exv4w02






Exhibit 4.02




_________________




AMENDED AND RESTATED DECLARATION




OF TRUST



CITIGROUP CAPITAL XIII



Dated as of September 29, 2010



_________________









 









 








TABLE OF CONTENTS




	 	 	 	 	 

	ARTICLE I INTERPRETATION AND DEFINITIONS
	 
	 	 	 	 
	SECTION 1.1 Definitions
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II TRUST INDENTURE ACT
	 
	 	 	 	 
	SECTION 2.1 Trust Indenture Act; Application
	 	 	7	 
	SECTION 2.2 Lists of Holders of Securities
	 	 	8	 
	SECTION 2.3 Reports by the Institutional Trustee
	 	 	8	 
	SECTION 2.4 Periodic Reports to Institutional Trustee
	 	 	8	 
	SECTION 2.5 Evidence of Compliance with Conditions Precedent
	 	 	9	 
	SECTION 2.6 Defaults; Waiver
	 	 	9	 
	SECTION 2.7 Default; Notice
	 	 	10	 
	 
	 	 	 	 
	ARTICLE III ORGANIZATION
	 
	 	 	 	 
	SECTION 3.1 Name
	 	 	11	 
	SECTION 3.2 Office
	 	 	11	 
	SECTION 3.3 Purpose
	 	 	11	 
	SECTION 3.4 Authority
	 	 	11	 
	SECTION 3.5 Title to Property of the Trust
	 	 	12	 
	SECTION 3.6 Powers and Duties of the Regular Trustees
	 	 	12	 
	SECTION 3.7 Prohibition of Actions by the Trust and the Trustees
	 	 	14	 
	SECTION 3.8 Powers and Duties of the Institutional Trustee
	 	 	15	 
	SECTION 3.9 Certain Duties and Responsibilities of the Institutional Trustee
	 	 	17	 
	SECTION 3.10 Certain Rights of Institutional Trustee
	 	 	18	 
	SECTION 3.11 Delaware Trustee
	 	 	21	 
	SECTION 3.12 Execution of Documents
	 	 	21	 
	SECTION 3.13 Not Responsible for Recitals or Issuance of Securities
	 	 	21	 
	SECTION 3.14 Duration of Trust
	 	 	21	 
	SECTION 3.15 Mergers
	 	 	22	 
	 
	 	 	 	 
	ARTICLE IV SPONSOR
	 
	 	 	 	 
	SECTION 4.1 Sponsor’s Purchase of Common Securities
	 	 	23	 
	SECTION 4.2 Responsibilities of the Sponsor
	 	 	23	 






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	ARTICLE V TRUSTEES
	 
	 	 	 	 
	SECTION 5.1 Number of Trustees
	 	 	24	 
	SECTION 5.2 Delaware Trustee
	 	 	24	 
	SECTION 5.3 Institutional Trustee; Eligibility
	 	 	25	 
	SECTION 5.4 Qualifications of Regular Trustees and Delaware Trustee Generally
	 	 	25	 
	SECTION 5.5 Initial Trustees; Additional Powers of Regular Trustees
	 	 	26	 
	SECTION 5.6 Appointment, Removal and Resignation of Trustees
	 	 	26	 
	SECTION 5.7 Vacancies among Trustees
	 	 	28	 
	SECTION 5.8 Effect of Vacancies
	 	 	28	 
	SECTION 5.9 Meetings
	 	 	28	 
	SECTION 5.10 Delegation of Power
	 	 	29	 
	SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business
	 	 	29	 
	 
	 	 	 	 
	ARTICLE VI DISTRIBUTIONS
	 
	 	 	 	 
	SECTION 6.1 Distributions
	 	 	29	 
	 
	 	 	 	 
	ARTICLE VII ISSUANCE OF SECURITIES
	 
	 	 	 	 
	SECTION 7.1 General Provisions Regarding Securities
	 	 	31	 
	 
	 	 	 	 
	ARTICLE VIII TERMINATION OF TRUST
	 
	 	 	 	 
	SECTION 8.1 Termination of Trust
	 	 	31	 
	 
	 	 	 	 
	ARTICLE IX TRANSFER OF INTERESTS
	 
	 	 	 	 
	SECTION 9.1 Transfer of Securities
	 	 	32	 
	SECTION 9.2 Transfer of Certificates
	 	 	33	 
	SECTION 9.3 Deemed Security Holders
	 	 	35	 
	SECTION 9.4 Book Entry Interests
	 	 	35	 
	SECTION 9.5 Notices to Clearing Agency
	 	 	35	 
	SECTION 9.6 Appointment of Successor Clearing Agency
	 	 	36	 
	SECTION 9.7 Definitive Capital Security Certificates
	 	 	36	 
	SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates
	 	 	36	 
	 
	 	 	 	 
	ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
	 
	 	 	 	 
	SECTION 10.1 Liability
	 	 	37	 
	SECTION 10.2 Exculpation
	 	 	37	 
	SECTION 10.3 Fiduciary Duty
	 	 	38	 
	SECTION 10.4 Indemnification
	 	 	39	 
	SECTION 10.5 Outside Businesses
	 	 	41	 






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	ARTICLE XI ACCOUNTING
	 
	 	 	 	 
	SECTION 11.1 Fiscal Year
	 	 	42	 
	SECTION 11.2 Certain Accounting Matters
	 	 	42	 
	SECTION 11.3 Banking
	 	 	43	 
	SECTION 11.4 Withholding
	 	 	43	 
	 
	 	 	 	 
	ARTICLE XII AMENDMENTS AND MEETINGS
	 
	 	 	 	 
	SECTION 12.1 Amendments
	 	 	43	 
	SECTION 12.2 Meetings of the Holders of Securities; Action by Written Consent
	 	 	45	 
	 
	 	 	 	 
	ARTICLE XIII REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
	 
	 	 	 	 
	SECTION 13.1 Representations and Warranties of Institutional Trustee
	 	 	46	 
	SECTION 13.2 Representations and Warranties of Delaware Trustee
	 	 	47	 
	 
	 	 	 	 
	ARTICLE XIV MISCELLANEOUS
	 
	 	 	 	 
	SECTION 14.1 Notices
	 	 	48	 
	SECTION 14.2 Governing Law
	 	 	49	 
	SECTION 14.3 Intention of the Parties
	 	 	49	 
	SECTION 14.4 Headings
	 	 	49	 
	SECTION 14.5 Successors and Assigns
	 	 	49	 
	SECTION 14.6 Partial Enforceability
	 	 	49	 
	SECTION 14.7 Counterparts 
	 	 	49	 






	 	 	 	 	 

	ANNEX I 

EXHIBIT A-1

EXHIBIT A-2

EXHIBIT B 

EXHIBIT C

	 	TERMS OF SECURITIES

FORM OF CAPITAL SECURITY CERTIFICATE

FORM OF COMMON SECURITY CERTIFICATE

SPECIMEN OF DEBENTURE

UNDERWRITING AGREEMENT
	 	I-1

A1-1

A2-1

B-1

C-1






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CROSS-REFERENCE TABLE*




	 	 	 	 	 
	Section of	 	 
	Trust Indenture Act	 	 
	of 1939, as amended	 	Section of Declaration
	310(a)

	 	 		5.3(a)
	310(c)

	 	Inapplicable

	311(c)

	 	Inapplicable

	312(a)

	 	 		2.2(a)
	312(b)

	 	 		2.2(b)
	313

	 	 		2.3 
	314(a)

	 	 	 	2.4
	314(b)

	 	Inapplicable

	314(c)

	 	 	 	2.5 
	314(d)

	 	Inapplicable

	314(f)

	 	Inapplicable

	315(a)

	 	 	 	3.9(b)
	315(c)

	 	 	 	3.9(a)
	315(d)

	 	 	 	3.9(a)
	316(a)

	 	Annex I

	316(c)

	 	 	 	3.6(e)








 




			
	*	 	This Cross-Reference Table does not constitute part of the Declaration and shall not affect
the interpretation of any of its terms or provisions.




iv









 










AMENDED AND RESTATED




DECLARATION OF TRUST



OF



CITIGROUP CAPITAL XIII



September 29, 2010




          AMENDED AND RESTATED DECLARATION OF TRUST (“Declaration”) dated and effective as of September
29, 2010, 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 assets of the Trust to be issued
pursuant to this Declaration;




          WHEREAS, the Trustees and the Sponsor established Citigroup Capital XIII (the “Trust”), a
trust under the Statutory Trust Act (as defined herein) pursuant to a Declaration of Trust dated as
of December 7, 1998 (the “Original Declaration”) and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on December 7, 1998, for the sole purpose of issuing
and selling certain securities representing undivided beneficial interests in the assets of the
Trust and acquiring certain Debentures of the Debenture Issuer;




          WHEREAS, as of the date hereof, no interests in the Trust have been issued;




          WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend and restate each and
every term and provision of the Original Declaration.




          NOW, THEREFORE, it being the intention of the parties hereto to continue the Trust as a
statutory trust under the Statutory Trust Act and that this Declaration constitute the governing
instrument of such statutory trust, 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.



ARTICLE I

INTERPRETATION AND 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 Declaration as
modified, supplemented or amended from time to time;




          (d) all references in this Declaration to Articles and Sections and Annexes and Exhibits are
to Articles and Sections of and Annexes and Exhibits to this Declaration unless otherwise
specified;




          (e) a term defined in the Trust Indenture Act has the same meaning when used in this
Declaration unless otherwise defined in this Declaration or unless the context otherwise requires;
and




          (f) a reference to the singular includes the plural and vice versa.




          “Affiliate” has the same meaning as given to that term in Rule 405 of the Securities
Act or any successor rule thereunder.




          “Authorized Officer” of a Person means any Person that is authorized to bind such
Person.




          “Book Entry Interest” means a beneficial interest in a Global Certificate, ownership
and transfers of which shall be maintained and made through book entries by a Clearing Agency as
described in Section 9.4.




          “Business Day” means any day other than a Saturday, Sunday or a day on which banking
institutions in the City of New York, New York are permitted or required by any applicable law to
close.




          “Capital Securities Guarantee” means the guarantee agreement dated as of September 29,
2010, of the Sponsor in respect of the Capital Securities.




          “Capital Security” has the meaning specified in Section 7.1.




          “Capital Security Beneficial Owner” means, with respect to a Book Entry Interest, a
Person who is the beneficial owner of such Book Entry Interest, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency
(directly as a Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).




          “Capital Security Certificate” means a certificate representing a Capital Security
substantially in the form of Exhibit A-1.




          “Certificate” means a Common Security Certificate or a Capital Security Certificate.




          “Citigroup” means Citigroup Inc., a Delaware corporation.



2









 






          “Clearing Agency” means an organization registered as a “Clearing Agency” pursuant to
Section 17A of the Exchange Act that is acting as depositary for the Capital Securities and in
whose name or in the name of a nominee of that organization shall be registered a Global
Certificate and which shall undertake to effect book entry transfers and pledges of the Capital
Securities.




          “Clearing Agency Participant” means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Clearing Agency effects book entry
transfers and pledges of securities deposited with the Clearing Agency.




          “Closing Date” means October 5, 2010.




          “Code” means the Internal Revenue Code of 1986, as amended from time to time, or any
successor legislation.




          “Commission” means the Securities and Exchange Commission.




          “Common Security” has the meaning specified in Section 7.1.




          “Common Security Certificate” means a definitive certificate in fully registered form
representing a Common Security substantially in the form of Exhibit A-2.




          “Company Indemnified Person” means (a) any Regular Trustee; (b) any Affiliate of any
Regular Trustee; (c) any officers, directors, shareholders, members, partners, employees,
representatives or agents of any Regular Trustee; or (d) any officer, employee or agent of the
Trust or its Affiliates.




          “Corporate Trust Office” means the office of the Institutional Trustee at which the
corporate trust business of the Institutional Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Declaration is located at 101 Barclay
Street-8W, New York, New York 10286.




          “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.




          “Debenture Issuer” means Citigroup Inc. (or the Sponsor) in its capacity as issuer of
the Debentures under the Indenture.




          “Debenture Trustee” means The Bank of New York Mellon, as trustee under the Indenture
until a successor is appointed thereunder, and thereafter means such successor trustee.




          “Debentures” means the series of Debentures to be issued by the Debenture Issuer under
the Indenture to be held by the Institutional Trustee, a specimen certificate for such series of
Debentures being Exhibit B.




          “Default” in respect of the Securities means a Default (as defined in the Indenture)
has occurred and is continuing in respect of the Debentures.



3









 






          “Definitive Capital Security Certificates” has the meaning set forth in Section 9.4.




          “Delaware Trustee” has the meaning set forth in Section 5.2.




          “Distribution” has the meaning set forth in Section 6.1.




          “DTC” means the Depository Trust Company, the initial Clearing Agency.




          “Exchange” has the meaning set forth in Section 6.2(a).




          “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time, or any successor legislation.




          “Exchange Agreements” means the exchange agreements, dated June 9, 2009 and amended
the date hereof, by and between the United States Department of the Treasury and Citigroup, and by
and between the Federal Deposit Insurance Corporation and Citigroup.




          “Fiduciary Indemnified Person” has the meaning set forth in Section 10.4(b).




          “Global Certificate” has the meaning set forth in Section 9.4.




          “Holder” means a Person in whose name a Certificate representing a Security is
registered, such Person being a beneficial owner within the meaning of the Statutory Trust Act.




          “Indemnified Person” means a Company Indemnified Person or a Fiduciary Indemnified
Person.




          “Indenture” means the Indenture, dated as of July 23, 2004 (as supplemented from time
to time), between the Debenture Issuer and the Debenture Trustee, pursuant to which the Debentures
are to be issued.




          “Institutional Trustee” means the Trustee meeting the eligibility requirements set
forth in Section 5.3.




          “Institutional Trustee Account” has the meaning set forth in Section 3.8(c).




          “Investment Company” means an investment company as defined in the Investment Company
Act.




          “Investment Company Act” means the Investment Company Act of 1940, as amended from
time to time, or any successor legislation.




          “Investment Company Event” has the meaning set forth in Annex I hereto.




          “Legal Action” has the meaning set forth in Section 3.6(g).




          “Majority in liquidation amount of the Securities” means, except as provided in the
terms of the Capital Securities or by the Trust Indenture Act, Holder(s) of outstanding Securities
voting together as a single class or, as the context may require, Holders of outstanding



4









 






Capital Securities or Holders of outstanding Common Securities voting separately as a class,
who are the record owners of an aggregate liquidation amount representing more than 50% of the
aggregate liquidation amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant class.




          “Officers’ Certificate” means, with respect to any Person, a certificate signed by two
Authorized Officers of such Person; provided that only one Authorized Officer of the Trust is
required to sign on behalf of the Trust any Officers’ Certificate delivered pursuant to Section 2.5
of this Declaration. Any Officers’ Certificate delivered with respect to compliance with a
condition or covenant provided for in this Declaration shall include:




          (a) a statement that each officer signing the Officers’ Certificate has read the covenant or
condition and the definitions relating thereto;




          (b) a brief statement of the nature and scope of the examination or investigation undertaken
by each officer in rendering the Officers’ Certificate;




          (c) a statement that each such officer has made such examination or investigation as, in such
officer’s opinion, is necessary to enable such officer to express an informed opinion as to whether
or not such covenant or condition has been complied with; and




          (d) a statement as to whether, in the opinion of each such officer, such condition or covenant
has been complied with.




          “Paying Agent” has the meaning specified in Section 3.8(h).




          “Payment Amount” has the meaning specified in Section 6.1.




          “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.




          “Private Placement Legend” has the meaning specified in Section 9.1(b).




          “Quorum” means any one Regular Trustee or, if there is only one Regular Trustee, such
Regular Trustee.




          “Regular Trustee” has the meaning specified in Section 5.1.




          “Related Party” means, with respect to the Sponsor, any direct or indirect wholly
owned subsidiary of the Sponsor or any other Person that owns, directly or indirectly, 100% of the
outstanding voting securities of the Sponsor.




          “Responsible Officer” means, with respect to the Institutional Trustee, any officer
within the Corporate Trust Office of the Institutional Trustee with direct responsibility for the
administration of this Declaration and also means, with respect to a particular corporate trust



5









 






matter, any other officer to whom such matter is referred because of that officer’s knowledge
of and familiarity with the particular subject.




          “Rule 3a-5” means Rule 3a-5 under the Investment Company Act.




          “Securities” means the Common Securities and the Capital Securities.




          “Securities Act” means the Securities Act of 1933, as amended from time to time, or
any successor legislation.




          “Security Registrar” has the meaning set forth in Section 9.2(a).




          “Special Event” has the meaning set forth in Annex I hereto.




          “Sponsor” means Citigroup Inc. or any successor entity in a merger, consolidation or
amalgamation, in its capacity as sponsor of the Trust.




          “Sponsor Affiliated Holder” has the meaning set forth in Section 6.2(a).




          “Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
§3801 et seq., as it may be amended from time to time, or any successor legislation.




          “Successor Delaware Trustee” has the meaning set forth in Section 5.6(b).




          “Successor Entity” has the meaning set forth in Section 3.15(b).




          “Successor Institutional Trustee” has the meaning set forth in Section 5.6.




          “Successor Securities” has the meaning set forth in Section 3.15(b).




          “Super Majority” has the meaning set forth in Section 2.6(a)(ii).




          “Tax Event” has the meaning set forth in Annex I hereto.




          “10% in liquidation amount of the Securities” means, except as provided in the terms
of the Capital Securities or by the Trust Indenture Act, Holder(s) of outstanding Securities voting
together as a single class or, as the context may require, Holders of outstanding Capital
Securities or Holders of outstanding Common Securities voting separately as a class, who are the
record owners of an aggregate liquidation amount representing 10% or more of the aggregate
liquidation amount (including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the voting percentages
are determined) of all outstanding Securities of the relevant class.




