Declaration may be amended or restated by, and only by, a written instrument
executed by all of the Administrative Trustees and the Sponsor, provided,
however, that no such amendment shall modify the duties of the Delaware Trustee
without the execution by such Delaware Trustee of such amendment or restatement,
as the case may be.
Section 5.2 Termination of Trust.
(a) The Trust shall terminate and be of no further force or
effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a Certificate of Dissolution
or its equivalent with respect to the Sponsor or the failure
of the Sponsor to revive its Charter within ten (10) days
following the revocation of the Sponsor's charter or of the
Trust's Certificate of Trust;
(iii) upon the entry of a decree of judicial
dissolution of the Sponsor, or the Trust;
(iv) before the issuance of any Trust Securities,
with the consent of all of the Administrative Trustees and the
Sponsor; and
(v) upon the expiration of the term set forth in
Section 2.8;
(b) As soon as practicable after the occurrence of an event
referred to in Section 5.2(a), the Administrative Trustees shall execute and
file a certificate of cancellation with the Secretary of State of the State of
Delaware.
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Section 5.3 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws. The provisions of Section 3540 of Title 12 of
the Delaware Code shall not apply to the Trust.
Section 5.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference and do not affect the interpretation of this Declaration or any
provision hereof.
Section 5.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor,
the Trustees shall bind and inure to the benefit of their respective successors
and assigns, whether or not so expressed.
Section 5.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
Section 5.7 Counterparts.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the parties hereto to one of such counterpart signature pages. All such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
[SPACE LEFT INTENTIONALLY BLANK FOR SIGNATURES]
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IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year above written.
KBK CAPITAL CORPORATION,
as Sponsor
By: /s/ XXX X. XXXXXX
------------------------------------
Name: Xxx X. Xxxxxx
----------------------------------
Title: Executive Vice President and
Chief Financial Officer
---------------------------------
WILMINGTON TRUST COMPANY,
not in its individual capacity, but solely
as Delaware Trustee
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Title: Vice President
---------------------------------
/s/ XXX X. XXXXXX
-----------------------------------,
Xxx X. Xxxxxx, not in his individual capacity,
but solely as Administrative Trustee
/s/ XXXXXXX X. XXXXXXXXX
-------------------------------------,
Xxxxxxx X. Xxxxxxxxx, not in her individual
capacity, but solely as Administrative Trustee
/s/ XXXXXX X. XXXXX
--------------------------------------,
Xxxxxx X. XxXxx, not in his individual capacity,
but solely as Administrative Trustee
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