EXHIBIT 4.8


 


[FORM OF
SUBORDINATED GUARANTEED INDENTURE]


 


 




 





 


CREDIT SUISSE
GROUP FINANCE (LUXEMBOURG) S.A.


 


as the
Company,


 


CREDIT SUISSE
GROUP


 


as the
Guarantor


 


and


 


JPMORGAN CHASE
BANK, N.A.


 


as Trustee


 


SUBORDINATED
INDENTURE


 


Dated as of              


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
   

  
	
  DEFINITIONS AND INCORPORATION BY
  REFERENCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.02.

  	
  Other Definitions

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 1.03.

  	
  Incorporation by Reference of Trust Indenture Act

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 1.04.

  	
  Rules of Construction

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
   

  
	
  THE SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Form and Dating

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 2.02.

  	
  Execution and Authentication

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 2.03.

  	
  Amount Unlimited; Issuable in Series

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 2.04.

  	
  Denomination and Date of Securities; Payments of
  Interest

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 2.05.

  	
  Registrar and Paying Agent; Agents Generally

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 2.06.

  	
  Paying Agent to Hold Money in Trust

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 2.07.

  	
  Transfer and Exchange

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 2.08.

  	
  Replacement Securities

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 2.09.

  	
  Outstanding Securities

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 2.10.

  	
  Temporary Securities

  	
  18

  
	
   

  	
   

  	
   

  
	
  Section 2.11.

  	
  Cancellation

  	
  18

  
	
   

  	
   

  	
   

  
	
  Section 2.12.

  	
  CUSIP Numbers

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 2.13.

  	
  Defaulted Interest

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 2.14.

  	
  Series May Include Tranches

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 2.15.

  	
  Computation of Interest

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 2.16.

  	
  ERISA

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
   

  
	
  REDEMPTION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Applicability of Article

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 3.02.

  	
  Notice of Redemption; Partial Redemptions

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 3.03.

  	
  Payment of Securities Called for Redemption

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 3.04.

  	
  Exclusion of Certain Securities from Eligibility for
  Selection for Redemption

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 3.05.

  	
  Mandatory and Optional Sinking Funds

  	
  23

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Payment of Securities

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 4.02.

  	
  Maintenance of Office or Agency

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 4.03.

  	
  Certificate to Trustee

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 4.04.

  	
  Reports by the Company and the Guarantor

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 4.05.

  	
  Calculation of Original Issue Discount

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  
	
  SUCCESSOR CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  When the Company May Merge, Etc.

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 5.02.

  	
  Successor Substituted

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  
	
  THE GUARANTEE BY AND COVENANTS
  OF THE GUARANTOR

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Guarantee

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 6.02.

  	
  When the Guarantor May Merge, Etc.

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 6.03.

  	
  Successor Substituted

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
   

  
	
  DEFAULT AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Events of Default

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 7.02.

  	
  Acceleration

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 7.03.

  	
  Other Remedies

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 7.04.

  	
  Waiver of Past Defaults

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 7.05.

  	
  Control by Majority

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 7.06.

  	
  Limitation on Suits

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 7.07.

  	
  Rights of Holder to Receive Payment

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 7.08.

  	
  Collection Suit by Trustee

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 7.09.

  	
  Trustee May File Proofs of Claim

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 7.10.

  	
  Application of Proceeds

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 7.11.

  	
  Restoration of Rights and Remedies

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 7.12.

  	
  Undertaking for Costs

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 7.13.

  	
  Rights and Remedies Cumulative

  	
  37

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  Section 7.14.

  	
  Delay or Omission Not Waiver

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
   

  
	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  General

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 8.02.

  	
  Certain Rights of Trustee

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 8.03.

  	
  Individual Rights of Trustee

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 8.04.

  	
  Trustee’s Disclaimer

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 8.05.

  	
  Notice of Default

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 8.06.

  	
  Reports by Trustee to Holders

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 8.07.

  	
  Compensation and Indemnity

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 8.08.

  	
  Replacement of Trustee

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 8.09.

  	
  Successor Trustee by Merger, Etc.

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 8.10.

  	
  Eligibility

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 8.11.

  	
  Money Held in Trust

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
   

  
	
  DISCHARGE OF INDENTURE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Defeasance within One Year of Payment

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 9.02.

  	
  Defeasance

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 9.03.

  	
  Covenant Defeasance

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 9.04.

  	
  Application of Trust Money

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 9.05.

  	
  Repayment to Company and Guarantor

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
   

  
	
  AMENDMENTS, SUPPLEMENTS AND
  WAIVERS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Without Consent of Holders

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 10.02.

  	
  With Consent of Holders

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 10.03.

  	
  Revocation and Effect of Consent

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 10.04.

  	
  Notation on or Exchange of Securities

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 10.05.

  	
  Trustee to Sign Amendments, Etc.

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 10.06.

  	
  Conformity with Trust Indenture Act

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
   

  
	
  SUBORDINATION

  	
   

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Securities Subordinated to Senior Indebtedness

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 11.02.

  	
  No Payment on Securities in Certain Circumstances

  	
  50

  
	
   

  	
   

  	
   

  
	
  Section 11.03.

  	
  Securities Subordinated to Prior Payment of all
  Senior Indebtedness on Dissolution, Liquidation or Reorganization of Company

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 11.04.

  	
  Securityholders to be Subrogated to Rights of Senior
  Indebtedness

  	
  52

  
	
   

  	
   

  	
   

  
	
  Section 11.05.

  	
  Obligations of the Company Unconditional

  	
  52

  
	
   

  	
   

  	
   

  
	
  Section 11.06.

  	
  Trustee Entitled to Assume Payments not Prohibited
  in Absence of Notice

  	
  53

  
	
   

  	
   

  	
   

  
	
  Section 11.07.

  	
  Application by Trustee of Assets Deposited with it

  	
  53

  
	
   

  	
   

  	
   

  
	
  Section 11.08.

  	
  Subordination Rights not Impaired by Acts or
  Omissions of the Company, the Trustee, Holders of Senior Indebtedness or
  Securityholders

  	
  54

  
	
   

  	
   

  	
   

  
	
  Section 11.09.

  	
  Securityholders Authorize Trustee to Effectuate
  Subordination of Securities

  	
  54

  
	
   

  	
   

  	
   

  
	
  Section 11.10.

  	
  Right of Trustee to Hold Senior Indebtedness

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 11.11.

  	
  Article 11 Not to Prevent Events of Default

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 11.12.

  	
  No Fiduciary Duty of Trustee to Holders of Senior
  Indebtedness

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
   

  
	
  SUBORDINATION OF THE GUARANTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
  Guarantee Subordinated to Guarantor Senior Indebtedness

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 12.02.

  	
  No Payment on Guarantee in Certain Circumstances

  	
  56

  
	
   

  	
   

  	
   

  
	
  Section 12.03.

  	
  Guarantee Subordinated to Prior Payment of all
  Guarantor Senior Indebtedness on Dissolution, Liquidation or Reorganization
  of Guarantor

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 12.04.

  	
  Securityholders to be Subrogated to Rights of
  Guarantor Senior Indebtedness

  	
  58

  
	
   

  	
   

  	
   

  
	
  Section 12.05.

  	
  Obligations of the Guarantor Unconditional

  	
  59

  
	
   

  	
   

  	
   

  
	
  Section 12.06.

  	
  Trustee Entitled to Assume Payments not Prohibited
  in Absence of Notice

  	
  60

  
	
   

  	
   

  	
   

  
	
  Section 12.07.

  	
  Application by Trustee of Assets Deposited with it

  	
  60

  
	
   

  	
   

  	
   

  
	
  Section 12.08.

  	
  Subordination Rights not Impaired by Acts or
  Omissions of the Guarantor, the Company, the Trustee, Holders of Guarantor
  Senior Indebtedness or Securityholders

  	
  60

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  Section 12.09.

  	
  Securityholders Authorize Trustee to Effectuate
  Subordination of Guarantee

  	
  61

  
	
   

  	
   

  	
   

  
	
  Section 12.10.

  	
  Right of Trustee to Hold Guarantor Senior
  Indebtedness

  	
  61

  
	
   

  	
   

  	
   

  
	
  Section 12.11.

  	
  Article 12 Not to Prevent Events of Default

  	
  61

  
	
   

  	
   

  	
   

  
	
  Section 12.12.

  	
  No Fiduciary Duty of Trustee to Holders of Guarantor
  Senior Indebtedness

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.01.

  	
  Trust Indenture Act of 1939

  	
  62

  
	
   

  	
   

  	
   

  
	
  Section 13.02.

  	
  Notices

  	
  62

  
	
   

  	
   

  	
   

  
	
  Section 13.03.

  	
  Certificate and Opinion as to Conditions Precedent

  	
  63

  
	
   

  	
   

  	
   

  
	
  Section 13.04.

  	
  Statements Required in Certificate or Opinion

  	
  64

  
	
   

  	
   

  	
   

  
	
  Section 13.05.

  	
  Evidence of Ownership

  	
  64

  
	
   

  	
   

  	
   

  
	
  Section 13.06.

  	
  Rules by Trustee, Paying Agent or Registrar

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 13.07.

  	
  Payment Date other than a Business Day

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 13.08.

  	
  Governing Law

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 13.09.

  	
  No Adverse Interpretation of Other Agreements

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 13.10.

  	
  Successors

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 13.11.

  	
  Duplicate Originals

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 13.12.

  	
  Separability

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 13.13.

  	
  Table of Contents, Headings, Etc.

  	
  66

  
	
   

  	
   

  	
   

  
	
  Section 13.14.

  	
  Incorporators, Stockholders, Officers and Directors
  of Company Exempt from Individual Liability

  	
  66

  
	
   

  	
   

  	
   

  
	
  Section 13.15.

  	
  Judgment Currency

  	
  66

  



 


v

















 


SUBORDINATED
INDENTURE, dated as of              ,
20    , among Credit Suisse Group Finance (Luxembourg)
S.A., a corporation organized under the laws of Luxembourg, as the Company,
Credit Suisse Group, a company organized under the laws of Switzerland, as the
Guarantor, and JPMorgan Chase Bank, N.A., a national banking association, as
the Trustee.


 


RECITALS OF
THE COMPANY AND THE GUARANTOR


 


WHEREAS, the
Company has duly authorized the issue from time to time of its subordinated
debentures, notes or other evidences of indebtedness to be issued in one or
more series (the “Securities”) up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Indenture
and to provide, among other things, for the authentication, delivery and
administration of the Securities, the Company has duly authorized the execution
and delivery of this Indenture;


 


WHEREAS, all
things necessary to make this Indenture a valid indenture and agreement
according to its terms have been done and performed; and


 


WHEREAS, all
acts and things necessary to make the Guarantee of the Securities, as in this
Indenture provided, the valid, binding and legal obligation of the Guarantor,
and to constitute a valid Guarantee and agreement according to its terms, have
been done and performed, and the execution by the Guarantor of this Indenture
has in all respects been duly authorized;


 


NOW,
THEREFORE:


 


In
consideration of the premises and the purchases of the Securities by the holders
thereof, the Company, the Guarantor and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the Securities or of any and all series thereof and of the coupons, if
any, appertaining thereto as follows:


 


ARTICLE 1



DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01.          Definitions.


 


“Agent” means
any Registrar, Paying Agent, transfer agent or Authenticating Agent.


 


“Authorized
Newspaper” means a newspaper (which, in the case of The City of New York, will,
if practicable, be The Wall Street Journal (Eastern Edition) and in the case of
London, will, if practicable, be the Financial Times (London Edition))
published in an official language of the country of publication customarily published
at least once a day for at least five days in each calendar week and of general
circulation in The City of New York or London, as applicable. If it shall be
impractical in the opinion of the Trustee to make any publication of any


 

















 


notice required
hereby in an Authorized Newspaper, any publication or other notice in lieu
thereof which is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.


 


“Board
Resolution” means one or more resolutions of the board of directors of the
Company, the Guarantor or any authorized committee of the Company or the
Guarantor, certified by the secretary or an assistant secretary of the Company
or the Guarantor, or by any director of the Company, as the case may be, to have
been duly adopted and to be in full force and effect on the date of
certification, and delivered to the Trustee.


 


“Business Day”
means, with respect to any Security, a day that is not a day on which banking
institutions are authorized or required by law or regulation to close, in the
city (or in any of the cities, if more than one) unless otherwise specified, in
which amounts are payable, as specified in the form of such Security.


 


“Capital Stock”
means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated, whether voting or
non-voting) of such Person’s capital stock or equity, including, without
limitation, all Common Stock and Preferred Stock.


 


“Commission”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.


 


“Common Stock”
means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated, whether voting or
non-voting) of such Person’s common stock, whether now outstanding or issued
after the date of this Indenture, including, without limitation, all series and
classes of such common stock.


 


“Company”
means the party named as such in the first paragraph of this Indenture until a
successor replaces it pursuant to Article 5 of this Indenture and thereafter
means the successor.


 


“Corporate
Trust Office” means the office of the Trustee at which the corporate trust
business of the Trustee shall, at any particular time, be principally
administered, which office is, at the date of this Indenture, located at 4 New
York Plaza, 15th Floor, New York, New York 10004, Attention: Worldwide
Securities Services.


 


“Default”
means any event that is, or after notice or passage of time or both would be,
an Event of Default as defined in Section 7.01.


 


“Depositary”
means, with respect to the Securities of any series issuable or issued in the
form of one or more Registered Global Securities, the Person designated as
Depositary by the Company pursuant to Section 2.03 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter “Depositary” shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than


 


2

















 


one such
Person, “Depositary” as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Registered Global Securities of
that series.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended.


 


“Guarantee”
means the guarantee of the Guarantor as endorsed on each Security authenticated
and delivered pursuant to this Indenture and shall include the guarantee of the
Guarantor set forth in Section 6.01 of this Indenture and shall include all
other obligations and covenants of the Guarantor contained in this Indenture
and any Securities.


 


“Guarantor”
means the party named as such in the first paragraph of this Indenture until a
successor replaces it pursuant to Article 6 of this Indenture and thereafter
means the successor.


 


“Guarantor
Senior Indebtedness” means the principal of and premium, if any, and interest
on (a) all indebtedness of the Guarantor, whether outstanding on the date of
this Indenture or thereafter created, (i) for money borrowed by the Guarantor,
(ii) for money borrowed by, or obligations of, others and either assumed or
guaranteed, directly or indirectly, by the Guarantor, (iii) in respect of
letters of credit and acceptances issued or made by banks, or (iv) constituting
guarantor purchase money indebtedness, or indebtedness secured by property
included in the property, plant and equipment accounts of the Guarantor at the
time of the acquisition of such property by the Guarantor, for the payment of
which the Guarantor is directly liable and (b) all deferrals, renewals,
extensions and refundings of, and amendments, modifications and supplements to,
any such indebtedness. As used in the preceding sentence, the term “guarantor
purchase money indebtedness” means indebtedness evidenced by a note, debenture,
bond or other instrument (whether or not secured by any lien or other security
interest) issued or assumed as all or a part of the consideration for the
acquisition of property, whether by purchase, merger, consolidation or otherwise,
unless by its terms such indebtedness is subordinated to other indebtedness of
the Guarantor. Notwithstanding anything to the contrary in this Indenture or
the Guarantee, Guarantor Senior Indebtedness shall not include (i) any
indebtedness of the Guarantor which, by its terms or the terms of the
instrument creating or evidencing it, is subordinate in right of payment to or
pari passu with the Guarantee or (ii) any indebtedness of the Guarantor to a
Subsidiary of the Guarantor. [The obligations of the Guarantor under the
Guarantee shall rank pari passu with the obligations of the Guarantor, as the
company, under the subordinated indenture dated as of           ,
between the Guarantor, as the company, and JPMorgan Chase Bank, N.A. as the
trustee, and the obligations of the Guarantor as Guarantor under the
subordinated indenture dated as of               
among Credit Suisse Group Finance (Delaware) LLC I, as the company, the
Guarantor, as the Guarantor, and JPMorgan Chase Bank, N.A., as the trustee, and
the subordinated indenture dated as of               
among Credit Suisse Group Finance (Guernsey) Limited, as the company, the
Guarantor, as the Guarantor, and JPMorgan Chase Bank, N.A., as the trustee.]


 


“Holder” or “Securityholder”
means the registered holder of any Security with respect to Registered
Securities and the bearer of any Unregistered Security or any coupon
appertaining thereto, as the case may be.