          “Three-month LIBOR” means, with respect to any quarterly interest period, the rate
(expressed as a percentage per annum) for deposits in United States dollars for a three-month
period, as applicable, commencing on the first day of that quarterly interest period that appears
on the Reuters Screen LIBOR as of 11:00 a.m. (London time) on the LIBOR determination date for that
quarterly interest period, as the case may be. If such rate does not appear on Reuters Screen
LIBOR, three-month LIBOR will be determined on the basis of the



6









 






rates at which deposits in United States dollars for a three-month period commencing on the
first day of that quarterly interest period, as applicable, and in a principal amount of not less
than $1 million are offered to prime banks in the London interbank market by four major banks in
the London interbank market selected by the calculation agent (after consultation with Citigroup),
at approximately 11:00 a.m., London time, on the LIBOR determination date for that quarterly
interest period. The calculation agent will request the principal London office of each of such
banks to provide a quotation of its rate. If at least two such quotations are provided, three-month
LIBOR with respect to that quarterly interest period, as applicable, will be the arithmetic mean
(rounded upward if necessary to the nearest whole multiple of 0.00001%) of such quotations. If
fewer than two quotations are provided, three-month LIBOR with respect to that quarterly interest
period, as applicable, will be the arithmetic mean (rounded upward if necessary to the nearest
whole multiple of 0.00001%) of the rates quoted by three major banks in New York City selected by
the calculation agent, at approximately 11:00 a.m., New York City time, on the first day of that
quarterly interest period, as applicable, for loans in United States dollars to leading European
banks for a three-month period, as applicable, commencing on the first day of that quarterly
interest period and in a principal amount of not less than $1 million. However, if fewer than three
banks selected by the calculation agent to provide quotations are quoting as described above,
three-month LIBOR for that quarterly interest period, as applicable, will be the same as
three-month LIBOR as determined for the previous interest period or, in the case of the quarterly
interest period beginning on October 30, 2015, 0.29000%. The establishment of three-month LIBOR for
each quarterly interest period, as applicable, by the calculation agent shall (in the absence of
manifest error) be final and binding.




          “Transfer Certification” has the meaning set forth in Section 9.2(b).




          “Transfer Opinion” has the meaning set forth in Section 9.2(b).




          “Treasury Regulations” means the income tax regulations, including temporary and
proposed regulations, promulgated under the Code by the United States Treasury, as such regulations
may be amended from time to time (including corresponding provisions of succeeding regulations).




          “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 Indenture Act” means the Trust Indenture Act of 1939, as amended from time to
time, or any successor legislation.




          “Underwriting Agreement” means the Underwriting Agreement for the offering and resale
of Capital Securities in the form of Exhibit C.



ARTICLE II

TRUST INDENTURE ACT



SECTION 2.1 Trust Indenture Act; Application.







7









 









          (a) This Declaration is subject to the provisions of the Trust Indenture Act that are required
to be part of this Declaration and shall, to the extent applicable, be governed by such provisions.




          (b) The Institutional Trustee shall be the only Trustee that is a Trustee for the purposes of
the Trust Indenture Act.




          (c) If and to the extent that any provision of this Declaration limits, qualifies or conflicts
with the duties imposed by §§ 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.




          (d) The application of the Trust Indenture Act to this Declaration shall not affect the nature
of the Securities as equity securities representing undivided beneficial interests in the assets of
the Trust.


SECTION 2.2 Lists of Holders of Securities.





          (a) Each of the Sponsor and the Regular Trustees on behalf of the Trust shall provide the
Institutional Trustee (i) within 14 days after each record date for payment of Distributions, a
list, in such form as the Institutional Trustee may reasonably require, of the names and addresses
of the Holders of the Securities (“List of Holders”) as of such record date, provided, that neither
the Sponsor nor the Regular Trustees on behalf of the Trust shall be obligated to provide such List
of Holders at any time the List of Holders does not differ from the most recent List of Holders
given to the Institutional Trustee by the Sponsor and the Regular Trustees on behalf of the Trust,
and (ii) at any other time, within 30 days of receipt by the Trust of a written request for a List
of Holders as of a date no more than 14 days before such List of Holders is given to the
Institutional Trustee. The Institutional Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of Holders given to it or which it
receives in the capacity as Paying Agent (if acting in such capacity), provided, that the
Institutional Trustee may destroy any List of Holders previously given to it on receipt of a new
List of Holders.




          (b) The Institutional Trustee shall comply with its obligations under §§ 311(a), 311(b) and
312(b) of the Trust Indenture Act.


SECTION 2.3 Reports by the Institutional Trustee.





          Within 60 days after May 15 of each year (commencing with the year of the first anniversary of
the Closing Date), the Institutional Trustee shall provide to the Holders of the Capital Securities
such reports as are required by § 313 of the Trust Indenture Act, if any, in the form and in the
manner provided by § 313 of the Trust Indenture Act. The Institutional Trustee shall also comply
with the requirements of § 313(d) of the Trust Indenture Act.


SECTION 2.4 Periodic Reports to Institutional Trustee.





          Each of the Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Institutional Trustee such documents, reports and information as required by § 314 of the Trust
Indenture Act (if any) and the compliance certificate required by § 314 of the Trust



8









 






Indenture Act in the form, in the manner and at the times required by § 314 of the Trust
Indenture Act.


SECTION 2.5 Evidence of Compliance with Conditions Precedent.





          Each of the Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Institutional Trustee such evidence of compliance with any conditions precedent provided for in
this Declaration that relate to any of the matters set forth in § 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to § 314(c)(1) of the
Trust Indenture Act may be given in the form of an Officers’ Certificate.


SECTION 2.6 Defaults; Waiver.





          (a) The Holders of a Majority in liquidation amount of Capital Securities may, by vote, on
behalf of the Holders of all of the Capital Securities, waive any past Default in respect of the
Capital Securities and its consequences, provided, that if the underlying Default under the
Indenture:




     (i) is not waivable under the Indenture, the Default under the Declaration shall also
not be waivable; or




     (ii) is waivable only with the consent of holders of more than a majority in principal
amount of the Debentures (a “Super Majority”) affected thereby, only the Holders of at least
the proportion in aggregate liquidation amount of the Capital Securities that the relevant
Super Majority represents of the aggregate principal amount of the Debentures outstanding
may waive such Default in respect of the Capital Securities under the Declaration.




The foregoing provisions of this Section 2.6(a) shall be in lieu of § 316(a)(1)(B) of the Trust
Indenture Act and such § 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from
this Declaration and the Securities, as permitted by the Trust Indenture Act. Upon such waiver,
any such default shall cease to exist, and any Default with respect to the Capital Securities
arising therefrom shall be deemed to have been cured, for every purpose of this Declaration, but no
such waiver shall extend to any subsequent or other default or a Default with respect to the
Capital Securities or impair any right consequent thereon. Any waiver by the Holders of the
Capital Securities of a Default with respect to the Capital Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of any such Default with respect to the
Common Securities for all purposes of this Declaration without any further act, vote, or consent of
the Holders of the Common Securities.




          (b) The Holders of a Majority in liquidation amount of the Common Securities may, by vote, on
behalf of the Holders of all of the Common Securities, waive any past Default with respect to the
Common Securities and its consequences, provided, that if the underlying Default under the
Indenture:




     (i) is not waivable under the Indenture, except where the Holders of the Common
Securities are deemed to have waived such Default under the Declaration as



9









 






provided in this Section 2.6(b), the Default under the Declaration shall also not be
waivable; or




     (ii) is waivable only with the consent of a Super Majority, except where the Holders of
the Common Securities are deemed to have waived such Default under the Declaration as
provided in this Section 2.6(b), only the Holders of at least the proportion in aggregate
liquidation amount of the Common Securities that the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding may waive such Default in
respect of the Common Securities under the Declaration;




provided, further each Holder of Common Securities will be deemed to have waived any such Default
and all Defaults with respect to the Common Securities and its consequences until all Defaults with
respect to the Capital Securities have been cured, waived or otherwise eliminated, and until such
Defaults with respect to the Capital Securities have been so cured, waived or otherwise eliminated,
the Institutional Trustee will be deemed to be acting solely on behalf of the Holders of the
Capital Securities and only the Holders of the Capital Securities will have the right to direct the
Institutional Trustee in accordance with the terms of the Securities. The foregoing provisions of
this Section 2.6(b) shall be in lieu of §§ 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act
and such §§ 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded
from this Declaration and the Securities, as permitted by the Trust Indenture Act. Subject to the
foregoing provisions of this Section 2.6(b), upon the waiver of a Default by the Holders of a
Majority in liquidation amount of the Common Securities, any such default shall cease to exist and
any Default with respect to the Common Securities arising therefrom shall be deemed to have been
cured for every purpose of this Declaration, but no such waiver shall extend to any subsequent or
other default or Default with respect to the Common Securities or impair any right consequent
thereon.




          (c) A waiver of a Default under the Indenture by the Institutional Trustee at the direction of
the Holders of the Capital Securities, constitutes a waiver of the corresponding Default under this
Declaration. The foregoing provisions of this Section 2.6(c) shall be in lieu of § 316(a)(1)(B) of
the Trust Indenture Act and such § 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration and the Securities, as permitted by the Trust Indenture Act.


SECTION 2.7 Default; Notice.





          (a) The Institutional Trustee shall, within 90 days after the occurrence of a Default,
transmit by mail, first class postage prepaid, to the Holders of the Securities, notices of (i) all
defaults with respect to the Securities actually known to a Responsible Officer of the
Institutional Trustee, unless such defaults have been cured before the giving of such notice (the
term “defaults” for the purposes of this Section 2.7(a) being hereby defined to be a Default as
defined in the Indenture, not including any periods of grace provided for therein and irrespective
of the giving of any notice provided therein) and (ii) any notice of default received from the
Indenture Trustee with respect to the Debentures, which notice from the Institutional Trustee to
the Holders shall state that a Default under the Indenture also constitutes a Default with respect
to the Securities; provided that, except for a default in the payment of principal of (or premium,
if any) or interest on any of the Debentures or in the payment of any sinking fund installment




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established for the Debentures, the Institutional Trustee shall be protected in withholding
such notice if and so long as a Responsible Officer of the Institutional Trustee in good faith
determines that the withholding of such notice is in the interests of the Holders of the
Securities.




          (b) The Institutional Trustee shall not be deemed to have knowledge of any default except:




          (i) a default under Sections 5.7(b) and 5.7(c) of the Indenture; or




     (ii) any default as to which the Institutional Trustee shall have received written
notice or of which a Responsible Officer of the Institutional Trustee charged with the
administration of the Declaration shall have actual knowledge.



ARTICLE III

ORGANIZATION




SECTION 3.1 Name.





          The Trust is named “Citigroup Capital XIII,” as such name may be modified from time to time by
the Regular Trustees following written notice to the Institutional Trustee, the Delaware Trustee
and the Holders of Securities. The Trust’s activities may be conducted under the name of the Trust
or any other name deemed advisable by the Regular Trustees.



SECTION 3.2 Office.





          The address of the principal office of the Trust is c/o Citigroup Inc., 399 Park Avenue, New
York, NY 10043. On ten Business Days written notice to the Institutional Trustee, the Delaware
Trustee and the Holders of Securities, the Regular Trustees may designate another principal office.



SECTION 3.3 Purpose.





          The exclusive purposes and functions of the Trust are (a) to issue the Capital Securities, (b)
to issue and sell the Common Securities, (c) to acquire the Debentures from the Debenture Issuer,
and (d) 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, take any action 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 3.4 Authority.





          Subject to the limitations provided in this Declaration and to the specific duties of the
Institutional Trustee, the Regular Trustees shall have exclusive and complete authority to carry
out the purposes of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust and an action taken by the
Institutional Trustee on behalf of the Trust in accordance with its powers shall constitute the act
of and serve to bind the Trust. In dealing with the Trustees acting on behalf of the Trust, no



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person shall be required to inquire into the authority of the Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power and authority of the
Trustees as set forth in this Declaration.



SECTION 3.5 Title to Property of the Trust.





          Except as provided in Section 3.8 with respect to the Debentures and the Institutional Trustee
Account or as otherwise provided in this Declaration, legal title to all assets of the Trust shall
be vested in the Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial interest in the assets of the Trust.



SECTION 3.6 Powers and Duties of the Regular Trustees.





          The Regular Trustees shall have the exclusive power, duty and authority to cause the Trust to
engage in the following activities:




          (a) to issue the Capital Securities as described in the Exchange Agreements and in accordance
with this Declaration and to issue and sell the Common Securities in accordance with this
Declaration; provided, however, that the Trust may issue no more than one series of Capital
Securities and no more than one series of Common Securities, and, provided further, that there
shall be no interests in the Trust other than the Securities, and the issuance of Securities shall
be limited to a simultaneous issuance of both Capital Securities and Common Securities on the
Closing Date;




          (b) in connection with the issuance of the Capital Securities, at the direction of the
Sponsor, to:




     (i) execute and file with the Commission on behalf of the Trust a registration
statement on Form S-3 or on another appropriate form, or a registration statement under Rule
462(b) of the Securities Act, in each case prepared by the Sponsor, including any
pre-effective or post-effective amendments thereto, relating to the registration under the
Securities Act of the Capital 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
Capital Securities in any State in which the Sponsor has determined to qualify or register
such Capital Securities for resale;




     (iii) execute and file an application, prepared by the Sponsor, to the New York Stock
Exchange, Inc. or any other national stock exchange for listing upon notice of issuance of
any Capital Securities;




     (iv) execute and file with the Commission on behalf of the Trust a registration
statement on Form 8-A, prepared by the Sponsor, including any pre-effective or
post-effective amendments thereto, relating to the registration of the Capital Securities
under Section 12(b) of the Exchange Act; and



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     (v) deliver the Underwriting Agreement providing for the resale of the Capital
Securities;




          (c) to acquire the Debentures as described in the Exchange Agreements; provided, however, that
the Regular Trustees shall cause legal title to the Debentures to be held of record in the name of
the Institutional Trustee for the benefit of the Holders of the Capital Securities and the Holders
of Common Securities;




          (d) to give the Sponsor and the Institutional Trustee prompt written notice of the occurrence
of a Special Event; provided, that the Regular Trustees shall consult with the Sponsor and the
Institutional Trustee before taking or refraining from taking any ministerial action in relation to
a Special Event;




          (e) to establish a record date with respect to all actions to be taken hereunder that require
a record date be established, including and with respect to, for the purposes of §316(c) of the
Trust Indenture Act, Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Capital Securities and Holders of Common Securities as to such actions
and applicable record dates;




          (f) to take all actions and perform such duties as may be required of the Regular Trustees
pursuant to the terms of the Securities;




          (g) to bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or
otherwise adjust claims or demands of or against the Trust (“Legal Action”), unless pursuant to
Section 3.8(e), the Institutional Trustee has the exclusive power to bring such Legal Action;




          (h) to employ or otherwise engage employees and agents (who may be designated as officers with
titles) and managers, contractors, advisors, and consultants and pay reasonable compensation for
such services;




          (i) to cause the Trust to comply with the Trust’s obligations under the Trust Indenture Act;




          (j) to give the certificate required by § 314(a)(4) of the Trust Indenture Act to the
Institutional Trustee, which certificate may be executed by any Regular Trustee;




          (k) to incur expenses that are necessary or incidental to carry out any of the purposes of the
Trust;




          (l) to act as, or appoint another Person to act as, registrar and transfer agent for the
Securities;




          (m) to give prompt written notice to the Holders of the Securities of any notice received from
the Debenture Issuer of its election to defer payments of interest on the Debentures by extending
the interest payment period under the Indenture;



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          (n) to take all action that may be necessary or appropriate for the preservation and the
continuation of the Trust’s valid existence, rights, franchises and privileges as a statutory trust
under the laws of the State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Capital Securities or to enable
the Trust to effect the purposes for which the Trust was created;




          (o) to take any action, not inconsistent with this Declaration or with applicable law, that
the Regular Trustees determine in their discretion to be necessary or desirable in carrying out the
activities of the Trust as set out in this Section 3.6, including, but not limited to:




     (i) causing the Trust not to be deemed to be an Investment Company required to
be registered under the Investment Company Act;




     (ii) causing the Trust to be classified for United States federal income tax
purposes as a grantor trust; and




     (iii) cooperating with the Debenture Issuer to ensure that the Debentures will
be treated as indebtedness of the Debenture Issuer for United States federal income
tax purposes;




provided, that any such action does not adversely affect the interests of Holders;




          (p) to take all action necessary to cause all applicable tax returns and tax information
reports that are required to be filed with respect to the Trust to be duly prepared and filed by
the Regular Trustees, on behalf of the Trust; and




          (q) 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.




          The Regular Trustees must exercise the powers set forth in this Section 3.6 in a manner that
is consistent with the purposes and functions of the Trust set out in Section 3.3, and the Regular
Trustees shall not take any action that is inconsistent with the purposes and functions of the
Trust set forth in Section 3.3.




          Subject to this Section 3.6, the Regular Trustees shall have none of the powers or the
authority of the Institutional Trustee set forth in Section 3.8.




          Any expenses incurred by the Regular Trustees pursuant to this Section 3.6 shall be reimbursed
by the Debenture Issuer.



SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.





