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EXHIBIT 4.6
TRUST AGREEMENT
OF
SFS CAPITAL TRUST II
TRUST AGREEMENT ("Declaration") dated and effective as of May
11, 1999 by the Trustees (as defined herein), the Sponsor (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 Trustees and the Sponsor desire to establish SFS
Capital Trust II (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 Subordinated Debt Securities of the Subordinated
Debt Issuer;
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the 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.
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"Administrative Trustee" means any Trustee other than the
Delaware Trustee.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Certificate of Trust" shall mean the certificate of trust to be
filed pursuant to Section 3810 of the Business Trust Act.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust having such rights and with
terms as may be set out in this Declaration or in any amendment or restatement
hereof.
"Common Security Holder" means the Parent, as the owner of the
Common Securities.
"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 (d) any employee or agent of the Trust
or 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 Securities.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code Sections 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" has the meaning set forth in
Section 4.3(b).
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
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"Indenture" means the indenture to be entered into between the
Parent and the Subordinated Debt Trustee and any indenture supplemental thereto
pursuant to which the Subordinated Debt Securities are to be issued or
governed.
"Offering Circular" has the meaning set forth in Section
2.6(b)(i).
"Parent" means Santa ▇▇ ▇▇▇▇▇▇ 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.
"PORTAL" has the meaning set forth in Section 2.6(b)(iii).
"Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set
out in this Declaration or in any amendment or restatement hereof.
"Preferred Security Holders" means the persons acquiring
Preferred Securities and holding the same, from time to time.
"Purchase Agreement" means the Purchase Agreement by and among
the Parent, the Trust, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. as representative of the
several Purchasers (as defined therein).
"Securities" means the Common Securities and the Preferred
Securities.
"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 Issuer" means the Parent in its capacity as
the issuer of the Subordinated Debt Securities under the Indenture.
"Subordinated Debt Securities" means the Subordinated Debt
Securities to be issued by the Subordinated Debt Issuer and acquired by the
Trust.
"Subordinated Debt Trustee" means The Bank of New York, as
trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.
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"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.
ARTICLE II
ORGANIZATION
Section 2.1 Name.
The Trust created by this Declaration is named "SFS Capital
Trust II." 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 ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. 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 Securities and use the proceeds from such sale to acquire the
Subordinated Debt Securities, (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.
(a) The 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 Trustees hereunder
and to which all other assets of the Trust, from time to time, shall be added.
(b) 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
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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 Trustees 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.
Section 2.6 Powers of the Trustees.
The Administrative Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided, further, that there shall
be no interests in the Trust other the Securities and the issuance of the
Securities shall be limited to the simultaneous issuance of both Preferred and
Common Securities on the date the Preferred Securities are initially sold and
any other date Preferred Securities and Common Securities are sold pursuant to
any over-allotment option granted by the Trust under the Purchase Agreement;
(b) in connection with the issuance and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) permit the use of an offering circular (the "Offering
Circular") in preliminary and final form prepared by the Sponsor, in
relation to the offering and sale of Preferred Securities to
qualified institutional buyers in reliance on Rule 144A under the
Securities Act and outside the United States to non-U.S. persons in
offshore transactions in reliance on Regulation S under the
Securities Act and to execute and file with the Commission, at such
time as determined by the Sponsor, a registration statement filed on
Form S-3 prepared by the Sponsor, including any amendments thereto in
relation to the 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 Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(iii) execute and file an application, prepared by the Sponsor,
to the Private Offerings, Resale and Trading through Automated
Linkages ("PORTAL") market and, at such time as determined by the
Sponsor to the New York Stock Exchange or any other
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national stock exchange or the Nasdaq National Market for listing or
quotation of the Preferred Securities;
(iv) execute and enter into the Purchase Agreement and pricing
agreement providing for the sale of the Preferred Securities;
(c) 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;
(d) to incur expenses which are necessary or incidental to carry
out any of the purposes of this Declaration; and
(e) to execute all documents or 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 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 forty-five (45) years from the
date hereof.
Section 2.9 Responsibilities of the Sponsor.
In connection with the issuance and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Administrative Trustee on
behalf of Trust with the Commission a registration statement on Form S-3 in
relation to the Preferred Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action
to qualify or register for sale of all or part of the Preferred Securities or
the 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;
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(c) to prepare for filing by the Trust an application to
PORTAL for listing upon notice of issuance of any Preferred Securities;
(d) negotiate the terms of the Purchase Agreement providing for
the sale of the Preferred Securities.
Section 2.10 Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a 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 three (3), 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 two (2);
provided, however, that one 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"); provided further that there shall be at
least one trustee who is an employee or officer of, or is affiliated with the
Parent (an "Administrative Trustee").
Section 3.2 Administrative Trustees.
The initial Administrative Trustees shall be:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
(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
one such Administrative Trustee.
(b) Unless otherwise determined by the Administrative Trustees,
and except as otherwise required by the Delaware Business Trust Act, any
Administrative Trustee is 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 provided, that, the
registration
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statement referred to in Section 2.6(b)(i), including any amendments thereto,
shall be signed by either one of the Administrative Trustees; and
(c) an Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purposes of signing any documents which the
Administrative Trustees have 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:
The Bank of New York (Delaware)
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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 to act of the Trust or of the Administrative Trustees
except such acts as 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 Not Responsible for Recitals or Sufficiency of
Declaration.
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration.
Section 3.5 Compensation of Trustees.
The Sponsor agrees:
(a) 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);
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(b) except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable 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 its negligence or bad faith;
(c) 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 3.5(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 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 an Indemnified Person shall be liable for any such loss,
damage or claim incurred 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 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
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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
(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 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 (i) each Trustee, (ii) any
Affiliate of any Trustee, (iii) any officer, director, shareholder, employee,
representative or agent of any Trustee, and (iv) any employee or agent of the
Trust or its Affiliates, (referred to herein as an "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 Trust
Agreement, except that no Indemnified Person
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shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of gross 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 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 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, TERMINATION,
MISCELLANEOUS
Section 5.1 Amendments.
At any time before the issuance of any 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 of 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;
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(iii) upon the entry of a decree of judicial dissolution of the
Sponsor, or the Trust;
(iv) before the issuance of any Securities, with the consent of
all of the Administrative Trustees and the Sponsor; and
(b) as soon an is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
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
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether 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 Trustees 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.
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IN WITNESS WHEREOF, the undersigned has caused these present to
be executed as of the day and year above written.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity, but solely as
Delaware Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ,
----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, not in his individual
capacity, but solely as Administrative Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ ,
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▇▇▇▇▇ ▇. ▇▇▇▇▇, not in his individual capacity,
but solely as Administrative Trustee
SANTA ▇▇ ▇▇▇▇▇▇ CORPORATION,
as Sponsor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President - Law and
General Counsel
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