 


3

















 


“Indenture”
means this Indenture as originally executed or as it may be amended or
supplemented from time to time by one or more indentures supplemental to this
Indenture entered into pursuant to the applicable provisions of this Indenture
and shall include the forms and terms of the Securities of each series
established as contemplated pursuant to Sections 2.01 and 2.03.


 


“Officer”
means, with respect to the Company, the president, any vice-president, the
treasurer, any deputy treasurer, any assistant treasurer, the secretary, any
assistant secretary or any director of the Company, and with respect to the
Guarantor, the Chairman
or Co-Chairman or Vice Chairman of the Group Executive Board, the Chief
Executive Officer or Co-Chief Executive Officer, the Chief Financial Officer,
the Chief Risk Officer, the Group General Counsel, the Group Head of Capital
and Funding and the Group Head of Accounting/Reporting, or any such other
officers or employees of the Guarantor exercising the same or similar functions.


 


“Officers’
Certificate” means a certificate by any two Officers of the Company or of the
Guarantor, as the case may be, complying with Section 13.04 and delivered to
the Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act and include (except as otherwise expressly provided in this
Indenture) the statements provided in Section 13.04.


 


“Opinion of
Counsel” means a written opinion signed by legal counsel, who may be an
employee of or counsel to the Company or to the Guarantor, or to both,
satisfactory to the Trustee and complying with Section 13.04. Each such opinion
shall comply with Section 314 of the Trust Indenture Act and include the
statements provided in Section 13.04, if and to the extent required thereby.


 


“original
issue date” of any Security (or portion thereof) means the earlier of (a) the
date of authentication of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.


 


“Original
Issue Discount Security” means any Security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to Section 7.02.


 


“Periodic
Offering” means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate or
rates of interest, if any, thereon, the stated maturity or maturities thereof
and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.


 


“Person” means
an individual, a corporation, a partnership, a limited liability company, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.


 


“Preferred
Stock” means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated, whether voting or
non-voting) of such


 


4

















 


Person’s
preferred or preference stock, whether now outstanding or issued after the date
of the Indenture, including, without limitation, all series and classes of such
preferred or preference stock.


 


“Principal” of
a Security means the principal amount of, and, unless the context indicates
otherwise, includes any premium payable on, the Security.


 


“Registered
Global Security” means a Security evidencing all or a part of a series of
Registered Securities, issued to the Depositary for such series in accordance
with Section 2.02, and bearing the legend prescribed in Section 2.02.


 


“Registered
Security” means any Security registered on the Security Register (as defined in
Section 2.05).


 


“Responsible
Officer” means, when used with respect to the Trustee, any officer within the
Corporate Trust Office, including any Vice President, Managing Director,
Assistant Vice President, Secretary, Assistant Secretary or Assistant Treasurer
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer’s knowledge and familiarity with the particular
subject.


 


“Securities”
means any of the securities, as defined in the first paragraph of the recitals
hereof, that are authenticated and delivered under this Indenture and, unless
the context indicates otherwise, shall include any coupon appertaining thereto.


 


“Senior
Indebtedness” means the principal of and premium, if any, and interest on (a)
all indebtedness of the Company, whether outstanding on the date of this
Indenture or thereafter created, (i) for money borrowed by the Company, (ii)
for money borrowed by, or obligations of, others and either assumed or
guaranteed, directly or indirectly, by the Company, (iii) in respect of letters
of credit and acceptances issued or made by banks, or (iv) constituting
purchase money indebtedness, or indebtedness secured by property included in
the property, plant and equipment accounts of the Company at the time of the
acquisition of such property by the Company, for the payment of which the
Company is directly liable and (b) all deferrals, renewals, extensions and
refundings of, and amendments, modifications and supplements to, any such
indebtedness. As used in the preceding sentence, the term “purchase money
indebtedness” means indebtedness evidenced by a note, debenture, bond or other
instrument (whether or not secured by any lien or other security interest)
issued or assumed as all or a part of the consideration for the acquisition of
property, whether by purchase, merger, consolidation or otherwise, unless by
its terms such indebtedness is subordinated to other indebtedness of the
Company. Notwithstanding anything to the contrary in this Indenture or the
Securities, Senior Indebtedness shall not include, (i) any indebtedness of the
Company which, by its terms or the terms of the instrument creating or
evidencing it, is subordinate in right of payment to or pari passu with the
Securities or (ii) any indebtedness of the Company to a Subsidiary of the
Company.


 


5

















 


“Subsidiary”
means, with respect to any Person, any corporation, association or other
business entity of which more than 50% of the outstanding Voting Stock is
owned, directly or indirectly, by such Person and one or more other
Subsidiaries of such Person.


 


“Trustee”
means the party named as such in the first paragraph of this Indenture until a
successor replaces it in accordance with the provisions of Article 8 and
thereafter means such successor.


 


“Trust
Indenture Act” means the Trust Indenture Act of 1939, as it may be amended from
time to time.


 


“Unregistered
Security” means any Security other than a Registered Security, in bearer form.


 


“U.S. GAAP”
means the generally accepted accounting principles in the United States.


 


“U.S.
Government Obligations” means securities that are (i) direct obligations of the
United States of America for the payment of which its full faith and credit is
pledged or (ii) obligations of an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, and shall also
include a depositary receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific payment of
interest on or Principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depositary receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or Principal of the U.S.
Government Obligation evidenced by such depositary receipt.


 


“Voting Stock”
means with respect to any Person, Capital Stock of any class or kind ordinarily
having the power to vote for the election of directors, managers or other
voting members of the governing body of such Person.


 


“Yield to
Maturity” means, as the context may require, the yield to maturity (i) on a
series of Securities or (ii) if the Securities of a series are issuable from
time to time, on a Security of such series, calculated at the time of issuance
of such series in the case of clause (i) or at the time of issuance of such Security
of such series in the case of clause (ii), or, if applicable, at the most
recent redetermination of interest on such series or on such Security, and
calculated in accordance with the constant interest method or such other
accepted financial practice as is specified in the terms of such Security.


 


Section 1.02.          Other
Definitions. Each of the following terms is defined in the section set
forth opposite such term:


 


6

















 


	
  TERM

  	
   

  	
  SECTION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Authenticating
  Agent

  	
   

  	
  2.02

  	
   

  
	
  cash
  transaction

  	
   

  	
  8.03

  	
   

  
	
  Code

  	
   

  	
  2.16

  	
   

  
	
  Dollars

  	
   

  	
  4.02

  	
   

  
	
  ERISA

  	
   

  	
  2.16

  	
   

  
	
  Events of
  Default

  	
   

  	
  7.01

  	
   

  
	
  Judgment
  Currency

  	
   

  	
  13.15

  	
   

  
	
  mandatory
  sinking fund payment

  	
   

  	
  3.05

  	
   

  
	
  optional
  sinking fund payment

  	
   

  	
  3.05

  	
   

  
	
  Paying Agent

  	
   

  	
  2.05

  	
   

  
	
  Plan

  	
   

  	
  2.16

  	
   

  
	
  record date

  	
   

  	
  2.04

  	
   

  
	
  Registrar

  	
   

  	
  2.05

  	
   

  
	
  Required
  Currency

  	
   

  	
  13.15

  	
   

  
	
  Security
  Register

  	
   

  	
  2.05

  	
   

  
	
  self-liquidating
  paper

  	
   

  	
  8.03

  	
   

  
	
  Similar Law

  	
   

  	
  2.16

  	
   

  
	
  sinking fund
  payment date

  	
   

  	
  3.05

  	
   

  
	
  tranche

  	
   

  	
  2.14

  	
   

  



 


Section 1.03.          Incorporation
by Reference of Trust Indenture Act. Whenever this Indenture refers to a
provision of the Trust Indenture Act, the provision is incorporated by
reference in and made a part of this Indenture. The following terms used in
this Indenture that are defined by the Trust Indenture Act have the following
meanings:


 


“indenture
securities” means the Securities and the Guarantee;


 


“indenture
security holder” means a Holder or a Securityholder;


 


“indenture to
be qualified” means this Indenture;


 


“indenture
trustee” or “institutional trustee” means the Trustee; and


 


“obligor” on
the indenture securities means the Company, the Guarantor or any other obligor
on the Securities or on the Guarantee.


 


All other
terms used in this Indenture that are defined by the Trust Indenture Act,
defined by reference in the Trust Indenture Act to another statute or defined
by a rule of the Commission and not otherwise defined herein have the meanings
assigned to them therein. If any provision of this Indenture limits, qualifies
or conflicts with another provision hereof that is required to be included in
this Indenture by any of the provisions of the Trust Indenture Act, such
required provision shall control.


 


Section 1.04.          Rules of
Construction. Unless the context otherwise requires:


 


(a)           an accounting term not
otherwise defined has the meaning assigned to it in accordance with U.S. GAAP
or such other generally accepted accounting principles under which the
Guarantor may in the future prepare its financial statements;


 


7

















 


(b)           words in the singular
include the plural, and words in the plural include the singular;


 


(c)           “herein,” “hereof” and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;


 


(d)           all references to
Sections or Articles refer to Sections or Articles of this Indenture unless
otherwise indicated; and


 


(e)           use of masculine,
feminine or neuter pronouns should not be deemed a limitation, and the use of
any such pronouns should be construed to include, where appropriate, the other
pronouns.


 


ARTICLE 2



THE SECURITIES


 


Section 2.01.          Form and
Dating. The Securities of each series shall be substantially in such form
or forms (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions of the Company or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have imprinted or otherwise reproduced thereon such
legend or legends or endorsements, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law, or with any rules of any
securities exchange or usage, all as may be determined by the Officers
executing such Securities as evidenced by their execution of the Securities. Unless
otherwise so established, Unregistered Securities shall have coupons attached.


 


Section 2.02.          Execution
and Authentication. The Securities (other than coupons) and the Guarantee
shall be executed on behalf of the Company and of the Guarantor, as the case
may be, by two of their respective Officers by facsimile or manual signature in
the name and on behalf of the Company and of the Guarantor, as the case may be.


 


The Trustee,
at the expense of the Company, or if the Company shall fail to pay such
expense, the Guarantor, may appoint an authenticating agent (the “Authenticating
Agent”) to authenticate Securities (other than coupons). The Authenticating
Agent may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such Authenticating Agent.


 


A Security
(other than coupons) shall not be valid until the Trustee or Authenticating
Agent manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.


 


At any time
and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series having attached thereto
appropriate coupons, if any, executed by the Company, with the Guarantee of the
Guarantor endorsed thereon, to the Trustee for authentication together with the
applicable documents referred to


 


8

















 


below in this
Section, and the Trustee shall thereupon authenticate and make available for
delivery such Securities to or upon the written order of the Company. In
authenticating any Securities of a series, the Trustee shall be entitled to
receive prior to the first authentication of any Securities of such series, and
shall be fully protected in relying upon, unless and until such documents have
been superseded or revoked:


 


(a)           any Board Resolution of
the Company and/or executed supplemental indenture referred to in Sections 2.01
and 2.03 by or pursuant to which the forms and terms of the Securities of that
series were established;


 


(b)           an Officers’
Certificate of the Company and the Guarantor setting forth the form or forms
and terms of the Securities and the Guarantee thereof, stating that the form or
forms and terms of the Securities of such series have been, or will be when
established in accordance with such procedures as shall be referred to therein,
established in compliance with this Indenture; and


 


(c)           an Opinion of Counsel
of the Company and the Guarantor substantially to the effect that the form or
forms and terms of the Securities of such series and the Guarantee thereof have
been, or will be when established in accordance with such procedures as shall
be referred to therein, established in compliance with this Indenture and that
the supplemental indenture, to the extent applicable, and the Securities and
the Guarantee thereof have been duly authorized and, if executed and
authenticated, or in the case of the Guarantee, if the Security on which the
Guarantee shall have been endorsed shall have been authenticated, in accordance
with the provisions of the Indenture and delivered to and duly paid for by the
purchasers thereof on the date of such opinion, would be entitled to the
benefits of the Indenture and would be valid and binding obligations of the
Company and the Guarantor, as the case may be, enforceable against the Company
and the Guarantor, as the case may be, in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization, receivership,
moratorium and other similar laws affecting creditors’ rights generally,
general principles of equity, and such other matters as shall be specified
therein.


 


If the Company
shall establish pursuant to Section 2.03 that the Securities of a series or a
portion thereof are to be issued in the form of one or more Registered Global
Securities, then the Company shall execute, and the Guarantor shall execute the
Guarantee endorsed thereon, and the Trustee shall authenticate and make
available for delivery one or more Registered Global Securities, having a
Guarantee executed by the Guarantor endorsed thereon, that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount
of all of the Securities of such series issued in such form and not yet
canceled, (ii) shall be registered in the name of the Depositary for such
Registered Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or its custodian or
pursuant to such Depositary’s instructions and (iv) shall bear a legend
substantially to the following effect:


 


“Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or


 


9

















 


another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary.”


 


Section 2.03.          Amount
Unlimited; Issuable in Series. The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is unlimited.


 


The Securities
may be issued in one or more series and each such series shall rank junior in
right of payment, to the extent provided herein, to all Senior Indebtedness. There
shall be established in or pursuant to a Board Resolution of the Company or one
or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series (subject to the last sentence of this Section 2.03):


 


(a)           the designation of the
Securities of the series, which shall distinguish the Securities of the series
from the Securities of all other series;


 


(b)           any limit upon the
aggregate principal amount of the Securities of the series that may be
authenticated and delivered under this Indenture and any limitation on the
ability of the Company to increase such aggregate principal amount after the
initial issuance of the Securities of that series (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, or upon redemption of, other Securities of the series
pursuant hereto);


 


(c)           the date or dates on
which the Principal of the Securities of the series is payable (which date or
dates may be fixed or are subject to extension);


 


(d)           the rate or rates
(which may be fixed or variable) per annum at which the Securities of the
series shall bear interest, if any, the date or dates from which such interest
shall accrue, on which such interest shall be payable and (in the case of
Registered Securities) on which a record shall be taken for the determination
of Holders to whom interest is payable and/or the method by which such rate or
rates or date or dates shall be determined;


 


(e)           if other than as provided
in Section 4.02, the place or places where the Principal of and any interest on
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for exchange, notices, demands to or upon the Company
in respect of the Securities of the series and this Indenture may be served and
notice to Holders may be published;


 


(f)            the right, if any, of
the Company to redeem Securities of the series, in whole or in part, at its
option and the period or periods within which, the price or prices at which and
any terms and conditions upon which Securities of the series may be so
redeemed, pursuant to any sinking fund or otherwise;


 


(g)           the obligation, if any,
of the Company to redeem, purchase or repay Securities of the series pursuant
to any mandatory redemption, sinking fund or analogous provisions or at the
option of a Holder thereof and the price or prices at which and the period or
periods within which and any of the terms and conditions upon which Securities
of the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;


 


10

















 


(h)           if other than
denominations of $2,000 and any integral multiple of $1,000 in excess thereof,
the denominations in which Securities of the series shall be issuable;


 


(i)            if other than the
entire principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof;


 


(j)            if other than the coin
or currency in which the Securities of the series are denominated, the coin or
currency in which payment of the Principal of or interest on the Securities of
the series shall be payable or if the amount of payments of Principal of and/or
interest on the Securities of the series may be determined with reference to an
index based on a coin or currency other than that in which the Securities of
the series are denominated, the manner in which such amounts shall be
determined;


 


(k)           if payment of the
Principal of and interest on the Securities of the series shall be payable in
currency or currencies other than the currency of the United States, the manner
in which any such currency shall be valued against other currencies in which
any other Securities shall be payable;


 


(l)            whether the Securities
of the series or any portion thereof will be issuable as Registered Securities
(and if so, whether such Securities will be issuable as Registered Global
Securities) or Unregistered Securities (with or without coupons), or any
combination of the foregoing, any restrictions applicable to the offer, sale or
delivery of Unregistered Securities or the payment of interest thereon and, if
other than as provided herein, the terms upon which Unregistered Securities of
any series may be exchanged for Registered Securities of such series and vice
versa;


 


(m)          whether and under what
circumstances the Company will pay additional amounts on the Securities in
respect of any tax, assessment or governmental charge withheld or deducted and,
if so, whether the Company will have the option to redeem such Securities
rather than pay such additional amounts;


 


(n)           if the Securities of
the series are to be issuable in definitive form (whether upon original issue
or upon exchange of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;


 


(o)           any trustees,
depositaries, authenticating or paying agents, transfer agents or the registrar
or any other agents with respect to the Securities of the series;


 


(p)           provisions, if any, for
the defeasance of the Securities of the series (including provisions permitting
defeasance of less than all Securities of the series), which provisions may be
in addition to, in substitution for, or in modification of (or any combination
of the foregoing) the provisions of Article 9;


 


(q)           if the Securities of
the series are issuable in whole or in part as one or more Registered Global
Securities, the identity of the Depositary for such Registered Global Security
or Securities;


 


11

















 


(r)            any other events of
default or covenants with respect to the Securities of the series;


 


(s)           whether and under what
circumstances the Holders may or are required to convert or exchange the
Securities into or for other securities of the Company or of another entity,
and if so, the terms relating to such conversion or exchange; and


 


(t)            any other terms of the
Securities of the series (which terms shall not be inconsistent with the
provisions of this Indenture).