          (a) The Trust shall not, and the Trustees (including the Institutional Trustee) shall not
cause the Trust to, engage in any activity other than as required or authorized by this
Declaration. In particular, the Trust shall not:



14









 






     (i) invest any proceeds received by the Trust from holding the Debentures, but shall
promptly distribute all such proceeds to Holders of Securities pursuant to the terms of this
Declaration and of the Securities;




     (ii) acquire any assets other than as expressly provided herein;




     (iii) possess Trust property for other than a Trust purpose;




     (iv) make any loans or incur any indebtedness;




     (v) possess any power or otherwise act in such a way as to vary the Trust assets or the
terms of the Securities in any way whatsoever;




     (vi) issue any securities or other evidences of beneficial ownership of, or beneficial
interest in, the Trust other than the Securities; or




     (vii) other than as provided in this Declaration or Annex I, (A) direct the time,
method and place of exercising any trust or power conferred upon the Debenture Trustee with
respect to the Debentures, (B) waive any past Default that is waivable under the Indenture,
(C) exercise any right to rescind or annul any declaration that the principal of all the
Debentures shall be due and payable or (D) consent to any amendment, modification or
termination of the Indenture or the Debentures where such consent shall be required unless
the Trust shall have obtained an opinion of nationally recognized independent tax counsel
experienced in such matters to the effect that as a result of such action, the Trust will
not fail to be classified as a grantor trust for United States federal income tax purposes.



SECTION 3.8 Powers and Duties of the Institutional Trustee.





          (a) The legal title to the Debentures shall be owned by and held of record in the name of the
Institutional Trustee in trust for the benefit of the Holders of the Securities. The right, title
and interest of the Institutional Trustee to the Debentures shall vest automatically in each Person
who may hereafter be appointed as Institutional Trustee in accordance with Section 5.6. Such
vesting and cessation of title shall be effective whether or not conveyancing documents with regard
to the Debentures have been executed and delivered.




          (b) The Institutional Trustee shall not transfer its right, title and interest in the
Debentures to the Regular Trustees or to the Delaware Trustee (if the Institutional Trustee does
not also act as Delaware Trustee).




          (c) The Institutional Trustee shall:




     (i) establish and maintain a segregated non-interest bearing trust account (the
“Institutional Trustee Account”) in the name of and under the exclusive control of the
Institutional Trustee on behalf of the Holders of the Securities and, upon the receipt of
payments of funds made in respect of the Debentures held by the Institutional Trustee,
deposit such funds into the Institutional Trustee Account and make payments to the Holders
of the Capital Securities and Holders of the Common Securities from the



15









 






Institutional Trustee Account in accordance with Section 6.1. Funds in the
Institutional Trustee Account shall be held uninvested until disbursed in accordance with
this Declaration. The Institutional Trustee Account shall be an account that is maintained
with a banking institution the rating on whose long-term unsecured indebtedness assigned by
a “nationally recognized statistical rating organization,” as that term is defined for
purposes of Rule 436(g)(2) under the Securities Act, is at least equal to the rating
assigned to the Capital Securities by a nationally recognized statistical rating
organization;




     (ii) engage in such ministerial activities as shall be necessary or appropriate to
effect the redemption of the Capital Securities and the Common Securities to the extent the
Debentures are redeemed or mature and to effect the Exchange of Capital Securities and
Common Securities for Debentures to the extent a Sponsor Affiliated Holder elects to effect
such Exchange pursuant to Section 6.2 hereof; and




     (iii) upon written notice of distribution issued by the Regular Trustees in accordance
with the terms of the Securities, engage in such ministerial activities as shall be
necessary or appropriate to effect the distribution of the Debentures to Holders of
Securities upon the occurrence of certain Special Events or other specified circumstances
pursuant to the terms of the Securities.




          (d) The Institutional Trustee shall take all actions and perform such duties as may be
specifically required of the Institutional Trustee pursuant to the terms of the Securities.




          (e) Subject to Section 2.6, the Institutional Trustee shall take any Legal Action which arises
out of or in connection with a Default of which a Responsible Officer of the Institutional Trustee
has actual knowledge or the Institutional Trustee’s duties and obligations under this Declaration
or the Trust Indenture Act.




          (f) The Institutional Trustee shall not resign as a Trustee unless either:




     (i) the Trust has been completely liquidated and the proceeds of the liquidation
distributed to the Holders of Securities pursuant to the terms of the Securities; or




     (ii) a Successor Institutional Trustee has been appointed and has accepted that
appointment in accordance with Section 5.6.




          (g) The Institutional Trustee shall have the legal power to exercise all of the rights, powers
and privileges of a holder of Debentures under the Indenture and, if a Default actually known to a
Responsible Officer of the Institutional Trustee occurs and is continuing, the Institutional
Trustee shall, for the benefit of Holders of the Securities, enforce its rights as holder of the
Debentures subject to the rights of the Holders pursuant to the terms of such Securities, this
Declaration, the Statutory Trust Act and the Trust Indenture Act.




          (h) The Institutional Trustee may authorize one or more Persons (each, a “Paying Agent”) to
pay Distributions, redemption payments or liquidation payments on behalf of the Trust with respect
to all securities and any such Paying Agent shall comply with § 317(b) of



16









 






the Trust Indenture Act. Any Paying Agent may be removed by the Institutional Trustee at any
time and a successor Paying Agent or additional Paying Agents may be appointed at any time by the
Institutional Trustee.




          (i) Subject to this Section 3.8, the Institutional Trustee shall have none of the duties,
liabilities, powers or the authority of the Regular Trustees set forth in Section 3.6.




          The Institutional Trustee must exercise the powers set forth in this Section 3.8 in a manner
that is consistent with the purposes and functions of the Trust set out in Section 3.3, and the
Institutional Trustee shall not take any action that is inconsistent with the purposes and
functions of the Trust set out in Section 3.3.



SECTION 3.9 Certain Duties and Responsibilities of the Institutional Trustee.





          (a) The Institutional Trustee, before the occurrence of any Default and after the curing of
all Defaults that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Declaration and no implied covenants shall be read into this
Declaration against the Institutional Trustee. In case a Default has occurred (that has not been
cured or waived pursuant to Section 2.6) of which a Responsible Officer of the Institutional
Trustee has actual knowledge, the Institutional Trustee shall exercise such of the rights and
powers vested in it by this Declaration, and use the same degree of care and skill in the exercise
of such rights and powers, as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.




          (b) No provision of this Declaration shall be construed to relieve the Institutional Trustee
from liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:




     (i) prior to the occurrence of a Default and after the curing or waiving of all such
Defaults that may have occurred:




     (A) the duties and obligations of the Institutional Trustee shall be determined
solely by the express provisions of this Declaration and the Institutional Trustee
shall not be liable except for the performance of such duties and obligations as are
specifically set forth in this Declaration, and no implied covenants or obligations
shall be read into this Declaration against the Institutional Trustee; and




     (B) in the absence of willful misconduct on the part of the Institutional
Trustee, the Institutional Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Institutional Trustee and conforming to
the requirements of this Declaration; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished to
the Institutional Trustee, the Institutional Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Declaration (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein);



17









 






     (ii) the Institutional Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer of the Institutional Trustee, unless it shall be proved
that the Institutional Trustee was negligent in ascertaining the pertinent facts;




     (iii) the Institutional Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the Holders of
not less than a Majority in liquidation amount of the Securities relating to the time,
method and place of conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the Institutional Trustee under
this Declaration;




     (iv) no provision of this Declaration shall require the Institutional Trustee to expend
or risk its own funds or otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or indemnity reasonably
satisfactory to the Institutional Trustee against such risk or liability is not reasonably
assured to it;




     (v) the Institutional Trustee’s sole duty with respect to the custody, safe keeping and
physical preservation of the Debentures and the Institutional Trustee Account shall be to
deal with such property in a similar manner as the Institutional Trustee deals with similar
property for its own account, subject to the protections and limitations on liability
afforded to the Institutional Trustee under this Declaration and the Trust Indenture Act;




     (vi) the Institutional Trustee shall have no duty or liability for or with respect to
the value, genuineness, existence or sufficiency of the Debentures or the payment of any
taxes or assessments levied thereon or in connection therewith;




     (vii) the Institutional Trustee shall not be liable for any interest on any money
received by it except as it may otherwise agree with the Sponsor. Money held by the
Institutional Trustee need not be segregated from other funds held by it except in relation
to the Institutional Trustee Account maintained by the Institutional Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by law; and




     (viii) the Institutional Trustee shall not be responsible for monitoring the compliance
by the Regular Trustees or the Sponsor with their respective duties under this Declaration,
nor shall the Institutional Trustee be liable for any default or misconduct of the Regular
Trustees or the Sponsor.



SECTION 3.10 Certain Rights of Institutional Trustee.





     (a) Subject to the provisions of Section 3.9:




     (i) the Institutional Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other



18









 






evidence of indebtedness or other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties;




     (ii) any direction or act of the Sponsor or the Regular Trustees contemplated by this
Declaration shall be sufficiently evidenced by an Officers’ Certificate;




     (iii) whenever in the administration of this Declaration, the Institutional Trustee
shall deem it desirable that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Institutional Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers’ Certificate which, upon receipt of such request, shall
be promptly delivered by the Sponsor or the Regular Trustees;




     (iv) the Institutional Trustee shall have no duty to see to any recording, filing or
registration of any instrument (including any financing or continuation statement or any
filing under tax or securities laws) or any rerecording, refiling or registration thereof;




     (v) the Institutional Trustee may consult with counsel or other experts of its
selection and the advice or opinion of such counsel and experts with respect to legal
matters or advice within the scope of such experts’ area of expertise shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such advice or opinion, such counsel may
be counsel to the Sponsor or any of its Affiliates, and may include any of its employees.
The Institutional Trustee shall have the right at any time to seek instructions concerning
the administration of this Declaration from any court of competent jurisdiction;




     (vi) the Institutional Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Declaration at the request or direction of any Holder,
unless such Holder shall have provided to the Institutional Trustee security and indemnity,
reasonably satisfactory to the Institutional Trustee, against the costs, expenses (including
attorneys’ fees and expenses and the expenses of the Institutional Trustee’s agents,
nominees or custodians) and liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be requested by the
Institutional Trustee provided that nothing contained in this Section 3.10(a)(vi) shall be
taken to relieve the Institutional Trustee, upon the occurrence of a Default, of its
obligation to exercise the rights and powers vested in it by this Declaration;




     (vii) the Institutional Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Institutional Trustee, in its discretion
and after prior consultation with the Sponsor, may make such further inquiry or
investigation into such facts or matters as it may see fit at the expense of the Sponsor and
shall incur no liability of any kind by reason of such inquiry or investigation;



19









 






     (viii) the Institutional Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents, custodians, nominees
or attorneys and the Institutional Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it hereunder;




     (ix) the rights, privileges, protections, immunities and benefits given to the
Institutional Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforced by, the Institutional Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder by the
Institutional Trustee and appointed with due care by it;




     (x) any action taken by the Institutional Trustee or its agents hereunder shall bind
the Trust and the Holders of the Securities, and the signature of the Institutional Trustee
or its agents alone shall be sufficient and effective to perform any such action and no
third party shall be required to inquire as to the authority of the Institutional Trustee to
so act or as to its compliance with any of the terms and provisions of this Declaration,
both of which shall be conclusively evidenced by the Institutional Trustee’s or its agent’s
taking such action;




     (xi) whenever in the administration of this Declaration the Institutional Trustee shall
deem it desirable to receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Institutional Trustee (i) may request instructions
from the Holders of the Securities which instructions may only be given by the Holders of
the same proportion in liquidation amount of the Securities as would be entitled to direct
the Institutional Trustee under the terms of the Securities in respect of such remedy, right
or action, (ii) may refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in conclusively relying
on or acting in or accordance with such instructions;




     (xii) except as otherwise expressly provided by this Declaration, the Institutional
Trustee shall not be under any obligation to take any action that is discretionary under the
provisions of this Declaration;




     (xiii) in no event shall the Institutional Trustee be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Institutional Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action; and




     (xiv) in no event shall the Institutional Trustee be responsible or liable for any
failure or delay in the performance of its obligations under this Declaration arising out of
or caused by, directly or indirectly, forces beyond its reasonable control, including
without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or
military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of third party utilities, communications or computer (software or
hardware) services.



20









 






          (b) No provision of this Declaration shall be deemed to impose any duty or obligation on the
Institutional Trustee to perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the
Institutional Trustee shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Institutional Trustee shall be construed to be a
duty.



SECTION 3.11 Delaware Trustee.





          The Delaware Trustee is appointed to serve as the trustee of the Trust in the State of
Delaware for the sole purpose of satisfying the requirement of Section 3807(a) of the Statutory
Trust Act that the Trust have at least one trustee with a principal place of business in the State
of Delaware. It is understood and agreed by the parties hereto that the Delaware Trustee shall
have none of the duties or liabilities of the Regular Trustees or the Institutional Trustee. The
duties of the Delaware Trustee shall be limited to (i) accepting legal process served on the Trust
in the State of Delaware and (ii) the execution of any certificates required to be filed with the
Delaware Secretary of State which the Delaware Trustee is required to execute under Section 3811 of
the Statutory Trust Act. To the extent that, at law or in equity, the Delaware Trustee has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or the Holders, it is
hereby understood and agreed by the other parties hereto that such duties and liabilities are
replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this
Declaration. The Delaware trustee shall have no liability for the acts or omissions of the Regular
Trustees or the Institutional Trustee. The Delaware Trustee shall be entitled to all of the same
rights, protections, indemnities and immunities under this Declaration and with respect to the
Trust as the Institutional Trustee.



SECTION 3.12 Execution of Documents.





          Unless otherwise determined by the Regular Trustees, and except as otherwise required by the
Statutory Trust Act, any Regular Trustee is authorized to execute on behalf of the Trust any
documents that the Regular Trustees have the power and authority to execute pursuant to Section
3.6; provided, that the registration statement referred to in Section 3.6(b)(i), including any
amendments thereto, shall be signed by all of the Regular Trustees.



SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.





          The recitals contained in this Declaration and the Securities 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 or the Securities.



SECTION 3.14 Duration of Trust.





          The Trust, unless dissolved and terminated pursuant to the provisions of Article VIII hereof,
shall have existence for sixty (60) years from the Closing Date.



21









 





SECTION 3.15 Mergers.





          (a) The Trust may not consolidate, amalgamate, merge with or into, or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety to any corporation
or other body, except as described in Section 3.15(b) and (c).




          (b) The Trust may, with the consent of the Regular Trustees or, if there are more than two, a
majority of the Regular Trustees and without the consent of the Holders of the Securities, the
Delaware Trustee or the Institutional Trustee, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any State; provided, that:




          (i) such successor entity (the “Successor Entity”) either:




     (A) expressly assumes all of the obligations of the Trust under the Securities; or




     (B) substitutes for the Securities other securities having substantially the
same terms as the Capital Securities (the “Successor Securities”) so long as the
Successor Securities rank the same as the Capital Securities rank with respect to
Distributions and payments upon liquidation, redemption and otherwise;




     (ii) the Debenture Issuer expressly acknowledges a trustee of the Successor Entity that
possesses the same powers and duties as the Institutional Trustee in its capacity as the
Holder of the Debentures;




     (iii) the Capital Securities or any Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national securities exchange
or with any other organization on which the Capital Securities are then listed or quoted;




     (iv) such merger, consolidation, amalgamation or replacement does not cause the Capital
Securities (including any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization;




     (v) such merger, consolidation, amalgamation or replacement does not adversely affect
the rights, preferences and privileges of the Holders of the Securities (including any
Successor Securities) in any material respect (other than with respect to any dilution of
such Holders’ interests in the new entity as a result of such merger, consolidation,
amalgamation or replacement);




     (vi) such Successor Entity has a purpose identical to that of the Trust;




     (vii) prior to such merger, consolidation, amalgamation or replacement, the Trust has
received an opinion of a nationally recognized independent counsel to the Trust experienced
in such matters to the effect that:



22









 






     (A) such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the Holders of the Securities
(including any Successor Securities) in any material respect (other than with
respect to any dilution of the Holders’ interest in the new entity); and




     (B) following such merger, consolidation, amalgamation or replacement, neither
the Trust nor the Successor Entity will be required to register as an Investment
Company; and




     (C) following such merger, consolidation, amalgamation or replacement, the
Trust (or the Successor Entity) will continue to be classified as a grantor trust
for United States federal income tax purposes; and




     (viii) the Sponsor guarantees the obligations of such Successor Entity under the
Successor Securities at least to the extent provided by the Capital Securities Guarantee.




          (c) Notwithstanding Section 3.15(b), the Trust shall not, except with the consent of Holders
of 100% in liquidation amount of the Securities, consolidate, amalgamate, merge with or into, or be
replaced by any other entity or permit any other entity to consolidate, amalgamate, merge with or
into, or replace it, if in the opinion of a nationally recognized independent tax counsel
experienced in such matters, such consolidation, amalgamation, merger or replacement would cause
the Trust or the Successor Entity to be classified as other than a grantor trust for United States
federal income tax purposes.



ARTICLE IV

SPONSOR




SECTION 4.1 Sponsor’s Purchase of Common Securities.





          On the Closing Date, the Sponsor will purchase all of the Common Securities issued by the
Trust at the same time as the Capital Securities are issued.



SECTION 4.2 Responsibilities of the Sponsor.





          In connection with the issue and resale of the Capital Securities, the Sponsor shall have the
exclusive right and responsibility to engage in the following activities:




          (a) to prepare for filing by the Trust with the Commission a registration statement on Form
S-3 or on another appropriate form, or a registration statement under Rule 462(b) of the Securities
Act, including any pre-effective or post-effective amendments thereto, relating to the registration
under the Securities Act of the Capital Securities;




          (b) to determine the States in which to take appropriate action to qualify or register for
resale all or part of the Capital 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;



23









 






          (c) to prepare for filing by the Trust an application to the New York Stock Exchange, the
Nasdaq National Market or any other national stock exchange for listing upon notice of issuance of
any Capital Securities;




          (d) to prepare for filing by the Trust with the Commission a registration statement on Form
8-A, including any pre-effective or post-effective amendments thereto, relating to the registration
of the Capital Securities under Section 12(b) of the Exchange Act, including any amendments
thereto; and




          (e) to negotiate the terms of the Underwriting Agreement providing for the resale of the
Capital Securities; and




          (f) to otherwise carry out and perform the provisions of the Exchange Agreements providing
for, among other things, the issuance of the Capital Securities.