 


All Securities
of any one series and coupons, if any, appertaining thereto shall be
substantially identical, except in the case of Registered Securities as to date
and denomination, except in the case of any Periodic Offering and except as may
otherwise be provided by or pursuant to the Board Resolution referred to above
or as set forth in any such indenture supplemental hereto. All Securities of
any one series need not be issued at the same time and may be issued from time
to time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution or in any such indenture supplemental hereto
and any forms and terms of Securities to be issued from time to time may be
completed and established from time to time prior to the issuance thereof by
procedures described in such Board Resolution or supplemental indenture.


 


Section 2.04.          Denomination
and Date of Securities; Payments of Interest. The Securities of each series
shall be issuable as Registered Securities or Unregistered Securities in
denominations established as contemplated by Section 2.03 or, if not so
established with respect to Securities of any series, in denominations of
$2,000 and any integral multiple of $1,000 in excess thereof.


 


The Securities
of each series shall be numbered, lettered or otherwise distinguished in such
manner or in accordance with such plan as the Officers of the Company executing
the same may determine, as evidenced by their execution thereof.


 


Each Security
shall be dated the date of its authentication. The Securities of each series
shall bear interest, if any, from the date, and such interest shall be payable
on the dates, established as contemplated by Section 2.03.


 


The person in
whose name any Registered Security of any series is registered at the close of
business on any record date applicable to a particular series with respect to
any interest payment date for such series shall be entitled to receive the
interest, if any, payable on such interest payment date notwithstanding any
transfer or exchange of such Registered Security subsequent to the record date
and prior to such interest payment date, except if and to the extent the
Company shall default in the payment of the interest due on such interest
payment date for such series, in which case the provisions of Section 2.13
shall apply. The term “record date” as used with respect to any interest
payment date (except a date for payment of defaulted interest) for the
Securities of any series shall mean the date specified as such in the terms of
the Registered Securities of such series established as contemplated by Section
2.03, or, if no such date is so established, the fifteenth day next preceding
such interest payment date, whether or not such record date is a Business Day.


 


12

















 


Section 2.05.          Registrar
and Paying Agent; Agents Generally. The Company shall maintain an office or
agency where Securities may be presented for registration, registration of
transfer or exchange (the “Registrar”) and the Company and the Guarantor shall
maintain an office or agency where Securities may be presented for payment or
where, in the case of the Guarantor, Securities may be presented for payment
under the Guarantees endorsed thereon (the “Paying Agent”), which shall be in
the Borough of Manhattan, The City of New York. The Company shall cause the
Registrar to keep a register of the Registered Securities and of their
registration, transfer and exchange (the “Security Register”). The Company and
the Guarantor may have one or more additional Paying Agents or transfer agents
with respect to any series.


 


The Company
shall enter into an appropriate agency agreement with any Agent that is not a
party to this Indenture. The agreement shall implement the provisions of this
Indenture and the Trust Indenture Act that relate to such Agent. The Company
shall give prompt written notice to the Trustee of the name and address of any
Agent and any change in the name or address of an Agent. If the Company fails
to maintain a Registrar or if the Company or the Guarantor fail to maintain a
Paying Agent, the Trustee shall act as such. The Company or the Guarantor may remove
any Agent appointed by it upon written notice to such Agent and the Trustee; provided
that no such removal shall become effective until (i) the acceptance of an
appointment by a successor Agent to such Agent as evidenced by an appropriate
agency agreement entered into by the Company or the Guarantor and such
successor Agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the appointment of a
successor Agent in accordance with clause (i) of this proviso. The Company, the
Guarantor or any affiliate of the Company or the Guarantor may act as Paying
Agent or Registrar; provided that neither the Company, the Guarantor nor
an affiliate of the Company or the Guarantor shall act as Paying Agent in
connection with the defeasance of the Securities or the discharge of this
Indenture under Article 9.


 


The Company
initially appoints the Trustee as Registrar and Authenticating Agent and the
Company and the Guarantor initially appoint the Trustee as Paying Agent. If, at
any time, the Trustee is not the Registrar, the Registrar shall make available
to the Trustee ten days prior to each interest payment date and at such other
times as the Trustee may reasonably request the names and addresses of the
Holders as they appear in the Security Register.


 


Section 2.06.          Paying
Agent to Hold Money in Trust. Not later than 10:00 a.m., New York City
time, on each due date of any Principal or interest on any Securities, the
Company shall deposit with the Paying Agent money in immediately available
funds sufficient to pay such Principal or interest. The Company shall require
each Paying Agent other than the Trustee to agree in writing that such Paying
Agent shall hold in trust for the benefit of the Holders of such Securities or
the Trustee all money held by the Paying Agent for the payment of Principal of
and interest on such Securities and shall promptly notify the Trustee in
writing of any default in making any such payment. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed, and the Trustee may at any time during the continuance
of any payment default, upon written request to a Paying Agent, require such
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. Upon doing so, the Paying Agent shall have no further
liability for the money so paid over to the Trustee. If the Company, the
Guarantor or any affiliate of the Company or the Guarantor acts as Paying
Agent, it will, on or before each due date of any


 


13

















 


Principal of
or interest on any Securities, segregate and hold in a separate trust fund for
the benefit of the Holders thereof a sum of money sufficient to pay such
Principal or interest so becoming due until such sum of money shall be paid to
such Holders or otherwise disposed of as provided in this Indenture, and will
promptly notify the Trustee in writing of its action or failure to act as
required by this Section.


 


Section 2.07.          Transfer
and Exchange. Unregistered Securities (except for any temporary global
Unregistered Securities) and coupons (except for coupons attached to any
temporary global Unregistered Securities) shall be transferable by delivery.


 


At the option
of the Holder thereof, Registered Securities of any series (other than a
Registered Global Security, except as set forth below) may be exchanged for a
Registered Security or Registered Securities of such series and tenor having
authorized denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in accordance with Section
2.05 and upon payment, if the Company shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise established pursuant to
Section 2.03, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series and tenor
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in accordance with Section
4.02, with, in the case of Unregistered Securities that have coupons attached,
all unmatured coupons and all matured coupons in default thereto appertaining,
and upon payment, if the Company shall so require, of the charges hereinafter
provided.


 


At the option
of the Holder thereof, if Unregistered Securities of any series, maturity date,
interest rate and original issue date are issued in more than one authorized
denomination, except as otherwise established pursuant to Section 2.03, such
Unregistered Securities may be exchanged for Unregistered Securities of such
series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Unregistered Securities to be
exchanged at the agency of the Company that shall be maintained for such
purpose in accordance with Section 4.02, with, in the case of Unregistered
Securities that have coupons attached, all unmatured coupons and all matured
coupons in default thereto appertaining, and upon payment, if the Company shall
so require, of the charges hereinafter provided. [Registered Securities of any
series may not be exchanged for Unregistered Securities of such series.]


 


Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Securities,
having a Guarantee executed by the Guarantor endorsed thereon, which the Holder
making the exchange is entitled to receive.


 


Upon surrender
for registration of transfer of any Registered Security of a series at the
agency of the Company that shall be maintained for such purpose in accordance
with Section 2.05 and upon payment, if the Company shall so require, of the
charges hereinafter provided, the Company shall execute, and the Trustee shall
authenticate and make available for


 


14

















 


delivery, in
the name of the designated transferee or transferees, one or more new
Registered Securities of the same series, having a Guarantee executed by the
Guarantor endorsed thereon, of any authorized denominations and of like tenor
and aggregate principal amount.


 


All Registered
Securities presented for registration of transfer, exchange, redemption or payment
shall be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company, the Guarantor and
the Trustee duly executed by, the holder or his attorney duly authorized in
writing [and, if required by law, accepted by the transferee].


 


The Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any exchange or registration of
transfer of Securities. No service charge shall be made for any such
transaction.


 


Notwithstanding
any other provision of this Section 2.07, unless and until it is exchanged in
whole or in part for Securities in definitive registered form, a Registered
Global Security representing all or a portion of the Securities of a series may
not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary or any such
nominee to a successor Depositary for such series or a nominee of such
successor Depositary.


 


If at any time
the Depositary for any Registered Global Securities of any series notifies the
Company that it is unwilling or unable to continue as Depositary for such
Registered Global Securities or if at any time the Depositary for such
Registered Global Securities shall no longer be eligible under applicable law,
the Company shall appoint a successor Depositary eligible under applicable law
with respect to such Registered Global Securities. If a successor Depositary
eligible under applicable law for such Registered Global Securities is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company will execute, and the
Trustee, upon receipt of the Company’s order for the authentication and
delivery of definitive Registered Securities of such series and tenor, will
authenticate and make available for delivery Registered Securities of such series
and tenor, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of such Registered Global Securities, having a
Guarantee executed by the Guarantor endorsed thereon, in exchange for such
Registered Global Securities.


 


Definitive
Registered Securities of a series may be issued if the Company at any time
determines in its sole discretion (subject to the procedures of the Depositary)
that Registered Global Securities of such series shall no longer be maintained
in global form or if an Event of Default with respect to such Registered Global
Securities has occurred and is continuing. In either such case, the Company
will execute, and the Trustee, upon receipt of the Company’s order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and make available for delivery, Registered
Securities of such series and tenor in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Securities, having a Guarantee executed by the Guarantor endorsed
thereon, in exchange for such Registered Global Securities.


 


15

















 


Any time the
Registered Securities of any series are not in the form of Registered Global
Securities pursuant to the preceding two paragraphs, the Company agrees to
supply the Trustee with a reasonable supply of certificates representing
Registered Securities, having a Guarantee executed by the Guarantor endorsed
thereon, without the legend required by Section 2.02 and the Trustee agrees to
hold such Registered Securities in safekeeping until authenticated and
delivered pursuant to the terms of this Indenture.


 


If established
by the Company pursuant to Section 2.03 with respect to any Registered Global
Security, the Depositary for such Registered Global Security may surrender such
Registered Global Security in exchange in whole or in part for Registered
Securities of the same series and tenor in definitive registered form on such
terms as are acceptable to the Company and such Depositary. Thereupon, the
Company shall execute, and the Trustee shall authenticate and make available
for delivery, without service charge,


 


(i)  to the Person specified by such Depositary
new Registered Securities of the same series and tenor, having a Guarantee
executed by the Guarantor endorsed thereon, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in
exchange for such Person’s beneficial interest in the Registered Global
Security; and


 


(ii)  to such Depositary a new Registered Global
Security, having a Guarantee executed by the Guarantor endorsed thereon, in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Registered Global Security and the aggregate principal amount
of Registered Securities authenticated and delivered pursuant to clause (i)
above.


 


Registered
Securities issued in exchange for a Registered Global Security, having a
Guarantee executed by the Guarantor endorsed thereon, pursuant to this Section
2.07 shall be registered in such names and in such authorized denominations as
the Depositary for such Registered Global Security, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee or an agent of the Company or the Trustee in writing. The Trustee or
such agent shall deliver such Securities to or as directed in writing by the
Persons in whose names such Securities are so registered.


 


All Securities
(including the Guarantee endorsed thereon) issued upon any transfer or exchange
of Securities shall be valid obligations of the Company and the Guarantor,
evidencing the same debt, and entitled to the same benefits under this
Indenture and the Guarantee endorsed thereon, as the Securities surrendered
upon such transfer or exchange.


 


In registering
the transfer or exchange of any Security, the Trustee shall not be required to
determine if the Officer whose manual or facsimile signature appears on the
Security or Guarantee at the time of such transfer or exchange continues to
hold that office and shall incur no liability in connection with such transfer
or exchange if in fact such Officer no longer holds that office.


 


Notwithstanding
anything herein or in the forms or terms of any Securities to the contrary,
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be


 


16

















 


required to
exchange any Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the Company or to
the Guarantor (such as, for example, the imposition of any excise tax on the
Company or the Guarantor) under then applicable United States Federal income
tax laws. The Trustee and any such agent shall be entitled to rely conclusively
on an Officers’ Certificate or an Opinion of Counsel in determining such
result.


 


The Registrar
shall not be required (i) to issue, authenticate, register the transfer of or
exchange Securities of any series for a period of 15 days before a selection of
such Securities to be redeemed or (ii) to register the transfer of or exchange
any Security selected for redemption in whole or in part.


 


Section 2.08.          Replacement
Securities. If a defaced or mutilated Security of any series is surrendered
to the Trustee or if a Holder claims that its Security of any series has been
lost, destroyed or wrongfully taken and presents to the Trustee, the Company,
the Guarantor and any Agent evidence to their satisfaction of the loss,
destruction or wrongful taking of such Security, the Company shall issue and
the Trustee shall authenticate a replacement Security of such series and tenor
and principal amount, having a Guarantee executed by the Guarantor endorsed
thereon, bearing a number not contemporaneously outstanding. An indemnity bond
or similar guarantee must be furnished that is sufficient in the judgment of
the Trustee, the Company and the Guarantor to protect the Trustee, the Company,
the Guarantor and any Agent from any loss that any of them may suffer if a
Security is replaced. The Company may charge such Holder for its expenses and
the expenses of the Trustee (including without limitation attorneys’ fees and
expenses) in replacing a Security. In case any such mutilated, defaced, lost,
destroyed or wrongfully taken Security has become or is about to become due and
payable, the Company and the Guarantor in their discretion may pay such
Security instead of issuing a new Security (with the Guarantee endorsed
thereon) in replacement thereof.


 


Every
replacement Security (including the Guarantee endorsed thereon) is an
additional obligation of the Company and the Guarantor and shall be entitled to
the benefits of this Indenture equally and proportionately with any and all
other Securities of such series and the Guarantee endorsed thereon duly
authenticated and delivered hereunder.


 


To the extent
permitted by law, the foregoing provisions of this Section are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or
wrongfully taken Securities.


 


Section 2.09.          Outstanding
Securities. Securities outstanding at any time are all Securities that have
been authenticated by the Trustee except for those Securities canceled by it,
those Securities delivered to it for cancellation, those paid pursuant to
Section 2.08 and those Securities described in this Section as not outstanding.


 


If a Security
is replaced pursuant to Section 2.08, it ceases to be outstanding unless and
until the Trustee, the Company and the Guarantor receive proof satisfactory to
them that the replaced Security is held by a holder in due course.


 


17

















 


If the Paying
Agent (other than the Company, the Guarantor or an affiliate of the Company or
the Guarantor) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to
be redeemed or repurchased on such date, then on and after such date such
Securities shall cease to be outstanding and interest on them shall cease to
accrue.


 


A Security
does not cease to be outstanding because the Company, the Guarantor or one of
the affiliates of the Company or the Guarantor holds such Security, provided,
however, that, in determining whether the Holders of the requisite
principal amount of the outstanding Securities shall have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company, the Guarantor or any affiliate of the Company
or the Guarantor shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities as to which a Responsible Officer of the Trustee has received
written notice to be so owned shall be so disregarded. Any Securities so owned
which are pledged by the Company, the Guarantor, or any affiliate of the
Company or the Guarantor, as security for loans or other obligations, otherwise
than to another such affiliate of the Company or the Guarantor, shall be deemed
to be outstanding, if the pledgee is entitled pursuant to the terms of its
pledge agreement and is free to exercise in its discretion the right to vote
such securities, uncontrolled by the Company, the Guarantor or any such
affiliate.


 


Section 2.10.          Temporary
Securities. Until definitive Securities of any series are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities of such series, having the Guarantee of the Guarantor endorsed
thereon. Temporary Securities of any series shall be substantially in the form
of definitive Securities of such series but may have insertions, substitutions,
omissions and other variations determined to be appropriate by the Officers of
the Company and the Guarantor executing the temporary Securities or the
Guarantee endorsed thereon, as evidenced by their execution of such temporary
Securities or Guarantee, as applicable. If temporary Securities of any series
are issued, the Company will cause definitive Securities of such series, having
the Guarantee of the Guarantor endorsed thereon, to be prepared without
unreasonable delay. After the preparation of definitive Securities of any
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series and tenor upon surrender of such temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series the Company
shall execute and the Trustee shall authenticate and make available for
delivery in exchange therefor a like principal amount of definitive Securities
of such series and tenor and authorized denominations, having a Guarantee
executed by the Guarantor endorsed thereon. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series.


 


Section 2.11.          Cancellation.
The Company or the Guarantor at any time may deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company or the Guarantor may have acquired in any manner whatsoever,
and may deliver to the Trustee for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold. The Registrar,
any transfer agent and the Paying


 


18

















 


Agent shall
forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee shall cancel all Securities surrendered for
transfer, exchange, payment or cancellation and shall deliver such canceled
Securities to the Company or the Guarantor, as applicable. The Company may not
issue new Securities to replace Securities it has paid in full or delivered to
the Trustee for cancellation.


 


Section 2.12.          CUSIP
Numbers. The Company in issuing the Securities may use “CUSIP” and “CINS”
numbers (if then generally in use), and the Trustee shall use CUSIP numbers or
CINS numbers, as the case may be, in notices of redemption or exchange as a
convenience to Holders and no representation shall be made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of redemption or exchange.


 


Section 2.13.          Defaulted
Interest. If the Company defaults in a payment of interest on the
Securities, it shall pay, or shall deposit with the Paying Agent money in
immediately available funds sufficient to pay, the defaulted interest plus (to
the extent lawful) any interest payable on the defaulted interest (as may be
specified in the terms thereof, established pursuant to Section 2.03) to the
Persons who are Holders on a subsequent special record date, which shall mean
the 15th day next preceding the date fixed by the Company for the payment of
defaulted interest, whether or not such day is a Business Day. At least 15 days
before such special record date, the Company shall mail to each Holder and to
the Trustee a notice that states the special record date, the payment date and
the amount of defaulted interest to be paid.


 


Section 2.14.          Series
May Include Tranches. A series of Securities may include one or more
tranches (each a “tranche”) of Securities, including Securities issued in a
Periodic Offering. The Securities of different tranches may have one or more
different terms, including authentication dates and public offering prices, but
all the Securities within each such tranche shall have identical terms,
including authentication date and public offering price. Notwithstanding any
other provision of this Indenture, with respect to Sections 2.02 (other than
the fourth paragraph thereof) through 2.04, 2.07, 2.08, 2.10, 3.01 through
3.05, 4.02, 7.01 through 7.14, 9.01 through 9.05 and 10.02, if any series of
Securities includes more than one tranche, all provisions of such sections
applicable to any series of Securities shall be deemed equally applicable to
each tranche of any series of Securities in the same manner as though
originally designated a series unless otherwise provided with respect to such
series or tranche pursuant to Section 2.03. In particular, and without limiting
the scope of the next preceding sentence, any of the provisions of such
sections which provide for or permit action to be taken with respect to a
series of Securities shall also be deemed to provide for and permit such action
to be taken instead only with respect to Securities of one or more tranches
within that series (and such provisions shall be deemed satisfied thereby),
even if no comparable action is taken with respect to Securities in the
remaining tranches of that series.


 


Section 2.15.          Computation
of Interest. Except as otherwise specified pursuant to Section 2.03 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.


 


19

















 


Section 2.16.          ERISA.
No Securities may be sold or otherwise transferred unless the purchaser or
transferee of such Securities represents, or is deemed to represent, that on
each day from the date of acquisition through and including the date of
disposition either (i) it is not an employee benefit plan or other plan subject
to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”),
a governmental or other plan subject to substantially similar federal, state or
local law (“Similar Law”), an entity whose underlying assets include “plan
assets” by reason of any such plan’s investment in the entity or otherwise
(each of the foregoing, a “Plan”) or acting on behalf of or investing the
assets of any such Plan or (ii) its 
acquisition, holding and disposition of the Securities will not
constitute or result in a non-exempt prohibited transaction under Section 406
of ERISA or Section 4975 of the Code including by reason of Prohibited
Transaction Class Exemption 96-23, 95-60, 91-38, 90-1 or 84-14 or in a
violation of Similar Law.


 


ARTICLE 3



REDEMPTION


 


Section 3.01.          Applicability
of Article. The provisions of this Article shall be applicable to the
Securities of any series which are redeemable before their maturity or to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.03 for Securities of such series.


 


Section 3.02.          Notice
of Redemption; Partial Redemptions. Notice of redemption to the Holders of
Registered Securities of any series to be redeemed as a whole or in part at the
option of the Company shall be given by mailing notice of such redemption by
first class mail, postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption to such Holders of Registered Securities
of such series at their last addresses as they shall appear upon the Security
Register of the Company. Notice of redemption to the Holders of Unregistered
Securities of any series to be redeemed as a whole or in part, who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of the
Trust Indenture Act, shall be given by mailing notice of such redemption, by
first class mail, postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption, to such Holders at such addresses as
were so furnished to the Trustee (and, in the case of any such notice given by
the Company, the Trustee shall make such information available to the Company
for such purpose). Notice of redemption to all other Holders of Unregistered
Securities of any series to be redeemed as a whole or in part shall be
published in an Authorized Newspaper in The City of New York and in an
Authorized Newspaper in London, in each case, once in each of three successive
calendar weeks, the first publication to be not less than 30 days nor more than
60 days prior to the date fixed for redemption. Any notice which is mailed or
published in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice to the Holder of any Security of a
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.


 


The notice of
redemption to each such Holder shall specify the principal amount of each
Security of such series held by such Holder to be redeemed, the CUSIP and CINS


 


20

















 


numbers of the
Securities to be redeemed, the date fixed for redemption, the redemption price,
the place or places of payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Securities with coupons
attached thereto, of all coupons appertaining thereto maturing after the date
fixed for redemption, that such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, that interest accrued to
the date fixed for redemption will be paid as specified in such notice and that
on and after said date interest thereon or on the portions thereof to be
redeemed will cease to accrue. In case any Security of a series is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or
Securities of such series and tenor in principal amount equal to the unredeemed
portion thereof will be issued.


 


The notice of
redemption of Securities of any series to be redeemed at the option of the
Company shall be given by the Company or, at the Company’s request, by the
Trustee in the name and at the expense of the Company.


 


On or before
10:00 a.m., New York City time, on the redemption date specified in the notice
of redemption given as provided in this Section, the Company will deposit with
the Trustee or with one or more Paying Agents (or, if the Company is acting as
its own Paying Agent, set aside, segregate and hold in trust as provided in
Section 2.06) an amount of money sufficient to redeem on the redemption date
all the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. If all of the outstanding Securities of a series are to be
redeemed, the Company will deliver to the Trustee at least 10 days prior to the
last date on which notice of redemption may be given to Holders pursuant to the
first paragraph of this Section 3.02 (or such shorter period as shall be acceptable
to the Trustee) an Officers’ Certificate stating that all such Securities are
to be redeemed.


 


If less than
all the outstanding Securities of a series are to be redeemed, the Company will
deliver to the Trustee at least 15 days prior to the last date on which notice
of redemption may be given to Holders pursuant to the first paragraph of this
Section 3.02 (or such shorter period as shall be acceptable to the Trustee) an
Officers’ Certificate stating the aggregate principal amount of such Securities
to be redeemed. In case of a redemption at the election of the Company prior to
the expiration of any restriction on such redemption, the Company shall deliver
to the Trustee, prior to the giving of any notice of redemption to Holders
pursuant to this Section, an Officers’ Certificate stating that such redemption
is not prohibited by such restriction. If less than all the Securities of a
series are to be redeemed, the Trustee shall select, pro rata, by lot or in
such manner as it shall deem appropriate and fair, Securities of such series to
be redeemed in whole or in part. Securities may be redeemed in part in
principal amounts equal to the authorized denominations for Securities of such
series. The Trustee shall promptly notify the Company and the Guarantor in
writing of the Securities of such series selected for redemption and, in the
case of any Securities of such series selected for partial redemption, the
principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the
redemption of Securities shall relate, in the case of any Security redeemed or
to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.


 


21

















 


Section 3.03.          Payment
of Securities Called for Redemption. If notice of redemption has been given
as above provided, the Securities or portions of Securities specified in such
notice shall become due and payable on the date and at the place stated in such
notice at the applicable redemption price, together with interest accrued to
the date fixed for redemption, and on and after such date (unless the Company
shall default in the payment of such Securities at the redemption price,
together with interest accrued to such date) interest on the Securities or
portions of Securities so called for redemption shall cease to accrue, and the
unmatured coupons, if any, appertaining thereto shall be void and, except as
provided in Sections 8.11 and 9.04, such Securities shall cease from and after
the date fixed for redemption to be entitled to any benefit under this
Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption.


 


On
presentation and surrender of such Securities at a place of payment specified
in said notice, together with all coupons, if any, appertaining thereto
maturing after the date fixed for redemption, said Securities or the specified
portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with interest accrued thereon to the date fixed for
redemption; provided that payment of interest becoming due on or prior
to the date fixed for redemption shall be payable in the case of Securities
with coupons attached thereto, to the Holders of the coupons for such interest
upon surrender thereof, and in the case of Registered Securities, to the
Holders of such Registered Securities registered as such on the relevant record
date subject to the terms and provisions of Sections 2.04 and 2.13 hereof. If
any Security called for redemption shall not be so paid upon surrender thereof
for redemption, the Principal shall, until paid or duly provided for, bear
interest from the date fixed for redemption at the rate of interest or Yield to
Maturity (in the case of an Original Issue Discount Security) borne by such
Security.


 


If any
Security with coupons attached thereto is surrendered for redemption and is not
accompanied by all appurtenant coupons maturing after the date fixed for
redemption, the surrender of such missing coupon or coupons may be waived by
the Company, the Guarantor and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.


 


Upon
presentation of any Security of any series redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for
delivery to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), each having a Guarantee executed by the Guarantor
endorsed thereon, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.


 


Section 3.04.          Exclusion
of Certain Securities from Eligibility for Selection for Redemption. Securities
shall be excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in a written statement signed
by an Officer of the Company and delivered to the Trustee at least 60 days
prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Company, (b) the Guarantor or (c) an entity specifically identified


 


22

















 


in such
written statement as directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or the Guarantor.


 


Section 3.05.          Mandatory
and Optional Sinking Funds. The minimum amount of any sinking fund payment
provided for by the terms of the Securities of any series is herein referred to
as a “mandatory sinking fund payment,” and any payment in excess of such
minimum amount provided for by the terms of the Securities of any series is
herein referred to as an “optional sinking fund payment.” The date on which a
sinking fund payment is to be made is herein referred to as the “sinking fund
payment date.”


 


In lieu of
making all or any part of any mandatory sinking fund payment with respect to
any series of Securities in cash, the Company may at its option (a) deliver to
the Trustee Securities of such series theretofore purchased or otherwise
acquired (except through a mandatory sinking fund payment) by the Company or
receive credit for Securities of such series (not previously so credited)
theretofore purchased or otherwise acquired (except as aforesaid) by the
Company and delivered to the Trustee for cancellation pursuant to Section 2.11,
(b) receive credit for optional sinking fund payments (not previously so
credited) made pursuant to this Section, or (c) receive credit for Securities
of such series (not previously so credited) redeemed by the Company through any
optional sinking fund payment. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.


 


On or before
the sixtieth day next preceding each sinking fund payment date for any series,
or such shorter period as shall be acceptable to the Trustee, the Company will
deliver to the Trustee an Officers’ Certificate (a) specifying the portion of
the mandatory sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of specified Securities of such series and
the basis for such credit, (b) stating that none of the specified Securities of
such series has theretofore been so credited, (c) stating that no defaults in
the payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Company intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Company
intends to pay on or before the next succeeding sinking fund payment date. Any
Securities of such series to be credited and required to be delivered to the
Trustee in order for the Company to be entitled to credit therefor as aforesaid
which have not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.11 to the Trustee with such Officers’
Certificate (or reasonably promptly thereafter if acceptable to the Trustee). Such
Officers’ Certificate shall be irrevocable and, upon its receipt by the
Trustee, the Company shall become unconditionally obligated to make all the
cash payments or delivery of Securities therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of the Company,
on or before any such sixtieth day, to deliver such Officers’ Certificate and
Securities specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Company (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash
without the option to deliver or credit Securities of such series in respect
thereof and (ii) that the Company will make no optional sinking fund payment
with respect to such series as provided in this Section.


 


23

















 


If the sinking
fund payment or payments (mandatory or optional or both) to be made in cash on
the next succeeding sinking fund payment date plus any unused balance of any
preceding sinking fund payments made in cash shall exceed $50,000 (or a lesser
sum if the Company shall so request with respect to the Securities of any
series), such cash shall be applied on the next succeeding sinking fund payment
date to the redemption of Securities of such series at the sinking fund
redemption price thereof together with accrued interest thereon to the date
fixed for redemption. If such amount shall be $50,000 (or such lesser sum) or
less and the Company makes no such request then it shall be carried over until
a sum in excess of $50,000 (or such lesser sum) is available. The Trustee shall
select, in the manner provided in Section 3.02, for redemption on such sinking
fund payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by
the Company) inform the Company of the serial numbers of the Securities of such
series (or portions thereof) so selected. Securities shall be excluded from eligibility
for redemption under this Section if they are identified by registration and
certificate number in an Officers’ Certificate delivered to the Trustee at
least 60 days prior to the sinking fund payment date as being owned of record
and beneficially by, and not pledged or hypothecated by either (a) the Company,
(b) the Guarantor or (c) an entity specifically identified in such Officers’
Certificate as directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or the Guarantor. The
Trustee, in the name and at the expense of the Company (or the Company, if it
shall so request the Trustee in writing) shall cause notice of redemption of
the Securities of such series to be given in substantially the manner provided
in Section 3.02 (and with the effect provided in Section 3.03) for the
redemption of Securities of such series in part at the option of the Company. The
amount of any sinking fund payments not so applied or allocated to the
redemption of Securities of such series shall be added to the next cash sinking
fund payment for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section. Any and all sinking fund
moneys held on the stated maturity date of the Securities of any particular
series (or earlier, if such maturity is accelerated), which are not held for
the payment or redemption of particular Securities of such series shall be
applied, together with other moneys, if necessary, sufficient for the purpose,
to the payment of the Principal of, and interest on, the Securities of such
series at maturity.


 


On or before
10:00 a.m., New York City time, on each sinking fund payment date, the Company
shall pay to the Trustee in cash or shall otherwise provide for the payment of
all interest accrued to the date fixed for redemption on Securities to be
redeemed on the next following sinking fund payment date. The Trustee shall not
redeem or cause to be redeemed any Securities of a series with sinking fund moneys
or mail any notice of redemption of Securities of such series by operation of
the sinking fund during the continuance of a Default in payment of interest on
such Securities or of any Event of Default except that, where the mailing of
notice of redemption of any Securities shall theretofore have been made, the
Trustee shall redeem or cause to be redeemed such Securities, provided
that it shall have received from the Company a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund for such series
at the time when any such Default or Event of Default shall occur, and any
moneys thereafter paid into the sinking fund, shall, during the continuance of
such default or Event of Default, be deemed to have been collected under Article
7 and held for the payment of all such Securities. In case such Event of
Default shall have been waived as provided in Section 7.04 or the Default cured
on or before the sixtieth day preceding the sinking fund payment date in any


 


24

















 


year, such
moneys shall thereafter be applied on the next succeeding sinking fund payment
date in accordance with this Section to the redemption of such Securities.


 


ARTICLE 4



COVENANTS


 


Section 4.01.          Payment
of Securities. The Company shall pay the Principal of and interest on the
Securities on the dates and in the manner provided in the Securities and this
Indenture. The interest on Securities with coupons attached (together with any
additional amounts payable pursuant to the terms of such Securities) shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature. The
interest on any temporary Unregistered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be paid, as to
the installments of interest evidenced by coupons attached thereto, if any,
only upon presentation and surrender thereof, and, as to the other installments
of interest, if any, only upon presentation of such Unregistered Securities for
notation thereon of the payment of such interest. The interest on Registered
Securities (together with any additional amounts payable pursuant to the terms
of such Securities) shall be payable only to the Holders thereof and at the
option of the Company may be paid by mailing checks for such interest payable
to or upon the written order of such Holders at their last addresses as they
appear on the Security Register of the Company.