ARTICLE V

TRUSTEES




SECTION 5.1 Number of Trustees.





          The number of Trustees initially shall be five (5), and:




          (a) at any time before the issuance of any Securities, the Sponsor may, by written instrument,
increase or decrease the number of Trustees; and




          (b) after the issuance of any Securities, the number of Trustees may be increased or decreased
by vote of the Holders of a majority in liquidation amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities,




provided, however, that the number of Trustees shall in no event be less than two (2); provided
further that (1) 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, shall be an entity which has its
principal place of business in the State of Delaware (the “Delaware Trustee”); (2) there shall be
at least one Trustee who is an employee or officer of, or is affiliated with the Sponsor (a
“Regular Trustee”); and (3) one Trustee shall be the Institutional Trustee for so long as this
Declaration is required to qualify as an indenture under the Trust Indenture Act, and such Trustee
may also serve as Delaware Trustee if it meets the applicable requirements.



SECTION 5.2 Delaware Trustee.





          If required by the Statutory Trust Act, the Delaware Trustee shall be:




          (a) a natural person who is a resident of the State of Delaware; or




          (b) if not a natural person, an entity which has its principal place of business in the State
of Delaware, and otherwise meets the requirements of applicable law,



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provided, that if the Institutional Trustee has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable law, then the Institutional Trustee
shall also be the Delaware Trustee and Section 3.11 shall have no application.



SECTION 5.3 Institutional Trustee; Eligibility.





          (a) There shall at all times be one Trustee that shall act as Institutional Trustee which
shall:




          (i) not be an Affiliate of the Sponsor;




     (ii) be a corporation organized and doing business under the laws of the United States
of America or any State or Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S. dollars ($50,000,000), and
subject to supervision or examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining authority referred to above,
then for the purposes of this Section 5.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published; and




     (iii) if the Trust is excluded from the definition of an Investment Company solely by
means of Rule 3a-7 and to the extent Rule 3a-7 requires a trustee having certain
qualifications to hold title to the “eligible assets” of the Trust, the Institutional
Trustee shall possess those qualifications.




          (b) If at any time the Institutional Trustee shall cease to be eligible to so act under
Section 5.3(a), the Institutional Trustee shall immediately resign in the manner and with the
effect set forth in Section 5.6(c).




          (c) If the Institutional Trustee has or shall acquire any “conflicting interest” within the
meaning of § 310(b) of the Trust Indenture Act, the Institutional Trustee and the Holders of the
Common Securities (as if such Holders were the obligor referred to in § 310(b) of the Trust
Indenture Act) shall in all respects comply with the provisions of § 310(b) of the Trust Indenture
Act, subject to the penultimate paragraph thereof.




          (d) The Capital Securities Guarantee shall be deemed to be specifically described in this
Declaration for purposes of clause (i) of the first provision contained in Section 310(b) of the
Trust Indenture Act.




          (e) The initial Institutional Trustee shall be as set forth in Section 5.5 hereof.








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SECTION 5.4 Qualifications of Regular Trustees and Delaware Trustee Generally.




      Each Regular Trustee and the Delaware Trustee (unless the Institutional Trustee also acts as
Delaware Trustee) shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more Authorized Officers.



SECTION 5.5 Initial Trustees; Additional Powers of Regular Trustees.





	 	(a)	 	The initial Regular Trustees shall be:
	 
	 	 	 	Charles E. Wainhouse

Michael Verdeschi

Jeffrey R. Walsh
	 
	 	 	 	The initial Delaware Trustee shall be:
	 
	 	 	 	BNY Mellon Trust of Delaware

100 White Clay Center, Suite 102

Newark, DE 19711

Attention: Corporate Trust Administration
	 
	 	 	 	The initial Institutional Trustee shall be:
	 
	 	 	 	The Bank of New York Mellon

101 Barclay Street-8W

New York, New York 10286

Attention: Corporate Trust Administration






          (b) Except as expressly set forth in this Declaration and except if a meeting of the Regular
Trustees is called with respect to any matter over which the Regular Trustees have power to act,
any power of the Regular Trustees may be exercised by, or with the consent of, any one such Regular
Trustee.




          (c) Unless otherwise determined by the Regular Trustees, and except as otherwise required by
the Statutory Trust Act or applicable law, any Regular Trustee is authorized to execute on behalf
of the Trust any documents which the Regular Trustees have the power and authority to cause the
Trust to execute pursuant to Section 3.6, provided, that the registration statement referred to in
Section 3.6, including any amendments thereto, shall be signed by all of the Regular Trustees; and




          (d) a Regular 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 Regular Trustees have power and authority to cause the Trust to execute
pursuant to Section 3.6.



SECTION 5.6 Appointment, Removal and Resignation of Trustees.





          (a) Subject to Section 5.6(b), Trustees may be appointed or removed without cause at any time:



26









 






     (i) until the issuance of any Securities, by written instrument executed by the
Sponsor; and




     (ii) in the case of the Regular Trustees, after the issuance of any Securities, by vote
of the Holders of a Majority in liquidation amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities;




     (iii) in the case of the Institutional Trustee and the Delaware Trustee, unless a
Default shall have occurred and be continuing after the issuance of any Securities, by a
vote of the Holders of a Majority in liquidation amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities; and




     (iv) in the case of the Institutional Trustee and the Delaware Trustee, if a Default
shall have occurred and be continuing after the issuance of the Securities, by a vote of
the Holders of a Majority in liquidation amount of the Capital Securities voting as a class
at a meeting of the Holders of the Capital Securities.




          (b) (i) The Trustee that acts as Institutional Trustee shall not be removed in accordance with
Section 5.6(a) until a successor Trustee possessing the qualifications to act as Institutional
Trustee under Section 5.3 (a “Successor Institutional Trustee”) has been appointed and has accepted
such appointment by written instrument executed by such Successor Institutional Trustee and
delivered to the Regular Trustees and the Sponsor; and




     (ii) the Trustee that acts as Delaware Trustee shall not be removed in accordance with
Section 5.6(a) until a successor Trustee possessing the qualifications to act as Delaware
Trustee under Sections 5.2 and 5.4 (a “Successor Delaware Trustee”) has been appointed and
has accepted such appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees and the Sponsor.




          (c) A Trustee appointed to office shall hold office until his successor shall have been
appointed or until his death, removal or resignation. Any Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing signed by the Trustee and
delivered to the Sponsor and the Trust, which resignation shall take effect upon such delivery or
upon such later date as is specified therein; provided, however, that:




     (i) No such resignation of the Trustee that acts as the Institutional Trustee shall be
effective:




          (A) until a Successor Institutional Trustee has been appointed and has accepted
such appointment by instrument executed by such Successor Institutional Trustee and
delivered to the Trust, the Sponsor and the resigning Institutional Trustee; or




          (B) until the assets of the Trust have been completely liquidated and the
proceeds thereof distributed to the holders of the Securities; and




     (ii) no such resignation of the Trustee that acts as the Delaware Trustee shall be
effective until a Successor Delaware Trustee has been appointed and has accepted



27









 






such appointment by instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the resigning Delaware Trustee.




          (d) The Holders of the Common Securities shall use their best efforts to promptly appoint a
Successor Delaware Trustee or Successor Institutional Trustee as the case may be if the
Institutional Trustee or the Delaware Trustee delivers an instrument of resignation in accordance
with this Section 5.6.




          (e) If no Successor Institutional Trustee or Successor Delaware Trustee shall have been
appointed and accepted appointment as provided in this Section 5.6 within 60 days after delivery to
the Sponsor and the Trust of an instrument of resignation, the resigning Institutional Trustee or
Delaware Trustee, as applicable, may petition any court of competent jurisdiction at the expense of
the Sponsor for appointment of a Successor Institutional Trustee or Successor Delaware Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Institutional Trustee or Successor Delaware Trustee, as the case may
be.




          (f) No Institutional Trustee or Delaware Trustee shall be liable for the acts or omissions to
act of any Successor Institutional Trustee or Successor Delaware Trustee, as the case may be.



SECTION 5.7 Vacancies among Trustees.





          If a Trustee ceases to hold office for any reason and the number of Trustees is not reduced
pursuant to Section 5.1, or if the number of Trustees is increased pursuant to Section 5.1, a
vacancy shall occur. A resolution certifying the existence of such vacancy by the Regular Trustees
or, if there are more than two, a majority of the Regular Trustees shall be conclusive evidence of
the existence of such vacancy. The vacancy shall be filled with a Trustee appointed in accordance
with Section 5.6.



SECTION 5.8 Effect of Vacancies.





          The death, resignation, retirement, removal, bankruptcy, dissolution, liquidation,
incompetence or incapacity to perform the duties of a Trustee shall not operate to annul the Trust.
Whenever a vacancy in the number of Regular Trustees shall occur, until such vacancy is filled by
the appointment of a Regular Trustee in accordance with Section 5.6, the Regular Trustees in
office, regardless of their number, shall have all the powers granted to the Regular Trustees and
shall discharge all the duties imposed upon the Regular Trustees by this Declaration.



SECTION 5.9 Meetings.





          If there is more than one Regular Trustee, meetings of the Regular Trustees shall be held from
time to time upon the call of any Regular Trustee. Regular meetings of the Regular Trustees may be
held at a time and place fixed by resolution of the Regular Trustees. Notice of any in-person
meetings of the Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48 hours before such
meeting. Notice of any telephonic meetings of the Regular Trustees or any



28









 






committee thereof shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before a meeting. Notices
shall contain a brief statement of the time, place and anticipated purposes of the meeting. The
presence (whether in person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a meeting for the express
purpose of objecting to the transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Declaration, any action of the
Regular Trustees may be taken at a meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with respect to such matter, provided that
a Quorum is present, or without a meeting by the unanimous written consent of the Regular Trustees.
In the event there is only one Regular Trustee, any and all action of such Regular Trustee shall
be evidenced by a written consent of such Regular Trustee.



SECTION 5.10 Delegation of Power.





          (a) Any Regular 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 purpose of executing any
documents contemplated in Section 3.6, including any registration statement or amendment thereto
filed with the Commission, or making any other governmental filing; and




          (b) the Regular Trustees shall have power to delegate from time to time to such of their
number or to officers of the Trust the doing of such things and the execution of such instruments
either in the name of the Trust or the names of the Regular Trustees or otherwise as the Regular
Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein; and




          (c) any delegation of power by a Regular Trustee under Section 3.6(g) (and Section 3.6(o)
insofar as it applies to Section 3.6(g)) or by the Institutional Trustee under Section 3.8(e) shall
be to a U.S. Person (as defined under Section 7701(a)(30) of the Code).



SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business.





          Any corporation into which the Institutional Trustee or the Delaware Trustee, as the case may
be, may be merged or converted or with which either may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Institutional Trustee or the
Delaware Trustee, as the case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Institutional Trustee or the Delaware
Trustee, as the case may be, hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.












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ARTICLE VI

DISTRIBUTIONS; EXCHANGES



SECTION 6.1 Distributions.





          Holders shall receive Distributions (as defined herein) in accordance with the applicable
terms of the relevant Holder’s Securities. Distributions shall be made on the Capital Securities
and the Common Securities in accordance with the preferences set forth in their respective terms.
If and to the extent that the Debenture Issuer makes a payment of interest (including Compounded
Interest (as defined in the Indenture) and Additional Interest (as defined in the Indenture)),
premium and/or principal on the Debentures held by the Institutional Trustee (the amount of any
such payment being a “Payment Amount”), the Institutional Trustee shall and is directed to make a
distribution (a “Distribution”) of the Payment Amount to Holders.



SECTION 6.2 Exchanges.





          (a) If at any time the Sponsor or any of its Affiliates (in any such case, a “Sponsor
Affiliated Holder”) is the Holder of any Capital Securities or is a Capital Security Beneficial
Owner, such Sponsor Affiliated Holder shall have the right to deliver to the Institutional Trustee
all or such portion of its Capital Securities as it elects and, subject to the terms of the
Indenture, receive, in exchange therefor, Debentures having an aggregate principal amount equal to
the aggregate Liquidation Amount of the Capital Securities exchanged therefor (such an exchange
being referred to herein as an “Exchange”). Such election (i) shall be exercisable, and shall be
effective on any Business Day, provided that such Business Day is not a record date or any date
falling between a record date and a date on which the related Distribution is payable, by such
Sponsor Affiliated Holder delivering to the Institutional Trustee a written notice of such election
specifying the aggregate Liquidation Amount of Capital Securities with respect to which such
election is being made and the date on which such Exchange shall occur, which date shall be not
less than three (3) Business Days after the date of receipt by the Institutional Trustee of such
election notice and (ii) shall be conditioned upon such Sponsor Affiliated Holder having delivered
or caused to be delivered to the Institutional Trustee or its designee the Capital Securities which
are the subject of such election by 10:00 a.m. New York City time, on the date on which such
Exchange is to occur. After the Exchange, such Capital Securities shall be cancelled and shall no
longer be deemed to be outstanding and all rights of the Sponsor Affiliated Holder with respect to
such Capital Securities shall cease. So long as the Capital Securities are in book-entry-only
form, the delivery and the cancellation of the Capital Securities pursuant to this Section 6.2
shall be made in accordance with the customary procedures for the Clearing Agency for the Capital
Securities.




          (b) In the case of an Exchange described in Section 6.2(a), the Trust shall, at the written
request of the Sponsor, on the date of such Exchange, exchange Debentures having a principal amount
equal to a proportional amount of the aggregate Liquidation Amount of the outstanding Common
Securities, such proportional amount determined by multiplying the aggregate Liquidation Amount of
the outstanding Common Securities by the ratio of the aggregate Liquidation Amount of the Capital
Securities exchanged pursuant to Section 6.2(a) to the aggregate Liquidation Amount of the Capital
Securities outstanding immediately prior to such Exchange, for such proportional amount of Common
Securities held by the Sponsor (which contemporaneously shall be cancelled and no longer be deemed
to be outstanding); provided, that the Sponsor delivers or causes to be delivered to the
Institutional Trustee or its designee the required amount of Common Securities to be exchanged by
10:00 a.m., New York City time, on the date on which such Exchange is to occur.



30









 





ARTICLE VII

ISSUANCE OF SECURITIES




SECTION 7.1 General Provisions Regarding Securities.





          (a) The Regular Trustees shall on behalf of the Trust issue one class of capital securities
representing undivided beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I (the “Capital Securities”) and one class of common securities representing
undivided beneficial interests in the assets of the Trust having such terms as are set forth in
Annex I (the “Common Securities”). The Trust shall issue no securities or other interests in the
assets of the Trust other than the Capital Securities and the Common Securities.




          (b) The Certificates shall be signed on behalf of the Trust by a Regular Trustee. Such
signature shall be the manual or facsimile signature of any present or any future Regular Trustee.
In case any Regular Trustee of the Trust who shall have signed any of the Securities shall cease to
be such Regular Trustee before the Certificates so signed shall be delivered by the Trust, such
Certificates nevertheless may be delivered as though the person who signed such Certificates had
not ceased to be such Regular Trustee; and any Certificate may be signed on behalf of the Trust by
such persons who, at the actual date of execution of such Security, shall be the Regular Trustees
of the Trust, although at the date of the execution and delivery of the Declaration any such person
was not such a Regular Trustee. Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Regular Trustees, as evidenced by
their execution thereof, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular Trustees may deem appropriate, or as
may be required to comply with any law or with any rule or regulation of any stock exchange on
which Securities may be listed, or to conform to usage.




          (c) The consideration received by the Trust for the issuance of the Securities shall
constitute a contribution to the capital of the Trust and shall not constitute a loan to the Trust.




          (d) Upon issuance of the Securities as provided in this Declaration, the Securities so issued
shall be deemed to be validly issued, fully paid and non-assessable.




          (e) Every Person, by virtue of having become a Holder or a Capital Security Beneficial Owner
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 VIII

DISSOLUTION OF TRUST




SECTION 8.1 Dissolution of Trust.





          (a) The Trust shall dissolve:




          (i) upon the bankruptcy of any Holder of the Common Securities or the Sponsor;



31









 






     (ii) upon the filing of a certificate of dissolution or its equivalent with respect to
any Holder of the Common Securities or the Sponsor; the filing of a certificate of
cancellation with respect to the Trust or the revocation of the Holder of the Common
Securities or the Sponsor’s charter and the expiration of 90 days after the date of
revocation without a reinstatement thereof;




     (iii) upon the entry of a decree of judicial dissolution of any Holder of the Common
Securities, the Sponsor or the Trust;




     (iv) subject to obtaining any required regulatory approval, when all of the Securities
have been called for redemption and the amounts necessary for redemption thereof have been
paid to the Holders in accordance with the terms of the Securities;




     (v) subject to obtaining any required regulatory approval, upon the Exchange of all of
the then-outstanding Capital Securities pursuant to Section 6.2;




     (vi) subject to obtaining any required regulatory approval, when the Trust shall have
been dissolved in accordance with the terms of the Securities upon election by the Sponsor
of its right to terminate the Trust and distribute all of the Debentures to the Holders of
Securities in exchange for all of the Securities and all of the Debentures shall have been
distributed to the Holders of Securities in accordance with such election;




     (vii) before the issuance of any Securities, with the consent of all of the Regular
Trustees and the Sponsor; or




     (viii) upon the expiration of the term of the Trust set forth in Section 3.14.




          (b) As soon as is practicable after the occurrence of an event referred to in Section 8.1(a),
and after satisfaction of the claims and obligations of the Trust as required by applicable law,
including Section 3808 of the Statutory Trust Act, and subject to the terms set forth in Annex I,
the Delaware Trustee, when notified in writing of the completion of the winding up of the Trust in
accordance with the Statutory Trust Act, shall terminate the Trust by filing, at the expense of the
Sponsor, a certificate of cancellation with the Secretary of State of the State of Delaware.




          (c) The provisions of Section 3.9, Section 3.10 and Article X shall survive the termination of
the Trust.