 


Notwithstanding
any provisions of this Indenture and the Securities of any series to the
contrary, if the Company and a Holder of any Registered Security so agree or if
expressly provided pursuant to Section 2.03, payments of interest on, and any
portion of the Principal of, such Holder’s Registered Security (other than
interest payable at maturity or on any redemption or repayment date or the
final payment of Principal on such Security) shall be made by the Paying Agent,
upon receipt from the Company of immediately available funds by 11:00 a.m., New
York City time (or such other time as may be agreed to between the Company and
the Paying Agent), directly to the Holder of such Security (by Federal funds
wire transfer or otherwise) if the Holder has delivered written instructions to
the Trustee 15 days prior to such payment date requesting that such payment
will be so made and designating the bank account to which such payments shall
be so made and in the case of payments of Principal surrenders the same to the
Trustee in exchange for a Security or Securities aggregating the same principal
amount as the unredeemed principal amount of the Securities surrendered. The
Trustee shall be entitled to rely on the last instruction delivered by the
Holder pursuant to this Section 4.01 unless a new instruction is delivered 15
days prior to a payment date. The Company will indemnify and hold each of the
Trustee and any Paying Agent harmless against any loss, liability or expense
(including attorneys’ fees) resulting from any act or omission to act on the
part of the Company or any such Holder in connection with any such agreement or
from making any payment in accordance with any such agreement.


 


The Company
shall pay interest on overdue Principal, and interest on overdue installments
of interest, to the extent lawful, at the rate per annum specified in the
Securities.


 


Section 4.02.          Maintenance
of Office or Agency. The Company will maintain in the Borough of Manhattan,
The City of New York, an office or agency where Securities may be


 


25

















 


surrendered
for registration of transfer or exchange or for presentation for payment and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served; and the Guarantor will maintain in the
Borough of Manhattan, The City of New York, an office or agency where
Securities may be presented for payment under the Guarantees endorsed thereon
and where notices and demands to or upon the Guarantor in respect of the
Guarantee and this Indenture may be served. The Company and the Guarantor
hereby initially designate the Corporate Trust Office of the Trustee, located
in the Borough of Manhattan, The City of New York, as such office or agency of
the Company and the Guarantor. The Company and the Guarantor will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company or the Guarantor shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the address of the Trustee set forth in
Section 13.02.


 


The Company
and the Guarantor will maintain one or more agencies in a city or cities
located outside the United States (including any city in which such an agency
is required to be maintained under the rules of any stock exchange on which the
Securities of any series are listed) where the Unregistered Securities, if any,
of each series and coupons, if any, appertaining thereto may be presented for
payment or for payment under the Guarantees endorsed thereon, as the case may
be. No payment on any Unregistered Security or coupon or the Guarantee endorsed
thereon will be made upon presentation of the same at an agency of the Company
or the Guarantor within the United States nor will any payment be made by
transfer to an account in, or by mail to an address in, the United States
unless, pursuant to applicable United States laws and regulations then in
effect, such payment can be made without adverse tax consequences to the
Company or the Guarantor. Notwithstanding the foregoing, if full payment in
United States Dollars (“Dollars”) at each agency maintained by the Company or
the Guarantor outside the United States for payment on such Unregistered
Securities or coupons appertaining thereto or the Guarantees endorsed thereon,
as the case may be, is illegal or effectively precluded by exchange controls or
other similar restrictions, payments in Dollars of Unregistered Securities of
any series, coupons appertaining thereto or the Guarantee endorsed thereon
which are payable in Dollars may be made at an agency of the Company or the
Guarantor maintained in the Borough of Manhattan, The City of New York.


 


The Company
and the Guarantor may also from time to time designate one or more other
offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in
any manner relieve either the Company or the Guarantor of its obligation to
maintain an office or agency in the Borough of Manhattan, The City of New York
for such purposes. The Company or the Guarantor, as applicable, will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.


 


Section 4.03.          Certificate
to Trustee. The Company and the Guarantor each will furnish to the Trustee
annually, on or before a date not more than four months after the end of its
fiscal year (which, on the date hereof, in the case of each of the Company and
the Guarantor, is a calendar year), a brief certificate (which need not contain
the statements required by Section 13.04) from its principal executive,
financial or accounting officer as to his or her knowledge of


 


26

















 


the compliance
of the Company or the Guarantor, as the case may be, with all conditions and
covenants under this Indenture (such compliance to be determined without regard
to any period of grace or requirement of notice provided under this Indenture)
which certificate shall comply with the requirements of the Trust Indenture
Act.


 


Section 4.04.          Reports
by the Company and the Guarantor. The Company and the Guarantor each
covenant to file with the Trustee, within 15 days after the Company or the
Guarantor is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports which the
Company or the Guarantor may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act. Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the compliance of the Company and of the Guarantor with any
of the covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers’ Certificates).


 


Section 4.05.          Calculation
of Original Issue Discount. The Company shall file with the Trustee
promptly at the end of each calendar year a written notice specifying the
amount of original issue discount (including daily rates and accrual periods)
accrued on outstanding Securities as of the end of such year.


 


ARTICLE 5



SUCCESSOR CORPORATION


 


Section 5.01.          When the
Company May Merge, Etc.  The Company
shall not consolidate with, merge with or into, or sell, convey, transfer,
lease or otherwise dispose of all or substantially all of its property and
assets (as an entirety or substantially as an entirety in one transaction or a
series of related transactions) to, any Person (other than with or into the
Guarantor) or permit any Person to merge with or into the Company unless:


 


(a)           either (x) the Company
shall be the continuing Person or (y) the Person (if other than the Company)
formed by such consolidation or into which the Company is merged or that
acquired or leased such property and assets of the Company shall expressly
assume, by a supplemental indenture, executed and delivered to the Trustee, all
of the obligations of the Company on all of the Securities and under this
Indenture and the Company shall have delivered to the Trustee an Opinion of
Counsel stating that such consolidation, merger or transfer and such
supplemental indenture complies with this provision and that all conditions
precedent provided for herein relating to such transaction have been complied
with and that such supplemental indenture constitutes the legal, valid and
binding obligation of the Company or such successor enforceable against such
entity in accordance with its terms, subject to customary exceptions; and


 


(b)           the Company shall have
delivered to the Trustee an Officers’ Certificate to the effect that
immediately after giving effect to such transaction, no Default shall have
occurred and be continuing and an Opinion of Counsel as to the matters set
forth in Section 5.01(a)(y).


 


27

















 


Section 5.02.          Successor
Substituted. Upon any consolidation or merger, or any sale, conveyance,
transfer, lease or other disposition of all or substantially all of the
property and assets of the Company in accordance with Section 5.01 of this
Indenture, the successor Person formed by such consolidation or into which the
Company is merged or to which such sale, conveyance, transfer, lease or other
disposition is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein.


 


ARTICLE 6



THE GUARANTEE BY AND COVENANTS OF THE GUARANTOR


 


Section 6.01.          Guarantee.
The Guarantor by its execution of this Indenture hereby agrees with each Holder
of the Securities authenticated and delivered by the Trustee, and with the
Trustee, on behalf of each such Holder, to be unconditionally bound by the
terms and provisions of the Guarantee set forth below and authorizes the
Trustee to confirm such Guarantee to the Holder of each such Security by its
execution and delivery of each such Security, with such Guarantee endorsed
thereon, authenticated and delivered by the Trustee.


 


The Guarantee
to be endorsed on the Securities shall be in substantially the form set forth
below:


 


“SUBORDINATED
GUARANTEE


 


OF


 


CREDIT
SUISSE GROUP


 


For value received, Credit
Suisse Group, a company organized under the laws of Switzerland, having its
principal executive offices at Paradeplatz 8, P.O. Box 1, CH 8070, Zurich,
Switzerland (herein called the “Guarantor,” which term includes any Person as a
successor Guarantor under the Indenture referred to in the Security upon which
this Guarantee is endorsed), subject to the prior payment in full of all its
existing and future Guarantor Senior Indebtedness and to the subordination
provisions contained in Article 12 of the Indenture, hereby fully and
unconditionally guarantees to the Holder of the Security upon which this
Guarantee is endorsed and to the Trustee on behalf of each such Holder the due
and punctual payment of the Principal of and interest on such Security and the
due and punctual payment of the sinking fund or analogous payments referred to
therein, if any, when and as the same shall become due and payable, whether on
the stated maturity date, by declaration of acceleration, call for redemption
or otherwise, according to the terms thereof and of the Indenture referred to
therein. In case of the failure of Credit Suisse Group Finance (Luxembourg)
S.A., a corporation organized
under the laws of Luxembourg (herein called the “Borrower”, which term includes
any successor Person under such Indenture), to punctually make any such payment
of Principal or interest or any such sinking fund or analogous payment, the
Guarantor hereby agrees, subject to the subordination provisions contained in
Article 12 of the Indenture, to cause any such payment to be made punctually
when and as the same shall become due and payable, whether on the stated


 


28

















 


maturity date or by
declaration of acceleration, call for redemption or otherwise, and as if such
payment were made by the Borrower.


 


The indebtedness evidenced by
this Guarantee is, to the extent provided in the Indenture, subordinate and
junior in right of payment to the prior payment in full of all Guarantor Senior
Indebtedness, and this Guarantee is issued subject to the subordination
provisions of Article 12 of the Indenture with respect thereto. The Holder of
the Security upon which this Guarantee is endorsed, by accepting the same, (i)
agrees to and shall be bound by, such provisions, (ii) authorizes and directs
the Trustee on his, her or its behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination so provided and
(iii) appoints the Trustee his, her or its attorney-in-fact for any and all
such purposes. The Holder hereof, by his, her or its acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Guarantor Senior Indebtedness,
whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.


 


Subject to the subordination
provisions of Article 12 of the Indenture, the Guarantor hereby agrees that its
obligations hereunder shall be as if it were the principal debtor and not
merely surety, and shall be absolute and unconditional, irrespective of, and
shall be unaffected by, any invalidity, irregularity or unenforceability of
such Security or such Indenture, any failure to enforce the provisions of such
Security or such Indenture, or any waiver, modification or indulgence granted
to the Borrower with respect thereto, by the Holder of such Security or the
Trustee or any other circumstance which may otherwise constitute a legal or equitable
discharge of a surety or Guarantor; provided, however, that, notwithstanding
the foregoing, no such waiver, modification or indulgence shall, without the
consent of the Guarantor, increase the Principal amount of such Security, or
increase the interest rate thereon, or alter the stated maturity date thereof,
or increase the principal amount of any Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the maturity
thereof pursuant to Article 7 of such Indenture. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger or bankruptcy of the Borrower, any right to require a
proceeding first against the Borrower, protest or notice with respect to such
Security or the indebtedness evidenced thereby or with respect to any sinking
fund or analogous payment required under such Security and all demands
whatsoever, and covenants that this Guarantee will not be discharged except by
payment in full of the Principal of and interest on such Security. This
Guarantee is a guarantee of payment and not of collection.


 


The Guarantor shall be
subrogated to all rights of the Holder of such Security and the Trustee against
the Borrower in respect of any amounts paid to such Holder by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not be entitled to enforce, or to receive any payments arising
out of or based upon such right of subrogation until the Principal of and
interest on all Securities of the same series issued under such Indenture shall
have been paid in full.


 


No reference herein to such
Indenture and no provision of this Guarantee or of such Indenture shall alter
or impair the guarantees of the Guarantor, which, subject to the subordination
provisions of Article 12 of the Indenture, are absolute and unconditional, of
the due and punctual


 


29

















 


payment of the Principal of
and interest on, and any sinking fund or analogous payments with respect to,
the Security upon which this Guarantee is endorsed.


 


This Guarantee shall not be
valid or obligatory for any purpose until the certificate of authentication of
such Security shall have been manually executed by or on behalf of the Trustee
under such Indenture.


 


All terms used in this
Guarantee which are defined in such Indenture shall have the meanings assigned
to them in such Indenture.


 


This Guarantee shall be
governed by and construed in accordance with the laws of the State of New York.


 


Executed and dated the date
on the face hereof.


 


 


	
   

  	
  CREDIT
  SUISSE GROUP,

  as the Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title:”

  



 


 


Section 6.02.          When the
Guarantor May Merge, Etc.  The
Guarantor shall not consolidate with, merge with or into, or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of its
property and assets (as an entirety or substantially as an entirety in one
transaction or a series of related transactions) to, any Person (other than
with or into the Company) or permit any Person to merge with or into the
Guarantor unless:


 


(a)           either (x) the
Guarantor shall be the continuing Person or (y) the Person (if other than the
Guarantor) formed by such consolidation or into which the Guarantor is merged
or that acquired or leased such property and assets of the Guarantor shall
expressly assume, by a supplemental indenture, executed and delivered to the
Company and to the Trustee, all of the obligations of the Guarantor on the
Guarantee and under this Indenture and the Guarantor shall have delivered to
the Trustee an Opinion of Counsel stating that such consolidation, merger or
transfer and such supplemental indenture complies with this provision and that
all conditions


 


30

















 


precedent
provided for herein relating to such transaction have been complied with and
that such supplemental indenture constitutes the legal, valid and binding
obligation of the Guarantor or such successor enforceable against such entity
in accordance with its terms, subject to customary exceptions; and


 


(b)           the Guarantor shall
have delivered to the Trustee an Officers’ Certificate to the effect that
immediately after giving effect to such transaction, no Default shall have
occurred and be continuing and an Opinion of Counsel as to the matters set
forth in Section 6.02(a)(y).


 


Section 6.03.          Successor
Substituted. Upon any consolidation or merger, or any sale, conveyance,
transfer, lease or other disposition of all or substantially all of the
property and assets of the Guarantor in accordance with Section 6.02 of this
Indenture, the successor Person formed by such consolidation or into which the
Guarantor is merged or to which such sale, conveyance, transfer, lease or other
disposition is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Guarantor under this Indenture with the same
effect as if such successor Person had been named as the Guarantor herein.


 


ARTICLE 7



DEFAULT AND REMEDIES


 


Section 7.01.          Events
of Default. An “Event of Default” shall mean any one of the following
events with respect to the Securities of any series:


 


(a)           default in the payment
of all or any part of the Principal of any Security of such series when the
same becomes due and payable at maturity, upon acceleration, redemption or
mandatory repurchase, including as a sinking fund installment, or otherwise;


 


(b)           default in the payment
of any interest on any Security of such series when the same becomes due and
payable, and such default continues for a period of 30 days;


 


(c)           a default or breach of
any other covenant or agreement of the Company or the Guarantor in this
Indenture with respect to any Security of such series or in the Securities of
such series and such default or breach continues for a period of 60 days after
written notice thereof has been given to the Company and the Guarantor by the
Trustee or to the Company, the Guarantor and the Trustee by the Holders of 25%
or more in aggregate principal amount of the Securities of all series affected
thereby;


 


(d)           commencement of an
involuntary case or other proceeding against the Company, with respect to the
Company or its debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Company or for any
substantial part of the property and assets of the Company, and such
involuntary case or other proceeding shall remain undismissed and unstayed for
a period of 60 days; or an order for relief shall be entered against the
Company, under any bankruptcy, insolvency or other similar law now or hereafter
in effect;


 


(e)           commencement by the
Company of a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or the Company’s consent


 


31














 


to the entry
of an order for relief in an involuntary case under any such law, or its
consent to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the Company
or for all or substantially all of the property and assets of the Company, or
any general assignment by the Company for the benefit of creditors;


 


(f)            commencement of an
involuntary case or other proceeding against the Guarantor, with respect to the
Guarantor or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Guarantor or for any
substantial part of the property and assets of the Guarantor, and such
involuntary case or other proceeding shall remain undismissed and unstayed for
a period of 60 days, except that the issuance of a writ of payment under the
Swiss debt enforcement and bankruptcy laws shall not constitute such involuntary
case or proceeding for the purpose of this clause; or an order for relief shall
be entered against the Guarantor, under any bankruptcy, insolvency or other
similar law now or hereafter in effect;


 


(g)           commencement by the
Guarantor of a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or the Guarantor’s consent to the
entry of an order for relief in an involuntary case under any such law, or its
consent to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the Company
or for all or substantially all of the property and assets of the Company, or
any general assignment by the Guarantor for the benefit of creditors; or


 


(h)           any other Event of
Default established pursuant to Section 2.03 with respect to the Securities of
such series occurs.


 


Section 7.02.          Acceleration.
(a)  If an Event of Default described in
Section 7.01(a) or (b) with respect to the Securities of any series then
outstanding occurs and is continuing, then, and in each and every such case,
except for any series of Securities the Principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of any such affected series
then outstanding hereunder (each such series treated as a separate class) by
notice in writing to the Company and to the Guarantor (and to the Trustee if
given by Securityholders), may declare the entire principal amount (or, if the
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series
established pursuant to Section 2.03) of all Securities of such affected
series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable.


 


(b)           If an Event of Default
described in Section 7.01(c) or (h) with respect to the Securities of one or
more but not all series then outstanding, occurs and is continuing, then, and
in each and every such case, except for any series of Securities the Principal
of which shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount (or, if the
Securities of any such series are Original Issue Discount Securities, the
amount thereof that may be accelerated under this Section) of the Securities of
all such affected series then outstanding hereunder (treated as a single class)
by notice in writing to the Company and to the Guarantor (and to the Trustee if
given by Securityholders), may declare


 


32

















 


the entire
principal amount (or, if the Securities of any such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of such series established pursuant to Section 2.03) of all
Securities of all such affected series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable.


 


(c)           If an Event of Default
described in Section 7.01(d), (e), (f) or (g) occurs and is continuing, then
the principal amount (or, if any Securities are Original Issue Discount
Securities, such portion of the Principal as may be specified in the terms
thereof established pursuant to Section 2.03) of all the Securities then
outstanding and interest accrued thereon, if any, shall be and become
immediately due and payable, without any notice or other action by any Holder
or the Trustee, to the full extent permitted by applicable law.


 


(d)           If an Event of Default
described in Section 7.01(c) or (h) with respect to the Securities of all
series then outstanding, occurs and is continuing, then, and in each and every
such case, either the Trustee or the Holders of not less than 25% in aggregate
principal amount (or, if the Securities of any outstanding series are Original
Issue Discount Securities, the amount thereof accelerable under this Section)
of all Securities of any series then outstanding hereunder except for any
series of Securities the Principal of which shall have already become due and
payable (treated as a single class) by notice in writing to the Company and to
the Guarantor (and to the Trustee if given by Securityholders), may declare the
entire principal amount (or, if the Securities of any such series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series established pursuant to Section 2.03) of
all Securities of any series then outstanding, and the interest accrued
thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.


 


The foregoing
provisions, however, are subject to the condition that if, at any time after
the principal amount (or, if the Securities are Original Issue Discount
Securities, such portion of the Principal as may be specified in the terms
thereof established pursuant to Section 2.03) of the Securities of any series
(or of all the Securities, as the case may be) shall have been so declared due
and payable, and before any judgment or decree for the payment of the moneys
due shall have been obtained or entered as hereinafter provided, the Company or
the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of each such
series (or of all the Securities, as the case may be) and the Principal of any
and all Securities of each such series (or of all the Securities, as the case
may be) which shall have become due otherwise than by acceleration (with
interest upon such Principal and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, at
the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of each such
series to the date of such payment or deposit) and such amount as shall be
sufficient to cover all amounts owing to the Trustee under Section 8.07, and if
any and all Events of Default under this Indenture, other than the non-payment
of the Principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein, then
and in every such case the Holders of a majority in aggregate principal amount
of all the then outstanding Securities of all such series that have been
accelerated (voting as a single class), by written notice to the Company, to
the Guarantor and to the Trustee, may waive all defaults


 


33

















 


with respect
to all such series (or with respect to all the Securities, as the case may be)
and rescind and annul such declaration and its consequences, but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.


 


For all
purposes under this Indenture, if a portion of the Principal of any Original
Issue Discount Securities shall have been accelerated and declared due and
payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the Principal thereof as
shall be due and payable as a result of such acceleration, and payment of such
portion of the Principal thereof as shall be due and payable as a result of
such acceleration, together with interest, if any, thereon and all other
amounts owing thereunder, shall constitute payment in full of such Original
Issue Discount Securities.


 


Section 7.03.          Other
Remedies. If a payment default or an Event of Default with respect to the
Securities of any series occurs and is continuing, the Trustee may pursue, in
its own name or as trustee of an express trust, any available remedy by
proceeding at law or in equity to collect the payment of Principal of and
interest on the Securities of such series or to enforce the performance of any
provision of the Securities of such series or this Indenture.


 


The Trustee
may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding.


 


Section 7.04.          Waiver
of Past Defaults. Subject to Sections 7.02, 7.07 and 10.02, the Holders of
at least a majority in principal amount (or, if the Securities are Original
Issue Discount Securities, such portion of the Principal as is then accelerable
under Section 7.02) of the outstanding Securities of all series affected
(voting as a single class), by notice to the Trustee, may waive an existing
Default or Event of Default with respect to the Securities of such series and
its consequences, except a Default in the payment of Principal of or interest
on any Security as specified in Section 7.01(a) or (b) or in respect of a
covenant or provision of this Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Security affected. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
with respect to the Securities of such series arising therefrom shall be deemed
to have been cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereto.


 


Section 7.05.          Control
by Majority. Subject to Sections 8.01 and 8.02(e), the Holders of at least
a majority in aggregate principal amount (or, if any Securities are Original
Issue Discount Securities, such portion of the Principal as is then accelerable
under Section 7.02) of the outstanding Securities of all series affected
(voting as a single class) may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities of such series
by this Indenture; provided, that the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that may involve the
Trustee in personal liability or that the Trustee determines in good faith may
be unduly prejudicial to the rights of Holders not joining in the giving of
such direction; and provided  further, that the Trustee may take
any other action it


 


34

















 


deems proper
that is not inconsistent with any directions received from Holders of
Securities pursuant to this Section 7.05.


 


Section 7.06.          Limitation
on Suits. No Holder of any Security of any series may institute any
proceeding, judicial or otherwise, with respect to this Indenture or the
Securities of such series, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:


 


(a)           such Holder has
previously given to the Trustee written notice of a continuing Event of Default
with respect to the Securities of such series;


 


(b)           the Holders of at least
25% in aggregate principal amount of outstanding Securities of all such series
affected shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;


 


(c)           such Holder or Holders
have offered to the Trustee indemnity reasonably satisfactory to the Trustee
against any costs, liabilities or expenses to be incurred in compliance with
such request;


 


(d)           the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity has failed to
institute any such proceeding; and


 


(e)           during such 60-day
period, the Holders of a majority in aggregate principal amount of the
outstanding Securities of all such affected series have not given the Trustee a
direction that is inconsistent with such written request.


 


A Holder may
not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over such other Holder.


 


Section 7.07.          Rights
of Holder to Receive Payment. Notwithstanding any other provision of this
Indenture, the right of any Holder of a Security to receive payment of
Principal of or interest, if any, on such Holder’s Security on or after the
respective due dates expressed on such Security, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.


 


Section 7.08.          Collection
Suit by Trustee. If an Event of Default with respect to the Securities of
any series in payment of Principal or interest specified in Section 7.01(a) or
(b) occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company and the Guarantor for
the whole amount (or such portion thereof as specified in the terms established
pursuant to Section 2.03 of Original Issue Discount Securities) of Principal
of, and accrued interest remaining unpaid on, together with interest on overdue
Principal of, and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest on, the Securities of such series,
in each case at the rate or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, and such further amount as
shall be sufficient to cover all amounts owing the Trustee under Section 8.07.


 


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Section 7.09.          Trustee
May File Proofs of Claim. The Trustee may file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for amounts due the Trustee under
Section 8.07) and the Holders allowed in any judicial proceedings relative to
the Company (or any other obligor on the Securities), the Guarantor, the
creditors of the Company or the Guarantor, or the property of the Company or
the Guarantor and shall be entitled and empowered to collect and receive any
moneys, securities or other property payable or deliverable upon conversion or
exchange of the Securities or upon any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it under Section 8.07. Nothing herein
contained shall be deemed to empower the Trustee to authorize or consent to, or
accept or adopt on behalf of any Holder, any plan of reorganization,
arrangement, adjustment or composition affecting the Securities, the Guarantee
or the rights of any Holder under the Securities or the Guarantee, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.


 


Section 7.10.          Application
of Proceeds. Any moneys collected by the Trustee pursuant to this Article
in respect of the Securities of any series shall be applied in the following
order at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of Principal or interest, upon
presentation of the several Securities and coupons appertaining to such Securities
in respect of which moneys have been collected and noting thereon the payment,
or issuing Securities of such series and tenor in reduced principal amounts in
exchange for the presented Securities of such series and tenor if only
partially paid, or upon surrender thereof if fully paid:


 


FIRST:  To the payment of all amounts due the Trustee
under Section 8.07 applicable to the Securities of such series in respect of
which moneys have been collected;


 


SECOND:  In case the Principal of the Securities of
such series in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such interest
has been collected by the Trustee) upon the overdue installments of interest at
the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such payments
to be made ratably to the persons entitled thereto, without discrimination or
preference;


 


THIRD:  In case the Principal of the Securities of
such series in respect of which moneys have been collected shall have become
and shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for Principal and
interest, with interest upon the overdue Principal, and (to the extent that
such interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series; and in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the


 


36

















 


Securities of
such series, then to the payment of such Principal and interest or Yield to
Maturity, without preference or priority of Principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over Principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to the
aggregate of such Principal and accrued and unpaid interest or Yield to
Maturity; and


 


FOURTH:  To the payment of the remainder, if any, to
the Company, or to the extent the Trustee collects any amount pursuant to the
Guarantee, the Guarantor, or any other person lawfully entitled thereto.


 


Section 7.11.          Restoration
of Rights and Remedies. If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then, and in every such case,
subject to any determination in such proceeding, the Company, the Guarantor,
the Trustee and the Holders shall be restored to their former positions
hereunder and thereafter all rights and remedies of the Company, the Guarantor,
Trustee and the Holders shall continue as though no such proceeding had been
instituted.


 


Section 7.12.          Undertaking
for Costs. In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, in either case in respect to the Securities of any
series, a court may require any party litigant in such suit (other than the
Trustee) to file an undertaking to pay the costs of the suit, and the court may
assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant (other than the Trustee) in the suit having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 7.12 does not apply to a suit by a Holder pursuant to
Section 7.07 or a suit by Holders of more than 10% in principal amount of the
outstanding Securities of such series.


 


Section 7.13.          Rights
and Remedies Cumulative. Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or wrongfully taken
Securities in Section 2.08, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.


 


Section 7.14.          Delay or
Omission Not Waiver. No delay or omission of the Trustee or of any Holder
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article 7 or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.


 


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ARTICLE 8



TRUSTEE


 


Section 8.01.          General.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act and as set forth herein. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, unless
it receives indemnity satisfactory to it against any loss, liability or expense.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Article 8. The
Trustee, prior to the occurrence of an Event of Default of which a Responsible
Officer of the Trustee has actual knowledge and after the curing of all Events
of Default which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the Trustee.
If an Event of Default to the actual knowledge of a Responsible Officer of the
Trustee has occurred (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.


 


Section 8.02.          Certain
Rights of Trustee. Subject to Trust Indenture Act Sections 315(a) through
(d):


 


(a)           the Trustee may
conclusively rely and shall be fully protected in acting or refraining from
acting upon any Officers’ Certificate, Opinion of Counsel (or both),
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed or presented by the proper person or persons. The Trustee need
not investigate any fact or matter stated in the document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit;


 


(b)           before the Trustee acts
or refrains from acting, it may require an Officers’ Certificate and/or an
Opinion of Counsel, which shall conform to Section 13.04. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such certificate or opinion. Subject to Sections 8.01 and 8.02, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in
the absence of negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers’ Certificate delivered to
the Trustee, and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted to be taken by it under the provisions of this
Indenture upon the faith thereof;


 


38

















 


(c)           the Trustee may act
through its attorneys, Agents, custodians and nominees not regularly in its
employ and shall not be responsible for the misconduct or negligence of any
Agent, attorney, custodian and nominee appointed with due care;


 


(d)           any request, direction,
order or demand of the Company or the Guarantor mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in
respect thereof be herein specifically prescribed); and any Board Resolution
may be evidenced to the Trustee by a copy thereof certified by the secretary or
an assistant secretary of the Company or the Guarantor, as the case may be;


 


(e)           the Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of any of the Holders, unless
such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that might be
incurred by it in compliance with such request, order or direction;


 


(f)            the Trustee shall not
be liable for any action it takes or omits to take in good faith that it
believes to be authorized or within its rights or powers or for any action it
takes or omits to take in accordance with the direction of the Holders in
accordance with Section 7.05 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture;


 


(g)           the Trustee may consult
with counsel of its selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted to be taken by it hereunder in good faith
and in reliance thereon;


 


(h)           prior to the occurrence
of an Event of Default hereunder and after the curing or waiving of all Events
of Default, the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, Officers’ Certificate,
Opinion of Counsel, Board Resolution, statement, instrument, opinion, report,
notice, request, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or document unless requested in writing so to
do by the Holders of not less than a majority in aggregate principal amount of
the Securities of all series affected then outstanding; provided that,
if the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
indemnity satisfactory to it against such expenses or liabilities as a
condition to proceeding; and


 


(i)            if the Trustee is
acting as Paying Agent or Transfer Agent and Registrar herein the rights and
protections afforded the Trustee under this Article 8 shall also be afforded to
such Paying Agent or Transfer Agent and Registrar.


 


Section 8.03.          Individual
Rights of Trustee. The Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with the
Company, the Guarantor or their respective affiliates with the same rights it
would have if it


 


39

















 


were not the
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Trust Indenture Act Sections 310(b) and 311. For purposes of Trust
Indenture Act Section 311(b)(4) and (6), the following terms shall mean:


 


(a)           “cash transaction”
means any transaction in which full payment for goods or securities sold is
made within seven days after delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or bankers and payable upon demand;
and


 


(b)           “self-liquidating paper”
means any draft, bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company or the Guarantor for the purpose
of financing the purchase, processing, manufacturing, shipment, storage or sale
of goods, wares or merchandise and which is secured by documents evidencing
title to, possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company or the Guarantor arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.


 


[For purposes
of clause (i) of the first proviso to Trust Indenture Act Section 310(b), the
following indentures are hereby excluded: 
the subordinated indenture dated               
between Credit Suisse Group, as the company, and JPMorgan Chase Bank, N.A. as
the trustee, the subordinated indenture dated               
among Credit Suisse Group Finance (Delaware) LLC I, as the company, Credit
Suisse Group, as the guarantor, and JPMorgan Chase Bank, N.A., as the trustee,
and the subordinated indenture dated               
among Credit Suisse Group Finance (Guernsey) Limited, as the company, Credit
Suisse Group, as the guarantor, and JPMorgan Chase Bank, N.A., as the trustee.]


 


Section 8.04.          Trustee’s
Disclaimer. The recitals contained herein and in the Securities (except the
Trustee’s certificate of authentication) shall be taken as statements of the
Company or the Guarantor and not of the Trustee and the Trustee assumes no
responsibility for the correctness of the same. Neither the Trustee nor any of
its agents (i) makes any representation as to the validity or adequacy of this
Indenture, the Securities or the Guarantees and (ii) shall be accountable for
the Company’s or the Guarantor’s use or application of the proceeds from the
Securities or for monies paid over to the Company or the Guarantor pursuant to
the Indenture.


 


Section 8.05.          Notice
of Default. If any Default with respect to the Securities of any series
occurs and is continuing and if such Default is known to the actual knowledge
of a Responsible Officer of the Trustee, the Trustee shall give to each Holder
of Securities of such series notice of such Default within 90 days after it
occurs (i) if any Unregistered Securities of such series are then outstanding,
to the Holders thereof, by publication at least once in an Authorized Newspaper
in the Borough of Manhattan, The City of New York and at least once in an
Authorized Newspaper in London and (ii) to all Holders of Securities of such
series in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, unless such Default shall have been cured or waived before the
mailing or publication of such notice; provided, however, that,
except in the case of a Default in the payment of the Principal of or interest
on any Security, the Trustee shall be fully protected in withholding such
notice if the


 


40

















 


Trustee in
good faith determines that the withholding of such notice is in the interests
of the Holders.


 


Section 8.06.          Reports
by Trustee to Holders. Within 60 days after each May 1, beginning with May
1, 20    , the Trustee shall mail to each Holder as and to
the extent provided in Trust Indenture Act Section 313(c) a brief report dated
as of such May 1, if required by Trust Indenture Act Section 313(a).