ARTICLE IX

TRANSFER OF INTERESTS




SECTION 9.1 Transfer of Securities.





          (a) Securities may only be transferred, in whole or in part, in accordance with the terms and
conditions set forth in this Declaration and in the terms of the Securities. Any transfer or
purported transfer of any Security not made in accordance with this Declaration shall be null and
void.



32









 






          (b) Subject to this Article IX, all Certificates or other instruments representing the Capital
Securities will bear a legend substantially to the following effect (the “Private Placement
Legend”):




THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO
IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT OR SUCH LAWS. EACH PURCHASER OF THE SECURITIES REPRESENTED BY THIS
INSTRUMENT IS NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. ANY TRANSFEREE OF THE SECURITIES REPRESENTED BY
THIS INSTRUMENT BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2) AGREES THAT IT WILL NOT OFFER, SELL
OR OTHERWISE TRANSFER THE SECURITIES REPRESENTED BY THIS INSTRUMENT EXCEPT (A) PURSUANT TO A
REGISTRATION STATEMENT WHICH IS THEN EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE
SECURITIES REPRESENTED BY THIS INSTRUMENT ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (C) TO THE ISSUER OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THE
SECURITIES REPRESENTED BY THIS INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.




          (c) Subject to this Article IX, the Sponsor and any Related Party may only transfer Common
Securities to the Sponsor or a Related Party of the Sponsor; provided, that any such transfer is
subject to the condition precedent that the transferor obtain the written opinion of nationally
recognized independent counsel experienced in such matters that such transfer would not cause more
than an insubstantial risk that:




          (i) the Trust would not be classified for United States federal income tax purposes as
a grantor trust; and




          (ii) the Trust would be an Investment Company or the transferee would become an
Investment Company.








33









 






SECTION 9.2 Transfer of Certificates.




          (a) The Trust shall cause to be kept at the Corporate Trust Office of the Institutional
Trustee a register in which, subject to such reasonable regulations as it may prescribe, the Trust
shall provide for the registration of Capital Securities and of transfers of Capital Securities.
The Institutional Trustee is hereby appointed “Security Registrar” for the purpose of registering
Capital Securities and transfers of Capital Securities as herein provided. The Security Registrar
shall provide for the registration of Certificates and of transfers of Certificates, which will be
effected without charge but only upon payment (with such indemnity as the Security Registrar may
require) in respect of any tax or other government charges that may be imposed in relation to it.
Upon surrender for registration of transfer of any Certificate, the Security Registrar shall cause
one or more new Certificates to be issued in the name of the designated transferee or transferees.
Every Certificate surrendered for registration of transfer shall be accompanied by a written
instrument of transfer in form satisfactory to the Security Registrar duly executed by the Holder
or such Holder’s attorney duly authorized in writing. Each Certificate surrendered for registration
of transfer shall be canceled by the Security Registrar. A transferee of a Certificate shall be
entitled to the rights and subject to the obligations of a Holder hereunder upon the receipt by
such transferee of a Certificate. By acceptance of a Certificate, each transferee shall be deemed
to have agreed to be bound by this Declaration.




          (b) In the event that any Capital Securities (i) become registered under the Securities Act or
(ii) are eligible to be transferred without restriction in accordance with Rule 144 or another
exemption from registration under the Securities Act (other than Rule 144A), the Regular Trustees
shall cause to be issued, in accordance with Section 9.2(a) above, new Certificates or other
instruments representing such Capital Securities, which shall not contain the Private Placement
Legend. Securities shall be freely transferable, subject to compliance with this Article IX and the
Securities Act. Subject to the last sentence of this Section 9.2(b), if a Certificate representing
a Capital Security bears a Private Placement Legend, such Capital Security (x) may be transferred
to a Person or Persons who take delivery thereof in the form of a Certificate bearing a Private
Placement Legend only if the Security Registrar receives (A) an appropriately completed certificate
of transfer in the form attached hereto as Exhibit D and (B) if applicable, a certificate
substantially in the form attached hereto as Exhibit E (each such certificate, a “Transfer
Certification”); and (y) may be transferred to a Person or Persons who take delivery thereof in the
form of a Certificate not bearing a Private Placement Legend or may be exchanged for a Certificate
not bearing a Private Placement Legend only if the Security Registrar has previously received an
opinion of counsel in form reasonably acceptable to the Sponsor to the effect that the Capital
Securities are eligible to be transferred without restriction (a “Transfer Opinion”). The
Institutional Trustee and the Security Registrar shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer or exchange imposed under
this Declaration or under applicable law with respect to any transfer or exchange of any interest
in any Security (including any transfers between or among Clearing Agency Participants, members or
beneficial owners in any Global Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Declaration, and to examine the same to determine substantial
compliance as to form with the express requirements hereof. At such time as the Company shall
determine, in accordance with applicable law, that the Capital Securities are no longer required to
bear the Private Placement Legend, then: (x) the Sponsor shall deliver to the Institutional Trustee
a Transfer Opinion; (y) the Security Registrar shall cause to be issued, in accordance with Section
9.2(a) above, new




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Certificates or other instruments representing such Capital Securities, which shall not
contain the Private Placement Legend; and (z) no Transfer Certification shall be required as a
condition to any subsequent transfer of the Capital Securities.


SECTION 9.3 Deemed Security Holders.





          The Trustees and the Security Registrar may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole holder of such Certificate
and of the Securities represented by such Certificate for purposes of receiving Distributions and
for all other purposes whatsoever and, accordingly, shall not be bound to recognize any equitable
or other claim to or interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have actual or other notice
thereof.


SECTION 9.4 Book Entry Interests.





          The Capital Securities, on original issuance, will be issued in the form of definitive, fully
registered Capital Security Certificates (the “Definitive Capital Security Certificates”). The
Capital Securities may, upon the instruction of the Sponsor, be issued in the form of one or more,
fully registered, global Capital Security Certificates (each a “Global Certificate”), to be
delivered to DTC, the initial Clearing Agency, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the Trust in the name of
Cede & Co., the nominee of DTC, and no Capital Security Beneficial Owner will receive a definitive
Capital Security Certificate representing such Capital Security Beneficial Owner’s interests in
such Global Certificates, except as provided in Section 9.7. If the Capital Securities are held as
Global Certificates, then unless and until Definitive Capital Security Certificates shall have been
issued to the Capital Security Beneficial Owners pursuant to Section 9.7:




          (a) the provisions of this Section 9.4 shall be in full force and effect;




          (b) the Trust and the Trustees shall be entitled to deal with the Clearing Agency for all
purposes of this Declaration (including the payment of Distributions on the Global Certificates and
receiving approvals, votes or consents hereunder) as the Holder of the Capital Securities and the
sole holder of the Global Certificates and shall have no obligation to the Capital Security
Beneficial Owners;




          (c) to the extent that the provisions of this Section 9.4 conflict with any other provisions
of this Declaration, the provisions of this Section 9.4 shall control; and




          (d) the rights of the Capital Security Beneficial Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and agreements between such
Capital Security Beneficial Owners and the Clearing Agency and/or the Clearing Agency Participants
and receive and transmit payments of Distributions on the Global Certificates to such Clearing
Agency Participants. DTC will make book entry transfers among the Clearing Agency Participants.



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SECTION 9.5 Notices to Clearing Agency.





          While the Capital Securities are in the form of Definitive Capital Security Certificates,
all notices and communications to the Capital Security Holders shall be made at the respective
addresses of the Holders set forth on the books and records of the Trust. If the Capital Securities
are held as Global Certificates, whenever a notice or other communication to the Capital Security
Holders is required under this Declaration, the Regular Trustees shall give all such notices and
communications specified herein to be given to the Capital Security Holders to the Clearing Agency,
and shall have no notice obligations to the Capital Security Beneficial Owners.


SECTION 9.6 Appointment of Successor Clearing Agency.





          If any Clearing Agency elects to discontinue its services as a securities depositary with
respect to the Capital Securities, the Regular Trustees may, in their sole discretion, appoint a
successor Clearing Agency with respect to such Capital Securities.


SECTION 9.7 Definitive Capital Security Certificates.





          If:




          (a) a Clearing Agency elects to discontinue its services as a securities depositary with
respect to the Capital Securities and a successor Clearing Agency is not appointed within 90 days
after such discontinuance pursuant to Section 9.6; or




          (b) the Regular Trustees elect after consultation with the Sponsor and subject to the
procedures of the Clearing Agency to terminate the book entry system through the Clearing Agency
with respect to the Capital Securities,




then:




          (c) Definitive Capital Security Certificates shall be prepared by the Regular Trustees on
behalf of the Trust with respect to such Capital Securities; and




          (d) upon surrender of the Global Certificates by the Clearing Agency, accompanied by
registration instructions, the Regular Trustees and the Security Registrar shall cause Definitive
Certificates to be delivered to Capital Security Beneficial Owners in accordance with the
instructions of the Clearing Agency. Neither the Trustees nor the Trust nor the Security Registrar
shall be liable for any delay in delivery of such instructions and each of them may conclusively
rely on and shall be protected in relying on, said instructions of the Clearing Agency. The
Definitive Capital Security Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Regular Trustees, as evidenced by
their execution thereof, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular Trustees may deem appropriate, or as
may be required to comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which Capital Securities may be listed, or to
conform to usage.



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SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.





If:




          (a) any mutilated Certificates should be surrendered to the Security Registrar, or if the
Security Registrar shall receive evidence to its satisfaction of the destruction, loss or theft of
any Certificate; and




          (b) there shall be delivered to the Security Registrar such security or indemnity as may be
required by them to keep each of them harmless.




then, in the absence of notice that such Certificate shall have been acquired by a bona fide
purchaser, any Regular Trustee on behalf of the Trust shall execute and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this Section 9.8, the
Regular Trustees and the Security Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence of an ownership
interest in the relevant Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.



ARTICLE X

LIMITATION OF LIABILITY OF HOLDERS OF

SECURITIES, TRUSTEES OR OTHERS



SECTION 10.1 Liability.





          (a) Except as expressly set forth in this Declaration, the Capital Securities Guarantee and
the terms of the Securities, the Sponsor shall not be:




     (i) personally liable for the return of any portion of the capital contributions (or
any return thereon) of the Holders of the Securities which shall be made solely from assets
of the Trust; and




     (ii) required to pay to the Trust or to any Holder of Securities any deficit upon
dissolution of the Trust or otherwise.




          (b) The Holder of the Common Securities shall be liable for all of the debts and obligations
of the Trust (other than with respect to the Securities) to the extent not satisfied out of the
Trust’s assets.




          (c) Pursuant to § 3803(a) of the Statutory Trust Act, the Holders of the Capital Securities
shall be entitled to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State of Delaware.


SECTION 10.2 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



37









 






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.




          (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, if selected by such Person, has been selected with
reasonable care by such Person, 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 10.3 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 or eliminate the duties and liabilities of an
Indemnified Person otherwise existing at law or in equity (other than the duties imposed on the
Institutional Trustee under the Trust Indenture Act), 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 any 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.




          (c) Whenever in this Declaration an Indemnified Person is permitted or required to make a
decision:



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     (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 under 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 10.4 Indemnification.





          (a) (i) The Debenture Issuer shall indemnify, to the full extent permitted by law, any Company
Indemnified Person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by reason of the fact that he
is or was a Company Indemnified Person against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Trust, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.




     (ii) The Debenture Issuer shall indemnify, to the full extent permitted by law, any
Company Indemnified Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Company Indemnified Person
against expenses (including attorneys’ fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in respect of any claim, issue
or matter as to which such Company Indemnified Person shall have been adjudged to be liable
to the Trust unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which such Court of
Chancery or such other court shall deem proper.




     (iii) To the extent that a Company Indemnified Person shall be successful on the merits
or otherwise (including dismissal of an action without prejudice or the settlement of an
action without admission of liability) in defense of any action, suit or proceeding referred
to in paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any claim, issue or
matter therein, he shall be indemnified, to the full extent permitted by



39









 






law, against expenses (including attorneys’ fees) actually and reasonably incurred by
him in connection therewith.




     (iv) Any indemnification under paragraphs (i) and (ii) of this Section 10.4(a) (unless
ordered by a court) shall be made by the Debenture Issuer only as authorized in the specific
case upon a determination that indemnification of the Company Indemnified Person is proper
in the circumstances because he has met the applicable standard of conduct set forth in
paragraphs (i) and (ii). Such determination shall be made (1) by the Regular Trustees by a
majority vote of a quorum consisting of such Regular Trustees who were not parties to such
action, suit or proceeding, (2) if such a quorum is not obtainable, or, even if obtainable,
if a quorum of disinterested Regular Trustees so directs, by independent legal counsel in a
written opinion, or (3) by the Common Security Holder of the Trust.




     (v) Expenses (including attorneys’ fees) incurred by a Company Indemnified Person in
defending a civil, criminal, administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall be paid by the
Debenture Issuer in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Company Indemnified Person to repay such
amount if it shall ultimately be determined that he is not entitled to be indemnified by the
Debenture Issuer as authorized in this Section 10.4(a). Notwithstanding the foregoing, no
advance shall be made by the Debenture Issuer if a determination is reasonably and promptly
made (i) by the Regular Trustees by a majority vote of a quorum of disinterested Regular
Trustees, (ii) if such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal counsel in a written opinion
or (iii) the Common Security Holder of the Trust, that, based upon the facts known to the
Regular Trustees, counsel or the Common Security Holder at the time such determination is
made, such Company Indemnified Person acted in bad faith or in a manner that such person did
not believe to be in or not opposed to the best interests of the Trust, or, with respect to
any criminal proceeding, that such Company Indemnified Person believed or had reasonable
cause to believe his conduct was unlawful. In no event shall any advance be made in
instances where the Regular Trustees, independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached his duty to the Trust or its
Common or Capital Security Holders.




     (vi) The indemnification and advancement of expenses provided by, or granted pursuant
to, the other paragraphs of this Section 10.4(a) shall not be deemed exclusive of any other
rights to which those seeking indemnification and advancement of expenses may be entitled
under any agreement, vote of stockholders or disinterested directors of the Debenture Issuer
or Capital Security Holders of the Trust or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office. All rights to
indemnification under this Section 10.4(a) shall be deemed to be provided by a contract
between the Debenture Issuer and each Company Indemnified Person who serves in such capacity
at any time while this Section 10.4(a) is in effect. Any repeal or modification of this
Section 10.4(a) shall not affect any rights or obligations then existing.



40









 






     (vii) The Debenture Issuer may purchase and maintain insurance on behalf of any person
who is or was a Company Indemnified Person against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such, whether or not
the Debenture Issuer would have the power to indemnify him against such liability under the
provisions of this Section 10.4(a).




     (viii) For purposes of this Section 10.4(a), references to “the Trust” shall include,
in addition to the resulting or surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or merger, so that any person who
is or was a director, trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee, officer, employee
or agent of another entity, shall stand in the same position under the provisions of this
Section 10.4(a) with respect to the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence had continued.




     (ix) The indemnification and advancement of expenses provided by, or granted pursuant
to, this Section 10.4(a) shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a Company Indemnified Person and shall inure to
the benefit of the heirs, executors and administrators of such a person.




          (b) The Debenture Issuer agrees to indemnify the (i) Institutional Trustee, (ii) the Delaware
Trustee, (iii) any Affiliate of the Institutional Trustee and the Delaware Trustee, and (iv) any
officers, directors, shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Institutional Trustee and the Delaware Trustee (each of the Persons in
(i) through (iv) being referred to as a “Fiduciary Indemnified Person”) for, and to hold each
Fiduciary Indemnified Person harmless against, any and all loss, liability, claim damage or expense
incurred without negligence, or bad faith or willful misconduct on its part, arising out of or in
connection with the acceptance or administration or the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending itself against or
investigating any claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligation to indemnify as set forth in this Section 10.4(b) shall
survive the resignation or removal of the Institutional Trustee or the Delaware Trustee, as the
case may be, and the termination of this Declaration. The Debenture Issuer agrees to pay the
Institutional Trustee and the Delaware Trustee from time to time such compensation for all services
rendered by the Institutional Trustee and the Delaware Trustee hereunder as may be mutually agreed
upon in writing by the Debenture Issuer and the Institutional Trustee or the Delaware Trustee, as
the case may be, and, except as otherwise expressly provided therein or herein, to reimburse the
Institutional Trustee and the Delaware Trustee upon its or their request for all reasonable
expenses (including reasonable counsel fees and expenses), disbursements and advances incurred or
made by the Institutional Trustee or the Delaware Trustee, as the case may be, in accordance with
the provisions of this Declaration, except any such expense, disbursement or advance as may be
attributable to its or their negligence, bad faith or willful misconduct. The provisions of this
sentence shall survive the resignation or removal of the Delaware Trustee or the Institutional
Trustee or the termination of this Declaration.



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SECTION 10.5 Outside Businesses.





          Any Covered Person, the Sponsor, the Delaware Trustee and the Institutional 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, the Delaware Trustee, or the Institutional 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, the Delaware Trustee and the Institutional 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 other opportunity. Any Covered Person, the Delaware Trustee and the
Institutional 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 act
on any committee or body of holders of, securities or other obligations of the Sponsor or its
Affiliates.



ARTICLE XI

ACCOUNTING



SECTION 11.1 Fiscal Year.





          The fiscal year (“Fiscal Year”) of the Trust shall be the calendar year, or such other year as
is required by the Code.


SECTION 11.2 Certain Accounting Matters.





          (a) At all times during the existence of the Trust, the Regular Trustees shall keep, or cause
to be kept, full books of account, records and supporting documents, which shall reflect in
reasonable detail, each transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for United States
federal income tax purposes. The books of account and the records of the Trust shall be examined
by and reported upon as of the end of each Fiscal Year of the Trust by a firm of independent
certified public accountants selected by the Regular Trustees.




          (b) The Regular Trustees shall cause to be prepared and delivered to each of the Holders of
Securities, to the extent, if any, required by the Trust Indenture Act, within 90 days after the
end of each Fiscal Year of the Trust, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements of income or loss;




          (c) The Regular Trustees shall cause to be duly prepared and delivered to each of the Holders
of Securities, any annual United States federal income tax information statement required by the
Code, containing such information with regard to the Securities held by each Holder as is required
by the Code and the Treasury Regulations. Notwithstanding any right



42









 






under the Code to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each Fiscal Year of the
Trust.




          (d) The Regular Trustees shall cause to be duly prepared and filed with the appropriate taxing
authority, an annual United States federal income tax return, on a Form 1041 or such other form
required by United States federal income tax law, and any other annual income tax returns required
to be filed by the Regular Trustees on behalf of the Trust with any state or local taxing
authority.


SECTION 11.3 Banking.





          The Trust shall maintain one or more bank accounts in the name and for the sole benefit of the
Trust; provided, however, that all payments of funds in respect of the Debentures held by the
Institutional Trustee shall be made directly to the Institutional Trustee Account and no other
funds of the Trust shall be deposited in the Institutional Trustee Account. The sole signatories
for such accounts shall be designated by the Regular Trustees; provided, however, that the
Institutional Trustee shall designate the signatories for the Institutional Trustee Account.


SECTION 11.4 Withholding.





          The Trust and the Regular Trustees shall comply with all withholding requirements under United
States federal, state and local law. The Trust shall request, and the Holders shall provide to the
Trust, such forms or certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably be requested by the
Trust to assist it in determining the extent of, and in fulfilling, its withholding obligations.
The Regular Trustees shall file required forms with applicable jurisdictions and, unless an
exemption from withholding is properly established by a Holder, shall remit amounts withheld with
respect to the Holder to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions or allocations to
any Holder, the amount withheld shall be deemed to be a distribution in the amount of the
withholding to the Holder. In the event of any claimed overwithholding, Holders shall be limited
to an action against the applicable jurisdiction. If the amount required to be withheld was not
withheld from actual Distributions made, the Trust may reduce subsequent Distributions by the
amount of such withholding.



ARTICLE XII

AMENDMENTS AND MEETINGS



SECTION 12.1 Amendments.





          (a) Except as otherwise provided in this Declaration or by any applicable terms of the
Securities, this Declaration may only be amended by a written instrument approved and executed by:




     (i) the Regular Trustees (or, if there are more than two Regular Trustees a majority of
the Regular Trustees);



43









 






     (ii) if the amendment affects the rights, powers, duties, obligations or immunities of
the Institutional Trustee, the Institutional Trustee; and




     (iii) if the amendment affects the rights, powers, duties, obligations or immunities of
the Delaware Trustee, the Delaware Trustee;




          (b) no amendment shall be made, and any such purported amendment shall be void and
ineffective:




     (i) unless, in the case of any proposed amendment, the Institutional Trustee shall have
first received an Officers’ Certificate from each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to, the terms of this Declaration (including the
terms of the Securities);




     (ii) unless, in the case of any proposed amendment which affects the rights, powers,
duties, obligations or immunities of the Institutional Trustee, the Institutional Trustee
shall have first received:




     (A) an Officers’ Certificate from each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to, the terms of this Declaration (including
the terms of the Securities); and




     (B) an opinion of counsel (who may be counsel to the Sponsor or the Trust) that
such amendment is permitted by, and conforms to, the terms of this Declaration
(including the terms of the Securities); and




     (iii) to the extent the result of such amendment would be to:




     (A) cause the Trust to fail to continue to be classified for purposes of United
States federal income taxation as a grantor trust;




     (B) reduce or otherwise adversely affect the powers of the Institutional
Trustee in contravention of the Trust Indenture Act; or




     (C) cause the Trust to be deemed to be an Investment Company required to be
registered under the Investment Company Act;




          (c) at such time after the Trust has issued any Securities that remain outstanding, any
amendment that would adversely affect the rights, privileges or preferences of any Holder of
Securities may be effected only with such additional requirements as may be set forth in the terms
of such Securities;




          (d) Section 9.1(c) and this Section 12.1 shall not be amended without the consent of all of
the Holders of the Securities;




          (e) Article IV shall not be amended without the consent of the Holders of a Majority in
liquidation amount of the Common Securities and;



44









 






          (f) the rights of the Holders of the Common Securities under Article V to increase or decrease
the number of, and appoint and remove Trustees shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities; and




          (g) subject to Section 12.1(c), this Declaration may be amended without the consent of the
Holders of the Securities to:




     (i) cure any ambiguity or manifest error;




     (ii) correct or supplement any provision in this Declaration that may be defective or
inconsistent with any other provision of this Declaration;




     (iii) add to the covenants, restrictions or obligations of the Sponsor;




     (iv) to conform to any change in Rule 3a-5 or written change in interpretation or
application of Rule 3a-5 by any legislative body, court, government agency or regulatory
authority which amendment does not have a material adverse effect on the right, preferences
or privileges of the Holders; and




     (v) to modify, eliminate and add to any provision of the Declaration to such extent as
may be reasonably necessary to effectuate any of the foregoing or to otherwise comply with
applicable law.


SECTION 12.2 Meetings of the Holders of Securities; Action by Written Consent.





          (a) Meetings of the Holders of any class of Securities may be called at any time by the
Regular Trustees (or as provided in the terms of the Securities) to consider and act on any matter
on which Holders of such class of Securities are entitled to act under the terms of this
Declaration, the terms of the Securities or the rules of any stock exchange on which the Capital
Securities are listed or admitted for trading. The Regular Trustees shall call a meeting of the
Holders of such class if directed to do so by the Holders of Securities representing at least 10%
in liquidation amount of such class of Securities. Such direction shall be given by delivering to
the Regular Trustees one or more calls in a writing stating that the signing Holders of Securities
wish to call a meeting and indicating the general or specific purpose for which the meeting is to
be called. Any Holders of Securities calling a meeting shall specify in writing the Security
Certificates held by the Holders of Securities exercising the right to call a meeting and only
those Securities specified shall be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph has been met.




          (b) Except to the extent otherwise provided in the terms of the Securities, the following
provisions shall apply to meetings of Holders of Securities:




     (i) notice of any such meeting shall be given to all the Holders of Securities having
a right to vote thereat at least 7 days and not more than 60 days before the date of such
meeting. Whenever a vote, consent or approval of the Holders of Securities is permitted or
required under this Declaration or the rules of any stock exchange on which the Capital
Securities are listed or admitted for trading, such vote, consent or approval



45









 






may be given at a meeting of the Holders of Securities. Any action that may be taken
at a meeting of the Holders of Securities may be taken without a meeting if a consent in
writing setting forth the action so taken is signed by the Holders of Securities owning not
less than the minimum amount of Securities in liquidation amount that would be necessary to
authorize or take such action at a meeting at which all Holders of Securities having a
right to vote thereon were present and voting. Prompt notice of the taking of action
without a meeting shall be given to the Holders of Securities entitled to vote who have not
consented in writing. The Regular Trustees may specify that any written ballot submitted
to the Security Holder for the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the Regular Trustees;




     (ii) each Holder of a Security may authorize any Person to act for it by proxy on all
matters in which a Holder of Securities is entitled to participate, including waiving
notice of any meeting, or voting or participating at a meeting. No proxy shall be valid
after the expiration of 11 months from the date thereof unless otherwise provided in the
proxy. Every proxy shall be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters relating to the giving,
voting or validity of proxies shall be governed by the General Corporation Law of the State
of Delaware relating to proxies, and judicial interpretations thereunder, as if the Trust
were a Delaware corporation and the Holders of the Securities were stockholders of a
Delaware corporation;




     (iii) each meeting of the Holders of the Securities shall be conducted by the Regular
Trustees or by such other Person that the Regular Trustees may designate; and




     (iv) unless the Statutory Trust Act, this Declaration, the terms of the Securities,
the Trust Indenture Act or the listing rules of any stock exchange on which the Capital
Securities are then listed or trading, otherwise provides, the Regular Trustees, in their
sole discretion, shall establish all other provisions relating to meetings of Holders of
Securities, including notice of the time, place or purpose of any meeting at which any
matter is to be voted on by any Holders of Securities, waiver of any such notice, action by
consent without a meeting, the establishment of a record date, quorum requirements, voting
in person or by proxy or any other matter with respect to the exercise of any such right to
vote.



ARTICLE XIII

REPRESENTATIONS OF INSTITUTIONAL TRUSTEE

AND DELAWARE TRUSTEE



SECTION 13.1 Representations and Warranties of Institutional Trustee.





          The Trustee that acts as initial Institutional Trustee represents and warrants to the Trust
and to the Sponsor at the date of this Declaration, and each Successor Institutional Trustee
represents and warrants to the Trust and the Sponsor at the time of the Successor Institutional
Trustee’s acceptance of its appointment as Institutional Trustee that:



46









 






          (a) the Institutional Trustee is a banking corporation or association with trust powers, duly
organized, validly existing and in good standing under the laws of its jurisdiction of
incorporation or formation, with trust power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, this Declaration;




          (b) the execution, delivery and performance by the Institutional Trustee of the Declaration
has been duly authorized by all necessary corporate action on the part of the Institutional
Trustee. The Declaration has been duly executed and delivered by the Institutional Trustee, and it
constitutes a legal, valid and binding obligation of the Institutional Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors’ rights generally and to general principles
of equity and the discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law);




          (c) the execution, delivery and performance of the Declaration by the Institutional Trustee
does not conflict with or constitute a breach of the Articles of Organization or By-laws of the
Institutional Trustee; and




          (d) no consent, approval or authorization of, or registration with or notice to, any State or
Federal banking authority is required for the execution, delivery or performance by the
Institutional Trustee, of the Declaration.


SECTION 13.2 Representations and Warranties of Delaware Trustee.





          The Trustee that acts as initial Delaware Trustee represents and warrants to the Trust and to
the Sponsor at the date of this Declaration, and each Successor Delaware Trustee represents and
warrants to the Trust and the Sponsor at the time of the Successor Delaware Trustee’s acceptance of
its appointment as Delaware Trustee that:




          (a) The Delaware Trustee is a banking corporation or association with trust powers, duly
organized, validly existing and in good standing under the laws of its jurisdiction of
incorporation or formation, with trust power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, the Declaration.




          (b) The Delaware Trustee has been authorized to perform its obligations under the Certificate
of Trust and the Declaration. The Declaration under Delaware law constitutes a legal, valid and
binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws
affecting creditors’ rights generally and to general principles of equity and the discretion of the
court (regardless of whether the enforcement of such remedies is considered in a proceeding in
equity or at law).




          (c) No consent, approval or authorization of, or registration with or notice to, any State or
Federal banking authority is required for the execution, delivery or performance by the Delaware
Trustee, of the Declaration.




          (d) The Delaware Trustee is an entity which maintains its principal place of business in the
State of Delaware.



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ARTICLE XIV

MISCELLANEOUS



SECTION 14.1 Notices.





          All notices provided for in this Declaration shall be in writing (which shall not include
e-mail or pdf), duly signed by the party giving such notice, and shall be delivered, telecopied or
mailed by registered or certified mail, as follows:




          (a) if given to the Trust, in care of the Regular Trustees at the Trust’s mailing address set
forth below (or such other address as the Trust may give notice of to the Holders of the Securities
and the Institutional Trustee):


Citigroup Capital XIII

c/o Citigroup Inc.

153 East 53rd Street, 5th Floor

New York, New York 10043

Attention: Treasury Department





          (b) if given to the Delaware Trustee, at the mailing address set forth below (or such other
address as Delaware Trustee may give notice of to the Holders of the Securities):


BNY Mellon Trust of Delaware

100 White Clay Center, Suite 102

Newark, DE 19711

Attention: Corporate Trust Administration





          (c) if given to the Institutional Trustee, at the mailing address set forth below (or such
other address as the Institutional Trustee may give notice of to the Holders of the Securities and
the Sponsor):


The Bank of New York Mellon

101 Barclay Street-8W

New York, New York 10286

Attention: Corporate Trust Administration





          (d) if given to the Holder of the Common Securities, at the mailing address of the Sponsor set
forth below (or such other address as the Holder of the Common Securities may give notice of to the
Trust):


Citigroup Inc.

153 East 53rd Street

New York, NY 10043

Attention: Charles E. Wainhouse







48









 









          (e) if given to any other Holder, at the address set forth on the books and records of the
Trust.




          All such notices shall be deemed to have been given when received in person, telecopied with
receipt confirmed, or mailed by first class mail, postage prepaid except that if a notice or other
document is refused delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.


SECTION 14.2 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 the principles of conflict of laws.


SECTION 14.3 Intention of the Parties.





          It is the intention of the parties hereto that the Trust be classified for United States
federal income tax purposes as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.


SECTION 14.4 Headings.





          Headings contained in this Declaration are inserted for convenience of reference only and do
not affect the interpretation of this Declaration or any provision hereof.


SECTION 14.5 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 14.6 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 14.7 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 of 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.



49









 






          IN WITNESS WHEREOF, the undersigned have caused these presents to be executed as of the day
and year first above written.



	 	 	 	 	 
	 	 	 
	 	                                               /s/ Michael Verdeschi
 	 
	 	Name:  	Michael Verdeschi 	 
	 	Title:  	Regular Trustee 	 
	 	 	 
	 	                                               /s/ Charles E. Wainhouse
 	 
	 	Name:  	Charles E. Wainhouse 	 
	 	Title:  	Regular Trustee 	 
	 	 	 
	 	                                               /s/ Jeffrey R. Walsh
 	 
	 	Name:  	Jeffrey R. Walsh 	 
	 	Title:  	Regular Trustee 	 



	 	 	 	 	 
	 	BNY MELLON TRUST OF DELAWARE,

as Delaware Trustee

 	 
	 	By:  	/s/ Kristine K. Gullo
 	 
	 	 	Name:  	Kristine K. Gullo 	 
	 	 	Title:  	Vice President 	 
	 
	 	THE BANK OF NEW YORK MELLON, as 

Institutional Trustee

 	 
	 	By:  	/s/ Timothy W. Casey
 	 
	 	 	Name:  	Timothy W. Casey 	 
	 	 	Title:  	Senior Associate 	 
	 
	 	CITIGROUP INC., as Sponsor

 	 
	 	By : 	 /s/ Martin A. Waters
 	 
	 	 	Name:  	Martin A. Waters 	 
	 	 	Title:  	Assistant Treasurer 	 



[Signature Page to Amended and Restated Declaration of Trust]




 









 





ANNEX I




TERMS OF

7.875% FIXED RATE/FLOATING RATE CAPITAL SECURITIES

7.875% FIXED RATE/FLOATING RATE COMMON SECURITIES



          Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust, dated as of
September 29, 2010 (as amended from time to time, the “Declaration”), the designation, rights,
privileges, restrictions, preferences and other terms and provisions of the Capital Securities and
the Common Securities are set out below (each capitalized term used but not defined herein has the
meaning set forth in the Declaration or, if not defined in such Declaration, as defined in the
Prospectus referred to below):




          1. Designation and Number.




          (a) Capital Securities. 89,840,000 Capital Securities of the Trust with an aggregate
liquidation amount with respect to the assets of the Trust of TWO BILLION TWO HUNDRED FORTY-SIX
MILLION dollars ($2,246,000,000), and a liquidation amount with respect to the assets of the Trust
of $25 per capital security, are hereby designated for the purposes of identification only as
“7.875% Fixed Rate/Floating Rate Trust Preferred Securities” (TruPS®) (the
“Capital Securities”). The Capital Security Certificates evidencing the Capital Securities shall
be substantially in the form of Exhibit A-1 to the Declaration, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage, custom or practice or to
conform to the rules of any stock exchange on which the Capital Securities are listed.




          (b) Common Securities. 1,000 Common Securities of the Trust with an aggregate
liquidation amount with respect to the assets of the Trust of TWENTY-FIVE THOUSAND dollars
($25,000), and a liquidation amount with respect to the assets of the Trust of $25 per common
security, are hereby designated for the purposes of identification only as “7.875% Fixed
Rate/Floating Rate Common Securities” (the “Common Securities”). The Common Security Certificates
evidencing the Common Securities shall be substantially in the form of Exhibit A-2 to the
Declaration, with such changes and additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice.




          2. Distributions.




          (a) Distributions will be cumulative and will be payable on each Security until redemption (i)
from October 5, 2010 to but excluding October 30, 2015, at an annual rate of 7.875% payable
quarterly in arrears on January 30, April 30, July 30 and October 30 of each year, beginning
January 30, 2011, and (ii) from and including October 30, 2015 to but excluding October 30, 2040,
at an annual rate equal to three-month LIBOR plus 6.37% payable quarterly in arrears on January 30,
April 30, July 30 and October 30 of each year, beginning January 30, 2016 (the “Coupon Rates”),
these rates being the rates payable on the Debentures to be held by the Institutional Trustee. The
amount of Distributions payable (i) from October 5, 2010 to but excluding October 30, 2015 shall be
computed on the basis of a 360-day year consisting of twelve 30-day months, and (ii) from and
including October 30, 2015 to but excluding October






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30, 2040 shall be computed on the basis of a 360-day year and the actual number of days
elapsed. Distributions in arrears beyond the first date such Distributions are payable (or would
be payable, if not for any Extension Period (as defined below) or default by the Debenture Issuer
on the Debentures) will bear interest thereon compounded quarterly at the applicable Coupon Rate
(to the extent permitted by applicable law). The term “Distributions” as used herein includes such
cash distributions and any such interest payable unless otherwise stated. A Distribution is
payable only to the extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds available therefor.