 


Section 8.07.          Compensation
and Indemnity. The Company, or failing which, the Guarantor, shall pay to
the Trustee such compensation as shall be agreed upon in writing from time to
time for its services. The compensation of the Trustee shall not be limited by
any law on compensation of a Trustee of an express trust. The Company, or
failing which, the Guarantor, shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses, disbursements and advances incurred or made
by the Trustee. Such expenses shall include the reasonable compensation and
expenses of the Trustee’s agents, counsel and other persons not regularly in
its employ.


 


The Company,
or failing which, the Guarantor, shall indemnify the Trustee and its officers,
directors, employees and Agents for, and hold it and them harmless against, any
and all loss, damage, claim or liability or expense (including legal fees and
expenses) including taxes (other than taxes based on the income of the Trustee)
incurred by it or them without negligence or bad faith on its part arising out
of or in connection with the acceptance or administration of this Indenture and
the Securities or the issuance of the Securities or a series thereof or the
trusts hereunder and the performance of its duties under this Indenture and the
Securities, including the costs and expenses of defending itself against or
investigating any claim or liability and of complying with any process served
upon it or any of its officers in connection with the exercise or performance
of any of its powers or duties under this Indenture and the Securities.


 


To secure the
Company’s and the Guarantor’s payment obligations in this Section 8.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or property
held in trust to pay Principal of, and interest on particular Securities.


 


The
obligations of the Company and the Guarantor under this Section to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture or the rejection or
termination of this Indenture under bankruptcy, insolvency or similar law or
the earlier resignation or removal of the Trustee. Such additional indebtedness
shall be a senior claim to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
benefit of the Holders of particular Securities or coupons, and the Securities
are hereby subordinated to such senior claim. If the Trustee renders services
and incurs expenses following an Event of Default under Section 7.01(d), (e),
(f) or (g) hereof, the parties hereto and the Holders by their acceptance of
the Securities hereby agree that such expenses are intended to constitute
expenses of administration under any bankruptcy, insolvency or similar law.


 


41

















 


Section 8.08.          Replacement
of Trustee. A resignation or removal of the Trustee as Trustee with respect
to the Securities of any series and appointment of a successor Trustee as
Trustee with respect to the Securities of any series shall become effective
only upon the successor Trustee’s acceptance of appointment as provided in this
Section 8.08.


 


The Trustee
may resign as Trustee with respect to the Securities of any series at any time
by so notifying the Company and the Guarantor in writing. The Holders of a
majority in principal amount of the outstanding Securities of any series may
remove the Trustee as Trustee with respect to the Securities of such series by
so notifying the Trustee in writing and may appoint a successor Trustee with
respect thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if: (i) the
Trustee is no longer eligible under Section 8.10 of this Indenture; (ii) the
Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public
officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.


 


If the Trustee
resigns or is removed as Trustee with respect to the Securities of any series,
or if a vacancy exists in the office of Trustee with respect to the Securities
of any series for any reason, the Company shall promptly appoint a successor
Trustee with respect thereto. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the outstanding
Securities of such series may appoint a successor Trustee in respect of such
Securities to replace the successor Trustee appointed by the Company. If the
successor Trustee with respect to the Securities of any series does not deliver
its written acceptance required by the next succeeding paragraph of this
Section 8.08 within 30 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holders of a majority in principal
amount of the outstanding Securities of such series may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
thereto.


 


A successor
Trustee with respect to the Securities of any series shall deliver a written
acceptance of its appointment to the retiring Trustee, to the Company and to
the Guarantor. Immediately after the delivery of such written acceptance,
subject to the lien provided for in Section 8.07 and subject to the payment of
any and all amounts then due and owing to the retiring Trustee, (i) the
retiring Trustee shall transfer all property held by it as Trustee in respect
of the Securities of such series to the successor Trustee, (ii) the resignation
or removal of the retiring Trustee in respect of the Securities of such series
shall become effective and (iii) the successor Trustee shall have all the
rights, powers and duties of the Trustee in respect of the Securities of such
series under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities of such series.


 


Upon request
of any such successor Trustee, the Company and the Guarantor shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.


 


The Company
shall give notice of any resignation and any removal of the Trustee with
respect to the Securities of any series and each appointment of a successor
Trustee in respect of the Securities of such series to all Holders of
Securities of such series. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office. Notwithstanding
replacement of the Trustee with respect to the Securities of any series
pursuant


 


42

















 


to this
Section 8.08, the Company’s and the Guarantor’s obligations under Section 8.07
shall continue for the benefit of the retiring Trustee.


 


Section 8.09.          Successor
Trustee by Merger, Etc.  If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein; provided that such successor Trustee shall be otherwise
qualified and eligible under this Article 8.


 


Section 8.10.          Eligibility.
This Indenture shall always have a Trustee who satisfies the requirements of
Trust Indenture Act Section 310(a). The Trustee shall have a combined capital
and surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition.


 


Section 8.11.          Money
Held in Trust. The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law and except for money held in trust under Article 9
of this Indenture.


 


ARTICLE 9



DISCHARGE OF INDENTURE


 


Section 9.01.          Defeasance
within One Year of Payment. Except as otherwise provided in this Section
9.01, the Company or the Guarantor may terminate the obligations of the Company
and the Guarantor under the Securities of any series, the Guarantee and this
Indenture with respect to Securities of such series if:


 


(a)           all Securities of such
series previously authenticated and delivered (other than destroyed, lost or
wrongfully taken Securities of such series that have been replaced or paid or
Securities of such series that are paid pursuant to Section 4.01 or Securities
of such series for whose payment money or securities have theretofore been held
in trust and thereafter repaid to the Company or the Guarantor, as provided in
Section 9.05) have been delivered to the Trustee for cancellation and the
Company (or the Guarantor pursuant to the Guarantee) has paid all sums payable
by it hereunder; or


 


(b)           (i) the Securities of such series
mature within one year or all of them are to be called for redemption within
one year under arrangements satisfactory to the Trustee for giving the notice
of redemption, (ii) the Company or the Guarantor irrevocably deposits in trust
with the Trustee, as trust funds solely for the benefit of the Holders of such
Securities for that purpose, money or U.S. Government Obligations or a
combination thereof sufficient (unless such funds consist solely of money, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee), without
consideration of any reinvestment, to pay the Principal of and interest on the
Securities of such series to maturity or redemption, as the case may be, and to
pay all other sums payable by it hereunder, and (iii) the Company delivers to
the Trustee an Officers’ Certificate and an Opinion


 


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of Counsel, in
each case stating that all conditions precedent provided for herein relating to
the satisfaction and discharge of this Indenture with respect to the Securities
of such series have been complied with.


 


With respect
to the foregoing clause (a) only the Company’s and the Guarantor’s obligations
under Section 8.07 in respect of the Securities of such series shall survive. With
respect to the foregoing clause (b), only the obligations of the Company and
the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05,
as applicable, in respect of the Securities of such series and the Guarantee
thereof shall survive until such Securities of such series are no longer
outstanding. Thereafter, only the obligations of the Company and the Guarantor
in Sections 8.07, 9.04 and 9.05, as applicable, in respect of the Securities of
such series and the Guarantee thereof shall survive. After any such irrevocable
deposit, the Trustee upon written request shall acknowledge in writing the discharge
of the obligations of the Company and the Guarantor under the Securities of
such series, the Guarantee thereof and this Indenture with respect to the
Securities of such series except for those surviving obligations specified
above.


 


Section 9.02.          Defeasance.
Except as provided below, the Company will be deemed to have paid and the
Company and the Guarantor will be discharged from any and all obligations in
respect of the Securities of any series and the Guarantee thereof, and the
provisions of this Indenture will no longer be in effect with respect to the
Securities of such series and the Guarantee thereof (and the Trustee, at the
expense of the Company and the Guarantor, shall execute proper instruments
acknowledging the same); provided that the following conditions shall
have been satisfied:


 


(a)           the Company or the
Guarantor has irrevocably deposited in trust with the Trustee as trust funds
solely for the benefit of the Holders of the Securities of such series, for
payment of the Principal of and interest on the Securities of such series,
money or U.S. Government Obligations or a combination thereof sufficient
(unless such funds consist solely of money, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee) without consideration of any
reinvestment and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, to pay and
discharge the Principal of and accrued interest on the outstanding Securities
of such series to maturity or earlier redemption (irrevocably provided for
under arrangements satisfactory to the Trustee), as the case may be;


 


(b)           such deposit will not
result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the Company or
the Guarantor, as the case may be, is a party or by which it is bound;


 


(c)           no Default with respect
to the Securities of such series shall have occurred and be continuing on the
date of such deposit;


 


(d)           the Company shall have
delivered to the Trustee either (x) a ruling directed to the Trustee received
from the Internal Revenue Service to the effect that the Holders of the Securities
of such series will not recognize income, gain or loss for federal income tax
purposes as a result of such discharge under this Section 9.02 and will be
subject to federal income tax on


 


44

















 


the same amount
and in the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred or (y) an Opinion of Counsel to
the same effect as the ruling described in clause (x) above; and


 


(e)           the Company has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in
each case stating that all conditions precedent provided for herein relating to
the defeasance contemplated by this Section 9.02 of the Securities of such
series have been complied with.


 


The
obligations of the Company and the Guarantor in Sections 2.02 through 2.12,
4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities
of such series and the Guarantee thereof shall survive until such Securities
are no longer outstanding. Thereafter, only the obligations of the Company and
the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.


 


Section 9.03.          Covenant
Defeasance. The Company and the Guarantor may omit to comply with any
specific covenant relating to such series provided for in a Board Resolution or
supplemental indenture pursuant to Section 2.03 which may by its terms be
defeased pursuant to this Section 9.03, and such omission shall be deemed not
to be an Event of Default under Section 7.01(c) or (h), with respect to the
outstanding Securities of a series if:


 


(a)           the Company or the
Guarantor has irrevocably deposited in trust with the Trustee as trust funds
solely for the benefit of the Holders of the Securities of such series, for
payment of the Principal of and interest, if any, on the Securities of such
series, money or U.S. Government Obligations or a combination thereof in an
amount sufficient (unless such funds consist solely of money, in the opinion of
a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without consideration
of any reinvestment and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee, to pay
and discharge the Principal of and interest on the outstanding Securities of
such series to maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;


 


(b)           such deposit will not
result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the Company or
the Guarantor, as the case may be, is a party or by which it is bound;


 


(c)           no Default with respect
to the Securities of such series shall have occurred and be continuing on the
date of such deposit;


 


(d)           the Company has
delivered to the Trustee an Opinion of Counsel to the effect that such Holders
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit and covenant defeasance and will be subject to federal
income tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not occurred; and


 


(e)           the Company has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in
each case stating that all conditions precedent provided for herein relating


 


45

















 


to the
covenant defeasance contemplated by this Section 9.03 of the Securities of such
series have been complied with.


 


Section 9.04.          Application
of Trust Money. Subject to Section 9.05, the Trustee or Paying Agent shall
hold in trust money or U.S. Government Obligations deposited with it pursuant
to Section 9.01, 9.02 or 9.03, as the case may be, in respect of the Securities
of any series and shall apply the deposited money and the proceeds from
deposited U.S. Government Obligations in accordance with the Securities of such
series and this Indenture to the payment of Principal of and interest on the
Securities of such series; but such money need not be segregated from other
funds except to the extent required by law. The Company, and failing which, the
Guarantor, agrees to pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 9.01, 9.02 or 9.03 or the Principal or interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of outstanding Securities.


 


Section 9.05.          Repayment
to Company and Guarantor. Subject to Sections 8.07, 9.01, 9.02 and 9.03,
the Trustee and the Paying Agent shall promptly pay to the Company or to the
Guarantor, as the case may be, upon request set forth in an Officers’
Certificate any money originally paid by a party making such request held by
them at any time and not required to make payments hereunder and thereupon
shall be relieved from all liability with respect to such money. The Trustee
and the Paying Agent shall pay to the Company or to the Guarantor, as the case
may be, upon written request any money originally paid by a party making such
request held by them and required to make payments hereunder that remains
unclaimed for two years; provided that the Trustee or such Paying Agent
before being required to make any payment may cause to be published at the
expense of the Company or to the Guarantor, as the case may be, once in an
Authorized Newspaper in The City of New York and once in an Authorized
Newspaper in London or mail to each Holder entitled to such money at such
Holder’s address (as set forth in the Security Register) notice that such money
remains unclaimed and that after a date specified therein (which shall be at
least 30 days from the date of such publication or mailing) any unclaimed
balance of such money then remaining will be repaid to the Company or to the
Guarantor, as the case may be. After payment to the Company or to the
Guarantor, Holders entitled to such money must look to the Company or to the
Guarantor, as the case may be, for payment as general creditors unless an
applicable law designates another Person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.


 


ARTICLE 10



AMENDMENTS, SUPPLEMENTS AND WAIVERS


 


Section 10.01.        Without
Consent of Holders. The Company, the Guarantor and the Trustee may amend or
supplement this Indenture, the Guarantee or the Securities of any series
without notice to or the consent of any Holder:


 


(a)           to cure any ambiguity,
defect or inconsistency in this Indenture; provided that such amendments
or supplements shall not materially and adversely affect the interests of the
Holders;


 


46

















 


(b)           to comply with Section
5.01, 5.02, 6.01 and 6.02;


 


(c)           to comply with any
requirements of the Commission in connection with the qualification of this
Indenture under the Trust Indenture Act;


 


(d)           to evidence and provide
for the acceptance of appointment hereunder with respect to the Securities of
any or all series by a successor Trustee;


 


(e)           to establish the form
or forms or terms of Securities of any series or of the coupons appertaining to
such Securities as permitted by Section 2.03;


 


(f)            to provide for
uncertificated or Unregistered Securities and to make all appropriate changes
for such purpose;


 


(g)           to provide for a
further guarantee from a third party on outstanding Securities of any series
and the Securities of any series that may be issued under this Indenture; or


 


(h)           to make any change that
does not materially and adversely affect the rights of any Holder.


 


Section 10.02.        With
Consent of Holders. Subject to Sections 7.04 and 7.07, without prior notice
to any Holders, the Company, the Guarantor and the Trustee may amend this
Indenture, the Guarantee and the Securities of any series with the written
consent of the Holders of a majority in principal amount (or, if any Securities
are Original Issue Discount Securities, such portion of the Principal as may
then be accelerated under Section 7.02) of the outstanding Securities of all
series affected by such amendment (all such series voting as one class), and
the Holders of a majority in principal amount (or, if any Securities are
Original Issue Discount Securities, such portion of the Principal as may then
be accelerated under Section 7.02) of the outstanding Securities of all series
affected thereby (all such series voting as one class) by written notice to the
Trustee may waive future compliance by the Company and the Guarantor with any
provision of this Indenture, the Guarantee or the Securities of such series.


 


Notwithstanding
the provisions of this Section 10.02, without the consent of each Holder
affected thereby, an amendment or waiver, including a waiver pursuant to
Section 7.04, may not:


 


(a)           extend the stated
maturity of the Principal of, or any sinking fund obligation or any installment
of interest on, such Holder’s Security, or reduce the Principal thereof or the
rate of interest thereon (including any amount in respect of original issue
discount), or adversely affect the rights of such Holder under any mandatory
redemption or repurchase provision or any right of redemption or repurchase at
the option of such Holder, or reduce the amount of the Principal of an Original
Issue Discount Security that would be due and payable upon an acceleration of
the maturity thereof pursuant to Section 7.02 or the amount thereof provable in
bankruptcy, insolvency or similar proceeding, or change any place of payment
where, or the currency in which, any Principal or the interest thereon is
payable, modify any right to convert or exchange such Holder’s Security for
another security to the detriment of the Holder, or impair the right to
institute suit for the enforcement of any such payment on or after the due date
therefor;


 


47

















 


(b)           reduce the percentage
in principal amount of outstanding Securities of the relevant series the
consent of whose Holders is required for any such supplemental indenture, or
for any waiver of compliance with certain provisions of this Indenture or
certain Defaults and their consequences provided for in this Indenture;


 


(c)           waive a Default in the
payment of Principal of or interest on any Security of such Holder; or


 


(d)           modify any of the
provisions of this Section 10.02, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each outstanding Security affected
thereby.


 


A supplemental
indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies the rights of Holders
of Securities of such series with respect to such covenant or provision, shall
be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the coupons appertaining to such
Securities.


 


It shall not
be necessary for the consent of any Holder under this Section 10.02 to approve
the particular form of any proposed amendment, supplement or waiver, but it
shall be sufficient if such consent approves the substance thereof.