          (b) When, as and if available for payment, Distributions will be made by the Institutional
Trustee, except as otherwise described below. The Debenture Issuer has the right under the
Indenture to defer payments of interest on the Debentures by extending the interest payment period
from time to time on the Debentures for a period not exceeding 20 consecutive quarters (each an
“Extension Period”), during which Extension Period no interest shall be due and payable on the
Debentures, provided, that no Extension Period may extend beyond the date of maturity or earlier
redemption of the Debentures. As a consequence of the Debenture Issuer’s extension of the interest
payment period, quarterly Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent permitted by applicable
law) at the applicable Coupon Rate compounded quarterly during any such Extension Period. In the
event that the Debenture Issuer exercises its right to extend the interest payment period, then (a)
the Debenture Issuer and any subsidiary of the Debenture Issuer shall not declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Debenture Issuer’s capital stock or make any
guarantee payment with respect thereto (other than (i) purchases, redemptions or other acquisitions
of shares of capital stock of the Debenture Issuer in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of employees, officers, directors
or consultants, (ii) purchases of shares of common stock of the Debenture Issuer pursuant to a
contractually binding requirement to buy stock existing prior to the commencement of the Extension
Period, including under a contractually binding stock repurchase plan, (iii) as a result of an
exchange or conversion of any class or series of the Debenture Issuer’s capital stock for any other
class or series of the Debenture Issuer’s capital stock, (iv) the purchase of fractional interests
in shares of the Debenture Issuer’s capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged, or (v) the purchase of the
Debenture Issuer’s capital stock in connection with the distribution thereof); and (b) the
Debenture Issuer and any subsidiary of the Debenture Issuer will not make any payment of interest,
principal or premium on, or repay, repurchase or redeem, any debt securities or guarantees issued
by the Debenture Issuer that rank pari passu with or junior to the Debentures (other than pro rata
payments of accrued and unpaid interest on the Debentures and any other debt securities or
guarantees issued by the Debenture Issuer that rank equally with the Debentures, except and to the
extent the terms of any such debt securities would prohibit the Debenture Issuer from making such
pro rata payment). The foregoing, however, will not apply to any stock dividends paid by the
Debenture Issuer where the dividend stock is the same stock as that on which the dividend is being
paid. Prior to the termination of any such Extension Period, the Debenture Issuer may further
extend such Extension Period; provided, that such Extension Period, together with all such previous
Extension Periods, may not exceed 20 consecutive quarters; provided further, that no Extension
Period may extend beyond






I-2









 







the maturity or earlier redemption of the Debentures. Payments of deferred Distributions and
accrued interest thereon will be payable to Holders as they appear on the books and records of the
Trust on the first record date after the end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements. The Regular Trustees will give notice to each
Holder of any Extension Period upon their receipt of notice thereof from the Debenture Issuer.




          (c) Distributions on the Securities will be payable to the Holders thereof as they appear on
the books and records of the Trust at the close of business on the relevant record dates. While
the Capital Securities are in definitive, fully-registered form, subject to the rules of any
securities exchange on which the Capital Securities are listed, the relevant record dates shall be
15 days prior to the relevant payment dates, which payment dates shall correspond to the interest
payment dates on the Debentures. If the Capital Securities shall be in book-entry only form, the
relevant record dates shall be one Business Day prior to the relevant payment dates which payment
dates shall correspond to the interest payment dates on the Debentures. Subject to any applicable
laws and regulations and the provisions of the Declaration, each such payment in respect of the
Capital Securities will be made as described under the heading “Description of the Capital
Securities — Book-Entry Only Issuance” in the Prospectus, dated September 29, 2010 (the
“Prospectus”), of the Trust included in the Registration Statement on Form S-3 of the Sponsor, the
Trust and certain other statutory trusts. The relevant record dates for the Common Securities
shall be the same record date as for the Capital Securities. Distributions payable on any
Securities that are not punctually paid on any Distribution payment date, as a result of the
Debenture Issuer having failed to make a payment under the Debentures, will cease to be payable to
the Person in whose name such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name such Securities are
registered on the special record date or other specified date determined in accordance with the
Indenture. If any date on which Distributions are payable on the Securities on or before October
30, 2015 is not a Business Day, then payment of the Distribution payable on such date shall be made
or be made available for payment on the next succeeding day that is a Business Day, and without any
interest or other payment in respect of any such delay. If any date on which Distributions are
payable on the Securities after October 30, 2015 is not a Business Day, then payment of the
Distribution payable on such date shall be made or be made available for payment on the next
succeeding day that is a Business Day and interest will accrue to but excluding the date interest
is paid. However, if such Business Day is in the next succeeding calendar month, such payment
shall be made on, and interest will accrue to but excluding, the immediately preceding Business
Day.




          (d) In the event that there is any money or other property held by or for the Trust that is
not accounted for hereunder, such property shall be distributed Pro Rata (as defined herein) among
the Holders of the Securities.




          3. Liquidation Distribution Upon Dissolution.




          (a) In the event of any voluntary or involuntary liquidation, dissolution, winding-up or
termination of the Trust, the Holders of the Securities on the date of the dissolution, winding-up
or termination, as the case may be, will be entitled to receive out of the






I-3









 







assets of the Trust available for distribution to Holders of Securities after satisfaction of
claims and obligations of the Trust pursuant to applicable law, distributions in an amount equal to
the aggregate of the stated liquidation amount of $25 per Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the “Liquidation Distribution”),
unless, in connection with such dissolution, winding-up or termination, Debentures in an aggregate
principal amount equal to the aggregate stated liquidation amount of, with an interest rate equal
to the Coupon Rate, and bearing accrued and unpaid interest in an amount equal to the accumulated
and unpaid Distributions on, such Securities outstanding at such time, have been distributed on a
Pro Rata basis to the Holders of the Securities in exchange for such Securities. Prior to any such
Liquidation Distribution, the Debenture Issuer will obtain any required regulatory approval.




          (b) If, upon any such dissolution, the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable directly by the Trust on the Securities shall be paid on a
Pro Rata basis.




          4. Redemption and Distribution.




          (a) Upon the repayment of the Debentures in whole or in part, whether at maturity or earlier
on the dates and to the extent the Debentures are redeemed (either at the option of the Debenture
Issuer or pursuant to a Special Event as described below), the proceeds from such repayment or
payment shall be simultaneously applied to redeem Securities having an aggregate liquidation amount
equal to the aggregate principal amount of the Debentures so repaid or redeemed at a redemption
price of $25 per Security plus an amount equal to accumulated and unpaid Distributions thereon at
the date of the redemption, payable in cash (the “Redemption Price”). Holders shall be given not
less than 30 nor more than 60 days’ notice of such redemption. Prior to any such redemption, the
Debenture Issuer will obtain any required regulatory approval.




          (b) If fewer than all the outstanding Securities are to be so redeemed, the Securities will be
redeemed Pro Rata and the Capital Securities to be redeemed will be as described in Section
4(g)(ii) below.




          (c) Subject to obtaining any required regulatory approval, the Debenture Issuer may redeem the
Debentures, in whole or in part, at any time on or after October 30, 2015 at the Redemption Price.




          (d) Subject to obtaining any required regulatory approval, if, at any time, a Tax Event or an
Investment Company Event (each as defined below, and each a “Special Event”) shall occur and be
continuing, the Debenture Issuer shall have the right, upon not less than 30 nor more than 60 days’
notice, to redeem the Debentures, in whole or in part, for cash within 90 days following the
occurrence of such Special Event, and, following such redemption, Capital Securities and Common
Securities with an aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so redeemed shall be redeemed by the Trust at the Redemption Price on a Pro Rata basis;
provided, however, that if at the time there is available to the Debenture Issuer or the Trust the
opportunity to eliminate, within such 90-day period, the






I-4









 







Special Event by taking some ministerial action, such as filing a form or making an election
or pursuing some other similar reasonable measure that will have no adverse effect on the Trust,
the Debenture Issuer or the holders of the Capital Securities or the Debentures, then the Debenture
Issuer or the Trust will pursue such measure in lieu of redemption.




          “Tax Event” means that the Regular Trustees shall have received an opinion of a nationally
recognized independent tax counsel experienced in such matters (a “Tax Event Opinion”) to the
effect that, as a result of (a) any amendment to, or change (including any announced prospective
change) in, the laws or associated regulations, of the United States or any political subdivision
or taxing authority of the United States on or after the date of the Prospectus or (b) any
amendment to, or change in, an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority (including the enactment of
any legislation and the publication of any judicial decision, regulatory determination or
administrative pronouncement on or after the date of the Prospectus), there is more than an
insubstantial risk that (i) the Trust would be subject to United States federal income tax with
respect to interest accrued or received on the Debentures, (ii) the Trust would be subject to more
than a de minimis amount of other taxes, duties or other governmental charges, or (iii) interest
payable to the Trust on the Debentures would not be deductible, in whole or in part, by the
Debenture Issuer for United States federal income tax purposes.




          “Investment Company Event” means that the Regular Trustees shall have received an opinion of a
nationally recognized independent counsel experienced in such matters (an “Investment Company Event
Opinion”) to the effect that, as a result of the occurrence of a change in law or regulation or a
written change in interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a “Change in 1940 Act Law”), there is a more
than an insubstantial risk that the Trust is or will be considered an Investment Company which is
required to be registered under the Investment Company Act, which Change in 1940 Act Law becomes
effective on or after the date of the Prospectus.




          On and from the date fixed by the Regular Trustees for any distribution of the Debentures and
dissolution of the Trust: (i) the Securities will no longer be deemed to be outstanding, (ii) DTC
or its nominee (or any successor Clearing Agency or its nominee), as the record Holder of the
Capital Securities, will receive a registered global certificate or certificates representing the
Debentures to be delivered upon such distribution and (iii) any certificates representing
Securities, except for certificates representing Capital Securities held by DTC or its nominee (or
any successor Clearing Agency or its nominee), will be deemed to represent beneficial interests in
the Debentures having an aggregate principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the Coupon Rate of, and accrued and unpaid interest
equal to accumulated and unpaid Distributions on such Securities until such certificates are
presented to the Debenture Issuer or its agent for transfer or reissue.




          (e) The Trust may not redeem fewer than all the outstanding Securities unless all accumulated
and unpaid Distributions have been paid on all Securities for all quarterly Distribution periods
terminating on or before the date of redemption.







I-5









 








          (f) If the Debentures are distributed to the Holders of the Securities, pursuant to the terms
of the Indenture, the Debenture Issuer will use its best efforts to cause the Debentures to be
listed on the New York Stock Exchange or on such other exchange as the Capital Securities were
listed immediately prior to the distribution of the Debentures.




          (g) Redemption or Distribution procedures will be as follows:






     (i) Notice of any redemption of, or notice of distribution of Debentures in exchange
for the Securities (a “Redemption/Distribution Notice”) will be given by the Trust by mail
to the Institutional Trustee and the Delaware Trustee and to each Holder of the Securities
to be redeemed or exchanged not fewer than 30 nor more than 60 days before the date fixed
for redemption or exchange thereof which, in the case of a redemption, will be the date
fixed for redemption of the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to this Section
4(g)(i), a Redemption/ Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to the Holders of the
Securities. Each Redemption/Distribution Notice shall be addressed to the Holders of the
Securities at the address of each such Holder appearing in the books and records of the
Trust. No defect in the Redemption/Distribution Notice or in the mailing of either thereof
with respect to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.




     (ii) In the event that fewer than all the outstanding Securities are to be redeemed,
the Securities to be redeemed shall be redeemed Pro Rata from each Holder of Capital
Securities, it being understood that, in respect of Capital Securities registered in the
name of and held of record by DTC or its nominee (or any successor Clearing Agency or its
nominee), the distribution of the proceeds of such redemption will be made to each Clearing
Agency Participant (or Person on whose behalf such nominee holds such securities) in
accordance with the procedures applied by such agency or nominee.




     (iii) If Securities are to be redeemed and the Trust gives a Redemption/Distribution
Notice, which notice may only be issued if the Debentures are redeemed as set out in this
Section 4 (which notice will be irrevocable), then (A) while the Capital Securities are in
book-entry only form, with respect to the Capital Securities, by 12:00 noon, New York City
time, on the redemption date, provided, that the Debenture Issuer has paid to the
Institutional Trustee a sufficient amount of cash in connection with the related redemption
or maturity of the Debentures, the Institutional Trustee will deposit irrevocably with DTC
or its nominee (or successor Clearing Agency or its nominee) funds sufficient to pay the
applicable Redemption Price with respect to the Capital Securities and will give DTC (or any
successor Clearing Agency) irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Capital Securities, and (B) with respect to Capital Securities
issued in definitive form and Common Securities, provided, that the Debenture Issuer has
paid the Institutional Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional Trustee will pay the relevant
Redemption Price to the Holders of such Securities by check mailed to the address of the
relevant Holder appearing on the books and records of the Trust on the redemption date. If
a



I-6









 






Redemption/Distribution Notice shall have been given and funds deposited as required,
if applicable, then immediately prior to the close of business on the date of such deposit,
or on the redemption date, as applicable, distributions will cease to accrue on the
Securities so called for redemption and all rights of the Holders of such Securities so
called for redemption will cease, except the right of the Holders of such Securities to
receive the Redemption Price, but without interest on such Redemption Price. Neither the
Regular Trustees nor the Trust shall be required to register or cause to be registered the
transfer of any Securities that have been so called for redemption. If any date fixed for
redemption of Securities is not a Business Day, then payment of the Redemption Price payable
on such date will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such Business Day
falls in the next calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price in respect of any Securities is improperly
withheld or refused and not paid either by the Institutional Trustee or by the Sponsor as
guarantor pursuant to the relevant Securities Guarantee, Distributions on such Securities
will continue to accrue from the original redemption date to the actual date of payment, in
which case the actual payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price.




     (iv) Redemption/Distribution Notices shall be sent by the Regular Trustees on behalf of
the Trust to (A) in respect of the Capital Securities, DTC or its nominee (or any successor
Clearing Agency or its nominee) if Global Certificates have been issued or, if Definitive
Capital Security Certificates have been issued, to the Holder thereof and (B) in respect of
the Common Securities, to the Holder thereof.




     (v) Subject to the foregoing and applicable law (including, without limitation, United
States federal securities laws), the Debenture Issuer or its affiliates may at any time and
from time to time purchase outstanding Capital Securities by tender, in the open market or
by private agreement.



          5. Voting Rights — Capital Securities.




          (a) Except as provided under Sections 5(b) and 7 and as otherwise required by law and the
Declaration, the Holders of the Capital Securities will have no voting rights.




          (b) Subject to the requirements set forth in this paragraph, the Holders of a Majority in
aggregate liquidation amount of the Capital Securities, voting separately as a class, may direct
the time, method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or direct the exercise of any trust or power conferred upon the
Institutional Trustee under the Declaration, including the right to direct the Institutional
Trustee, as holder of the Debentures, to (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercise any trust or power
conferred on the Debenture Trustee with respect to the Debentures, (ii) waive any past Default (as
defined in the Indenture) that is waivable under Section 5.6 of the Indenture, (iii) exercise any
right to rescind or annul a declaration that the principal of all the Debentures shall be due and
payable or (iv) consent to any amendment, modification or termination of the Indenture or the





I-7











 




Debentures where such consent shall be required; provided, however, that, where a consent
or action under the Indenture would require the consent or act of the Holders of greater than a
majority in principal amount of Debentures affected thereby (a “Super Majority”), the Institutional
Trustee may only give such consent or take such action at the written direction of the Holders of
at least the proportion in liquidation amount of the Capital Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures outstanding; provided,
further, that the Institutional Trustee shall have the right to refrain from following any such
direction that violates the Declaration or conflicts with any applicable rule of law or would
involve it in personal liability against which indemnity would, in the opinion of the Institutional
Trustee, not be adequate, and the Institutional Trustee may take any other action deemed proper by
it that is not inconsistent with such direction. The Institutional Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders of the Capital Securities.
Except with respect to directing the time, method and place of conducting a proceeding for a remedy
available to the Institutional Trustee, the Institutional Trustee, as holder of the Debentures,
shall not take any of the actions described in clauses (i), (ii), (iii) or (iv) above unless the
Institutional Trustee has obtained an opinion of a nationally recognized independent tax counsel
experienced in such matters to the effect that as a result of such action, the Trust will not fail
to be classified as a grantor trust for United States federal income tax purposes. If the
Institutional Trustee fails to enforce its rights under the Debentures, any Holder of Capital
Securities may directly institute a legal proceeding against the Debenture Issuer to enforce the
Institutional Trustee’s rights under the Debentures without first instituting a legal proceeding
against the Institutional Trustee or any other Person or entity. If a Default under the
Declaration has occurred and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay interest or principal on the Debentures on the date such interest or
principal is otherwise payable (or in the case of redemption, on the redemption date), then a
holder of Capital Securities may also directly institute a proceeding for enforcement of payment to
such holder (a “Direct Action”) of the principal of or interest on the Debentures having a
principal amount equal to the aggregate liquidation amount of the Capital Securities of such holder
on or after the respective due date specified in the Debentures without first (i) directing the
Institutional Trustee to enforce the terms of the Debentures or (ii) instituting a legal proceeding
directly against the Debenture Issuer to enforce the Institutional Trustee’s rights under the
Debentures. Except as provided in the preceding sentence, the Holders of Capital Securities will
not be able to exercise directly any other remedy available to the holders of the Debentures. In
connection with such Direct Action, the Debenture Issuer will be subrogated to the rights of such
Holder of Capital Securities under the Declaration to the extent of any payment made by the
Debenture Issuer to such holder of Capital Securities in such Direct Action.




          Any required approval or direction of Holders of Capital Securities may be given at a separate
meeting of Holders of Capital Securities convened for such purpose, at a meeting of all of the
Holders of Securities in the Trust or pursuant to written consent. The Regular Trustees will cause
a notice of any meeting at which Holders of Capital Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to be mailed to each
Holder of record of Capital Securities. Each such notice will include a statement setting forth
(i) the date of such meeting or the date by which such action is to be taken, (ii) a description of
any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or
of such matter upon which written consent is sought and (iii) instructions for the delivery of
proxies or consents.





I-8









 








          No vote or consent of the Holders of the Capital Securities will be required for the Trust to
redeem and cancel Capital Securities or to distribute the Debentures in accordance with this
Declaration and the terms of the Securities.




          Notwithstanding that Holders of Capital Securities are entitled to vote or consent under any
of the circumstances described above, any of the Capital Securities that are owned by the Sponsor
or any Affiliate of the Sponsor shall not be entitled to vote or consent and shall, for purposes of
such vote or consent, be treated as if they were not outstanding.




          6. Voting Rights — Common Securities.




          (a) Except as provided under Sections 6(b), (c) and 7 and as otherwise required by law and the
Declaration, the Holders of the Common Securities will have no voting rights.




          (b) The Holders of the Common Securities are entitled, in accordance with and subject to
Article V of the Declaration, to vote to appoint, remove or replace any Trustee or to increase or
decrease the number of Trustees.




          (c) Subject to Section 2.6 of the Declaration and only after the Default with respect to the
Capital Securities has been cured, waived, or otherwise eliminated and subject to the requirements
of the second to last sentence of this paragraph, the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may direct the time, method, and place of
conducting any proceeding for any remedy available to the Institutional Trustee, or direct the
exercise of any trust or power conferred upon the Institutional Trustee under the Declaration,
including (i) directing the time, method, place of conducting any proceeding for any remedy
available to the Debenture Trustee, or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waiving any past Default (as defined in the Indenture)
that is waivable under Section 5.6 of the Indenture, or (iii) exercising any right to rescind or
annul a declaration that the principal of all the Debentures shall be due and payable, provided
that, where a consent or action under the Indenture would require the consent or act of the Holders
of a Super Majority of the Debentures affected thereby, the Institutional Trustee may only give
such consent or take such action at the written direction of the Holders of at least the proportion
in liquidation amount of the Common Securities which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding; provided, further, that the Institutional
Trustee shall have the right to refrain from following any such direction that violates the
Declaration or conflicts with any applicable rule of law or would involve it in personal liability
against which indemnity would, in the opinion of the Institutional Trustee, not be adequate, and
the Institutional Trustee may take any other action deemed proper by it that is not inconsistent
with such direction. Pursuant to this Section 6(c), the Institutional Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders of the Capital Securities. Other
than with respect to directing the time, method and place of conducting any proceeding for any
remedy available to the Institutional Trustee or the Debenture Trustee as set forth above, the
Institutional Trustee shall not take any action in accordance with the directions of the Holders of
the Common Securities under this paragraph unless the Institutional Trustee has obtained an opinion
of nationally recognized tax counsel experienced in such matters to the effect that for the
purposes of United States federal income tax






I-9









 







the Trust will not be classified as other than a grantor trust on account of such action. If
the Institutional Trustee fails to enforce its rights under the Declaration, any Holder of Common
Securities may institute a legal proceeding directly against any Person to enforce the
Institutional Trustee’s rights under the Declaration, without first instituting a legal proceeding
against the Institutional Trustee or any other Person.




          Any approval or direction of Holders of Common Securities may be given at a separate meeting
of Holders of Common Securities convened for such purpose, at a meeting of all of the Holders of
Securities in the Trust or pursuant to written consent. The Regular Trustees will cause a notice
of any meeting at which Holders of Common Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to each Holder of
record of Common Securities. Each such notice will include a statement setting forth (i) the date
of such meeting or the date by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions for the delivery of proxies
or consents.




          No vote or consent of the Holders of the Common Securities will be required for the Trust to
redeem and cancel Common Securities or to distribute the Debentures in accordance with the
Declaration and the terms of the Securities.




          7. Amendments to Declaration and Indenture.




          (a) In addition to any requirements under Section 12.1 of the Declaration, if any proposed
amendment to the Declaration provides for, or the Regular Trustees otherwise propose to effect, (i)
any action that would adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than as described in Section 8.1 of the Declaration, then the
Holders of outstanding Securities as a class, will be entitled to vote on such amendment or
proposal (but not on any other amendment or proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in liquidation amount of
the Securities, voting together as a single class; provided, however, if any amendment or proposal
referred to in clause (i) above would adversely affect only the Capital Securities or only the
Common Securities, then only the affected class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the approval of a
Majority in liquidation amount of such class of Securities.




          (b) In the event the consent of the Institutional Trustee as the holder of the Debentures is
required under the Indenture with respect to any amendment, modification or termination of the
Indenture or the Debentures, the Institutional Trustee shall request the written direction of the
Holders of the Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by a Majority in
liquidation amount of the Securities voting or consenting together as a single class; provided,
however, that where a consent under the Indenture would require the consent of the holders of
greater than a majority in aggregate principal amount of the Debentures (a “Super Majority”), the
Institutional Trustee may only give such consent at the direction of the Holders of at least the
proportion in liquidation amount of the Securities which the relevant






I-10









 







Super Majority represents of the aggregate principal amount of the Debentures outstanding;
provided, further, that the Institutional Trustee shall not take any action in accordance with the
directions of the Holders of the Securities under this Section 7(b) unless the Institutional
Trustee has obtained an opinion of nationally recognized tax counsel experienced in such matters to
the effect that for the purposes of United States federal income tax the Trust will not be
classified as other than a grantor trust on account of such action.




          8. Pro Rata.




          A reference in these terms of the Securities to any payment, distribution or treatment as
being “Pro Rata” shall mean pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to the aggregate
liquidation amount of all Securities outstanding unless, in relation to a payment, a Default under
the Declaration has occurred and is continuing, in which case any funds available to make such
payment shall be paid first to each Holder of the Capital Securities pro rata according to the
aggregate liquidation amount of Capital Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Capital Securities outstanding, and only after satisfaction of
all amounts owed to the Holders of the Capital Securities, to each Holder of Common Securities pro
rata according to the aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities outstanding.




          9. Ranking.




          The Capital Securities rank pari passu and payment thereon shall be made Pro Rata with the
Common Securities except that, where a Default (as defined in the Indenture) occurs and is
continuing under the Indenture in respect of the Debentures held by the Institutional Trustee, the
rights of Holders of the Common Securities to payment in respect of Distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights to payment of the Holders of
the Capital Securities.




          10. Listing.




          The Regular Trustees shall use their best efforts to cause the Capital Securities to be listed
on the New York Stock Exchange.




          11. Acceptance of Securities Guarantee and Indenture.




          Each Holder of Capital Securities and Common Securities, by the acceptance thereof, agrees to
the provisions of the Capital Securities Guarantee, including the subordination provisions therein
and to the provisions of the Indenture.




          12. No Preemptive Rights.




          The Holders of the Securities shall have no preemptive rights to subscribe for any additional
securities.










I-11









 





          13. Miscellaneous.




          These terms constitute a part of the Declaration.




          The Sponsor will provide a copy of the Declaration or the Capital Securities Guarantee, and
the Indenture to a Holder without charge on written request to the Sponsor at its principal place
of business.









I-12









 








EXHIBIT A-1

FORM OF CAPITAL SECURITY CERTIFICATE




          THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO
IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT OR SUCH LAWS. EACH PURCHASER OF THE SECURITIES REPRESENTED BY THIS
INSTRUMENT IS NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. ANY TRANSFEREE OF THE SECURITIES REPRESENTED BY
THIS INSTRUMENT BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2) AGREES THAT IT WILL NOT OFFER, SELL
OR OTHERWISE TRANSFER THE SECURITIES REPRESENTED BY THIS INSTRUMENT EXCEPT (A) PURSUANT TO A
REGISTRATION STATEMENT WHICH IS THEN EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE
SECURITIES REPRESENTED BY THIS INSTRUMENT ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (C) TO THE ISSUER OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THE
SECURITIES REPRESENTED BY THIS INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.




	 	 	 

	Certificate Number

	 	Number of Capital Securities
	 
	 	 
	 

	 	CUSIP NO. 173080 201






Certificate Evidencing Capital Securities




of



CITIGROUP CAPITAL XIII



7.875% Fixed Rate/Floating Rate Trust Preferred Securities (TruPS®)

(Liquidation Amount $25 per Capital Security)




          CITIGROUP CAPITAL XIII, a statutory trust formed under the laws of the State of Delaware (the
“Trust”), hereby certifies that                      (the “Holder”) is the registered owner of                     
(___) capital securities of the Trust representing undivided beneficial






A1-1









 







interests in the assets of the Trust designated the 7.875% Fixed Rate/Floating Rate Trust
Preferred Securities (TruPS®) (the “Capital Securities”). The Capital
Securities are transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Capital Securities are set forth in, and this certificate and the Capital
Securities represented hereby are issued and shall in all respects be subject to, the provisions of
the Amended and Restated Declaration of Trust of the Trust dated as of September 29, 2010, as the
same may be amended from time to time (the “Declaration”), including the designation of the terms
of the Capital Securities as set forth in Annex I thereto. Capitalized terms used herein but not
defined shall have the meaning given them in the Declaration. The Holder is entitled to the
benefits of the Capital Securities Guarantee to the extent provided therein. The Sponsor will
provide a copy of the Declaration, the Capital Securities Guarantee and the Indenture to a Holder
without charge upon written request to the Sponsor at its principal place of business.




          The Holder of this certificate, by accepting this certificate, is deemed to have (i) agreed to
the terms of the Indenture and the Debentures, including that the Debentures are subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the Indenture) and (ii) agreed
to the terms of the Capital Securities Guarantee, including that the Capital Securities Guarantee
is (A) subordinate and junior in right of payment to all other liabilities of the Debenture Issuer,
(B) pari passu with the most senior preferred or preference stock now or hereafter issued by the
Debenture Issuer and with any guarantee now or hereafter issued by Citigroup with respect to
preferred or preference stock of the Debenture Issuer’s affiliates and (C) senior to the Debenture
Issuer’s common stock.




          Upon receipt of this certificate, the Holder is bound by the Declaration and is entitled to
the benefits thereunder.




          By acceptance, the Holder agrees to treat, for United States federal income tax purposes, the
Debentures as indebtedness and the Capital Securities as evidence of indirect beneficial ownership
in the Debentures.







A1-2









 








          IN WITNESS WHEREOF, the Trust has executed this certificate this ___ day of                     , ___.




	 	 	 	 	 
	 	 	 
	 	 	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	Regular Trustee 	 








A1-3









 








 






ASSIGNMENT



FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital Security Certificate to:



 



 



 





(Insert assignee’s social security or tax identification number)




 



 



 



 





(Insert address and zip code of assignee)




and irrevocably appoints



 



 




                                                                 
                                    agent to transfer this Capital Security Certificate on the books of
the Trust. The agent may substitute another to act for him or her.



Date:                                                             



Signature:                                                   



(Sign exactly as your name appears on the other side of this Capital Security Certificate)









A1-4









 








EXHIBIT A-2




FORM OF COMMON SECURITY CERTIFICATE



TRANSFER OF THIS CERTIFICATE

IS SUBJECT TO THE CONDITIONS

SET FORTH IN THE DECLARATION

REFERRED TO BELOW



			
	Certificate Number
	 	Number of Common Securities






Certificate Evidencing Common Securities



of



CITIGROUP CAPITAL XIII



7.875% Fixed Rate/Floating Rate Common Securities

(Liquidation Amount $25 per Common Security)



          CITIGROUP CAPITAL XIII, a statutory trust formed under the laws of the State of Delaware (the
“Trust”), hereby certifies that Citigroup Inc., a Delaware corporation (the “Holder”), is the
registered owner of                      (                    ) common securities of the Trust representing undivided
beneficial interests in the assets of the Trust designated the 7.875% Fixed Rate/Floating Rate
Common Securities (the “Common Securities”). The Common Securities are transferable on the books
and records of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer and satisfaction of the other conditions
set forth in the Declaration (as defined below), including, without limitation, Section 9.1
thereof. The designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust of the Trust dated as of
September 29, 2010, as the same may be amended from time to time (the “Declaration”), including the
designation of the terms of the Common Securities as set forth in Annex I thereto. Capitalized
terms used herein but not defined shall have the meaning given them in the Declaration. The
Sponsor will provide a copy of the Declaration and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business.




          Upon receipt of this certificate, the Holder is bound by the Declaration and is entitled to
the benefits thereunder.




          The Holder of this certificate, by accepting this certificate, is deemed to have agreed to the
terms of the Indenture and the Debentures, including that the Debentures are subordinate and junior
in right of payment to all Senior Indebtedness (as defined in the Indenture) as and to the extent
provided in the Indenture.





A2-1









 








          By acceptance, the Holder agrees to treat, for United States federal income tax purposes, the
Debentures as indebtedness and the Common Securities as evidence of indirect beneficial ownership
in the Debentures.







A2-2









 








          IN WITNESS WHEREOF, the Trust has executed this certificate this ___day of                     , ___.



	 	 	 	 	 
	 	 	 
	 	  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Regular Trustee 	 



A2-3









 






 






ASSIGNMENT



FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security Certificate to:



 



 



 





(Insert assignee’s social security or tax identification number)



 



 



 



 





(Insert address and zip code of assignee)



and irrevocably appoints 





 





		
	 	 agent to transfer this Common 
	 Security Certificate on the books of the Trust. The agent may substitute another to act for him or her.





Date:                                                             



Signature:                                                   



(Sign exactly as your name appears on the other side of this Common Security Certificate)





A2-4









 








EXHIBIT B




SPECIMEN OF DEBENTURE



B-1









 





EXHIBIT C




UNDERWRITING AGREEMENT








C-1









 








EXHIBIT D




[FORM OF CERTIFICATE TO BE DELIVERED UPON

TRANSFER OF CAPITAL SECURITIES]



Citigroup Inc.

399 Park Avenue

New York, New York 10043

Facsimile: 212-793-5629

Attention: Treasury Department




The Bank of New York Mellon

101 Barclay Street — 8W

New York, New York 10286

Attention: Corporate Trust Administration



Re: 7.875% Fixed Rate/Floating Rate Trust Preferred Securities, liquidation
amount $25 per capital security (the “Securities”)





     Reference is hereby made to that certain Amended and Restated Declaration of Trust, dated as
of September 29, 2010 (the “ARDT”), among Citigroup Inc., the regular trustees named
therein, BNY Mellon Trust of Delaware, as Delaware Trustee, and The Bank of New York Mellon, as
Institutional Trustee (the “Institutional Trustee”). Capitalized terms used but not defined
herein shall have the meanings set forth in the ARDT.



     This certificate relates to $_____ aggregate liquidation amount of Securities held in
definitive form by the undersigned.



     The undersigned, _____ (transferor), hereby requests that the Security Registrar register a
transfer of a Security or Securities to _____ (transferee).



     In connection with such transfer of the Security or Securities, the undersigned confirms that
such Securities are being transferred in accordance with their terms:



CHECK ONE BOX BELOW:




	 	 	 

	o

	 	to Citigroup Inc. or any subsidiary thereof; or
	 
	 	 
	o

	 	to a “qualified institutional buyer” within the meaning of Rule
144A (“Rule 144A”) under the Securities Act of 1933, as amended
(the “Securities Act”) and in compliance with Rule 144A;
	 
	 	 
	o

	 	pursuant to an exemption from registration provided by Rule 144
under the Securities Act or any other available exemption from the
registration requirements of the Securities Act.






D-1









 





Unless one of the boxes is checked, the Security Registrar will refuse to register the transfer of
any of the Securities referenced in this certificate.




	 	 	 

	 

	 	 
	 

	 	Signature






	 	 	 	 	 

	Signature Guarantee:
	 	 

	 	 
	 	 	 


	 	 
	 	 	(Signature must be guaranteed by a participant 

in a recognized signature guarantee medallion program)
	 	 






TO BE COMPLETED BY PURCHASER IF THE SECOND BOX ABOVE IS CHECKED.




     The undersigned represents and warrants that (i) it and any account for which it is acting is
a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933,
as amended (“Rule 144A”), (ii) it exercises sole investment discretion with respect to each
such account, and (iii) it is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned’s foregoing representations in order to claim the
exemption from registration provided by Rule 144A.



	 	 	 	 	 
	 	[Name of Transferee]

 	 
	 	By:  	
 	 
	 	 	Name: 1	 	 
	 	 	Date: 	 
	 





 




			
	1	 	To be signed by an executive officer.




D-2









 










EXHIBIT E




[FORM OF CERTIFICATE TO BE DELIVERED

IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]



Citigroup Inc.

399 Park Avenue

New York, New York 10043

Facsimile: 212-793-5629

Attention: Treasury Department




The Bank of New York Mellon

101 Barclay Street — 8W

New York, New York 10286

Attention: Corporate Trust Administration



Re: 7.875% Fixed Rate/Floating Rate Trust Preferred Securities, liquidation
amount $25 per capital security (the “Securities”)



Ladies and Gentlemen:





     In connection with our proposed sale of $_____ aggregate liquidation amount of the Securities
(the “Subject Securities”), we hereby certify that such transfer is being effected pursuant
to and in accordance with Rule 144A (“Rule 144A”) under the United States Securities Act of
1933, as amended, and, accordingly, we hereby further certify that the Subject Securities are being
transferred to a person that we reasonably believe is purchasing the Subject Securities for its own
account, or for one or more accounts with respect to which such person exercises sole investment
discretion, and such person and each such account is a “qualified institutional buyer” within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Subject
Securities are being transferred in compliance with any applicable securities laws of any state of
the United States.



     The Bank of New York Mellon and Citigroup Inc. are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the matters covered hereby.



	 	 	 	 	 
	 	Very truly yours,



[Name of Transferor]

 	 
	 	By:  	
 	 
	 	 	Name: 2	 	 
	 	 	Date: 	 
	 





 




			
	2	 	To be signed by an authorized signatory.






E-1