 


After an
amendment, supplement or waiver under this Section 10.02 becomes effective, the
Company shall give to the Holders affected thereby a notice briefly describing
the amendment, supplement or waiver. The Company will mail supplemental
indentures to Holders upon request. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture or waiver.


 


Section 10.03.        Revocation
and Effect of Consent. Until an amendment or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the Security of the consenting Holder, even if notation of the
consent is not made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to its Security or portion of its Security. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective with
respect to any Securities affected thereby on receipt by the Trustee of written
consents from the requisite Holders of outstanding Securities affected thereby.


 


The Company
may, but shall not be obligated to, fix a record date (which may be not less
than 10 nor more than 60 days prior to the solicitation of consents) for the
purpose of determining the Holders of the Securities of any series affected
entitled to consent to any amendment, supplement or waiver. If a record date is
fixed, then, notwithstanding the immediately preceding paragraph, those Persons
who were such Holders at such record date (or their duly designated proxies)
and only those Persons shall be entitled to consent to such amendment,
supplement or waiver or to revoke any consent previously given, whether or not


 


48

















 


such Persons
continue to be such Holders after such record date. No such consent shall be
valid or effective for more than 90 days after such record date.


 


After an
amendment, supplement or waiver becomes effective with respect to the
Securities of any series affected thereby, it shall bind every Holder of such
Securities unless it is of the type described in any of clauses(a) through (d)
of Section 10.02. In case of an amendment or waiver of the type described in
clauses (a) through (d) of Section 10.02, the amendment or waiver shall bind
each such Holder who has consented to it and every subsequent Holder of a
Security that evidences the same indebtedness as the Security of the consenting
Holder.


 


Section 10.04.        Notation
on or Exchange of Securities. If an amendment, supplement or waiver changes
the terms of any Security, the Trustee may require the Holder thereof to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Security about the changed terms and return it to the Holder and the Trustee
may place an appropriate notation on any Security of such series thereafter
authenticated. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security of the same series and tenor that reflects the
changed terms.


 


Section 10.05.        Trustee to
Sign Amendments, Etc.. The Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of any amendment, supplement or waiver authorized pursuant to this
Article 10 is authorized or permitted by this Indenture, stating that all
requisite consents have been obtained or that no consents are required and
stating that such supplemental indenture constitutes the legal, valid and
binding obligation of the Company and the Guarantor, enforceable against the
Company and the Guarantor in accordance with its terms, subject to customary
exceptions. Subject to the preceding sentence, the Trustee shall sign such
amendment, supplement or waiver if the same does not adversely affect the
rights of the Trustee. The Trustee may, but shall not be obligated to, execute
any such amendment, supplement or waiver that affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise.


 


Section 10.06.        Conformity
with Trust Indenture Act. Every supplemental indenture executed pursuant to
this Article 10 shall conform to the requirements of the Trust Indenture Act as
then in effect.


 


ARTICLE 11



SUBORDINATION


 


Section 11.01.        Securities
Subordinated to Senior Indebtedness. The Company, for itself and its
successors, and each Holder, by his or her acceptance of Securities, agrees
that the payment of the Principal of and interest on the Securities is
subordinated, to the extent and in the manner provided in this Article 11, to
the right of payment in full to all present and future Senior Indebtedness, and
that these subordination provisions are for the benefit of the holders of
Senior Indebtedness. The provisions of this Article 11 are for the benefit of
the holders of the Senior Indebtedness from time to time (and their successors
and assigns) and shall be enforceable directly by them and their respective
representatives directly against the Company, the Trustee


 


49

















 


and the
Holders (and their successors and assigns). The provisions of this Article 11
shall be a continuing agreement and shall be irrevocable and shall remain in
full force and effect until payment in the full of the Senior Indebtedness in
cash or cash equivalents, and shall constitute a continuing and irrevocable
offer to all Persons who become holders of, or continue to hold, Senior
Indebtedness (whether such Senior Indebtedness was created or acquired before or
after the issuance of the Securities), each of which holders shall be deemed
for the purposes hereof to have acquired Senior Indebtedness in reliance upon
the provisions of this Article 11. The provision of this Article 11 shall
survive the commencement of any reorganization or other proceedings with
respect to the Company or any other Person and the discharge of any claim in
connection with such reorganization or other proceedings, including, without
limitation, the discharge of any Senior Indebtedness.


 


The holders of
the Senior Indebtedness and their respective representatives are hereby
authorized to demand specific performance of the provisions of this Article 11
at any time when the Company or any Holder shall have failed to comply with any
provision of this Article 11 applicable to it, and the Company and each Holder
hereby irrevocably waives any defense based on the adequacy of a remedy at law
that might be asserted as a bar to the remedy of specific performance hereof in
any action brought therefor by the holders of the Senior Indebtedness and their
respective representatives.


 


Section 11.02.        No Payment
on Securities in Certain Circumstances. (a) 
No payment shall be made by or on behalf of the Company on account of
any obligation or, to the extent the subordination thereof is permitted by
applicable law, claim in respect of the Securities, including the Principal of
or interest on the Securities, or to redeem (or make a deposit in redemption
of), defease (other than payments made by the Trustee pursuant to Article 9
with respect to a defeasance permitted by this Indenture, including the
subordination provisions herein) or acquire any of the Securities for cash,
property or securities, (i) upon the maturity of the Senior Indebtedness with
an aggregate principal amount in excess of $100 million by lapse of time,
acceleration or otherwise, unless and until all principal of, premium, if any,
and interest on such Senior Indebtedness and all other obligations in respect
thereof shall first be paid in full in cash or cash equivalents or such payment
is duly provided for, or unless and until any such maturity by acceleration has
been rescinded or waived or (ii) in the event of default in payment of any
principal of, premium, if any, or interest on or any other amount payable in
respect of the Senior Indebtedness with an aggregate principal amount in excess
of $100 million when it becomes due and payable, whether at maturity or at a
date fixed for prepayment or by declaration or otherwise, unless and until such
payment default has been cured or waived or has otherwise ceased to exist.


 


(b)           In the event that,
notwithstanding the foregoing provision of this Section 11.02, any payment or
distribution of assets of the Company from any source, whether in cash,
property or securities, shall be received by the Trustee or the Holders on
account of any obligation or claim in respect of the Securities at a time when
such payment or distribution is prohibited by the foregoing provision, such
payment or distribution (subject to the provisions of Sections 11.06 and 11.07)
shall be held in trust for the benefit of the holders of Senior Indebtedness,
and shall be paid or delivered by the Trustee or such Holders, as the case may
be, to the holders of the Senior Indebtedness remaining unpaid or unprovided
for or their representative or representatives, or to the trustee or trustees
under any indenture pursuant to


 


50

















 


which any
instruments evidencing any of such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on account of the
Senior Indebtedness held or represented by each, for application to the payment
of all Senior Indebtedness remaining unpaid, to the extent necessary to pay or to
provide for the payment in full in cash or cash equivalents of all such Senior
Indebtedness, after giving effect to any concurrent payment or distribution and
all provisions therefor to the holders of such Senior Indebtedness, but only to
the extent that as to any holder of Senior Indebtedness, as promptly as
practicable following notice from the Trustee to the holders of Senior
Indebtedness that such prohibited payment has been received by the Trustee or
Holder(s), such holder (or a representative therefor) notifies the Trustee in
writing of the amounts then due and owing on the Senior Indebtedness, if any,
held by such holder and only the amounts specified in such notices to the
Trustee shall be paid to the holders of Senior Indebtedness.


 


The Company
shall give prompt written notice to the Trustee of any default or event of
default, and any cure or waiver thereof, or any acceleration under any Senior
Indebtedness or under any agreement pursuant to which Senior Indebtedness may
have been issued.


 


Section 11.03.        Securities
Subordinated to Prior Payment of all Senior Indebtedness on Dissolution,
Liquidation or Reorganization of Company. Upon any distribution of assets
of the Company upon any dissolution, winding up, total or partial liquidation
or reorganization or readjustment of the Company, whether voluntary or
involuntary, in bankruptcy, insolvency or similar proceeding or upon assignment
for the benefit of creditors, or any other marshaling of the assets and
liabilities of the Company or otherwise:


 


(a)           the holders of all
Senior Indebtedness shall first be entitled to receive payment in full in cash
or cash equivalents (or have such payment duly provided for) of the principal,
premium, if any, and interest payable in respect thereof before the Holders would
be entitled to receive any payment on account of the Principal of and interest
on the Securities;


 


(b)           any payment or
distribution of assets of the Company of any kind or character, from any
source, whether in cash, property or securities, to which the Holders or the
Trustee on behalf of the Holders shall be entitled, except for the
subordination provisions of this Article 11, would be paid by the liquidating
trustee or agent or other person making such a payment or distribution directly
to the holders of Senior Indebtedness remaining unpaid or unprovided for or
their representative or representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented by
each, for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay or provide for the payment in full in
cash or cash equivalents of all such Senior Indebtedness, after giving effect
to any concurrent payment or distribution to the holders of such Senior
Indebtedness; and


 


(c)           in the event that,
notwithstanding the foregoing, any payment or distribution of assets of the
Company from any source, whether in cash, property or securities, shall be
received by the Trustee or the Holders on account of Principal of or interest
on the Securities before all Senior Indebtedness is paid in full in cash or
cash equivalents (or such payment is duly provided for), such payment or
distribution (subject to the provision of Sections 11.06 and 11.07)


 


51

















 


shall be held
in trust by the Trustee or such Holders for the benefit of the holders of
Senior Indebtedness, and shall be paid or delivered by the Trustee or such
Holders, as the case may be, to the holders of the Senior Indebtedness
remaining unpaid or unprovided for, or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on account of the
Senior Indebtedness held or represented by each, for application to the payment
of all Senior Indebtedness remaining unpaid, to the extent necessary to pay or
provide for the payment in full in cash or cash equivalents of all such Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness, but only to the extent that as to any
holder of Senior Indebtedness, as promptly as practicable following notice from
the Trustee to the holders of Senior Indebtedness that such prohibited payment
has been received by the Trustee or Holder(s), such holder (or a representative
therefor) notifies the Trustee in writing of the amounts then due and owing on
the Senior Indebtedness, if any, held by such holder and only the amounts
specified in such notices to the Trustee shall be paid to the holders of Senior
Indebtedness.


 


The Company
shall give prompt written notice to the Trustee of any dissolution, winding up,
liquidation or reorganization of the Company or assignment for the benefit of
creditors by the Company.


 


Section 11.04.        Securityholders
to be Subrogated to Rights of Senior Indebtedness. Subject to the payment
in full in cash or cash equivalents of all Senior Indebtedness (or provision
made for its payment), the Holders of Securities shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Senior Indebtedness
until all amounts owing on the Securities shall be paid in full, in cash or
cash equivalents and for the purpose of such subrogation no such payments or
distributions to the holders of Senior Indebtedness by or on behalf of the
Company, or by or on behalf of the Holders by virtue of this Article 11, which
otherwise would have been made to the Holders shall, as between the Company and
the Holders, be deemed to be payment by the Company to or on account of the
Senior Indebtedness, it being understood that the provisions of this Article 11
are and are intended solely for the purpose of defining the relative rights of
the Holders, on the one hand, and the holders of Senior Indebtedness, on the
other hand. If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article 11 shall have been
applied, pursuant to the provisions of this Article 11, to the payment of
amounts payable under Senior Indebtedness, then the Holders shall be entitled
to receive from the holders of such Senior Indebtedness any payments or
distributions received by such holders of Senior Indebtedness in excess of the
amount sufficient to pay all amounts payable under or in respect of the Senior
Indebtedness in full in cash or cash equivalents.


 


Section 11.05.        Obligations
of the Company Unconditional. Nothing contained in this Article 11 or
elsewhere in this Indenture or in the Securities is intended to or shall
impair, as between the Company and the Holders, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders the Principal of and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of the Company other than the holders of
the Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or any Holder


 


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from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article 11, of
the holders of Senior Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such remedy. Notwithstanding
anything to the contrary in this Article 11 or elsewhere in this Indenture or
in the Securities, upon any distribution of assets of the Company referred to
in this Article 11, the Trustee and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceeding is pending,
or a certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee or to the Holders for the purpose of ascertaining
the persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article 11.


 


The Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a representative
of such holder or a trustee under any indenture under which any instruments
evidencing any such Senior Indebtedness may have been issued) to establish that
such notice has been given by a holder of such Senior Indebtedness or such
representative or trustee on behalf such holder. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the right of such Person under this Article, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment or distribution.


 


Except as
otherwise provided in this Section 11.05, in the event of any inconsistency
between the provisions of this Article 11, on the one hand, and any other
provision of this Indenture or any provision of the Securities, on the other
hand, the provisions of this Article 11 shall govern.


 


Section 11.06.        Trustee
Entitled to Assume Payments not Prohibited in Absence of Notice. The
Trustee shall not at any time be charged with knowledge of the existence of any
facts which would prohibit the making of any payment to or by the Trustee
unless and until a Responsible Officer of the Trustee shall have received, no
later than three Business Days prior to such payment, written notice thereof
from the Company or from one or more holders of Senior Indebtedness or from any
representative therefor and, prior to the receipt of any such written notice,
the Trustee shall be entitled in all respects conclusively to assume that no
such fact exists.


 


Section 11.07.        Application
by Trustee of Assets Deposited with it. Money or U.S. Government
Obligations deposited in trust with the Trustee pursuant to and in accordance
with Section 9.01, 9.02 or 9.03 shall be for the sole benefit of
Securityholders and, to the extent (i) the making of such deposit by the
Company shall not have been in contravention of any term or provision of any
agreement creating or evidencing Senior Indebtedness and (ii) allocated for the
payment of Securities, shall not be subject to the subordination provisions of
this Article 10.


 


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Otherwise, any
deposit of assets by the Company with the Trustee or any Paying Agent (whether
or not in trust) for the payment of Principal of or interest on any Securities
shall be subject to the provisions of Sections 11.01, 11.02, 11.03 and 11.04; provided,
that, if prior to the second Business Day preceding the date on which by the
terms of this Indenture any such assets may become distributable for any
purpose (including without limitation, the payment of either Principal of or
interest on any Securities) the Trustee or such Paying Agent shall not have
received with respect to such assets the written notice provided for in Section
11.06, then the Trustee or such Paying Agent shall have full power and
authority to receive such assets and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary
which may be received by it on or after such date.


 


Section 11.08.        Subordination
Rights not Impaired by Acts or Omissions of the Company, the Trustee, Holders
of Senior Indebtedness or Securityholders. No act, or failure to act, of
any holder of the Senior Indebtedness or their respective representatives
(including, without limitation, any action referred to in this Section 11.08),
the Company, the Trustee, any Holder or any other Person in accordance with the
terms, covenants or the provisions of this Article 11 (regardless of any
knowledge thereof which any such holder of the Senior Indebtedness may have or
otherwise be charged with) or any reorganization or similar proceeding with
respect to the Company shall affect the provisions of this Article 11, the
obligations owed by the Company, the Trustee or any Holder to the holders of
the Senior Indebtedness under this Article 11 or the rights of any holder of
Senior Indebtedness under this Article 11.


 


The Company,
the Trustee and each Holder hereby agree that the taking of any of the
following actions, with or without notice, by the holders of the Senior
Indebtedness and their respective representatives, will not in any way affect
the provisions of this Article 11: (i) changing the manner, place or terms of
payment or extending the time of payment of, or renewing or altering, any
agreement or instrument creating, evidencing or governing any Senior
Indebtedness, or consenting to any amendment or change of any terms of any such
agreement or instrument, each as amended from time to time; (ii) granting
extensions or renewals of any such agreement or instrument and any other
indulgence with respect thereto, or effecting any release, compromise or
settlement with respect thereto; (iii) releasing any Person liable in any
manner for the payment or collection of any Senior Indebtedness; (iv)
substituting, exchanging or releasing or otherwise disposing of any item of
security at any time securing any Senior Indebtedness, whether or not the
collateral, if any, received upon the exercise of such power shall be of a
character or value the same as or different from the character or value of the
item of security released; (v) exercising or refraining from exercising any
rights or remedies against the Company or any other Person; and (vi) taking any
other action, or refraining from taking any action, that, in the absence of
authority granted hereby, could have the effect of impairing, invalidating or
rendering unenforceable, in whole or in part, or otherwise affecting, any of
the provisions of this Article 11.


 


Section 11.09.        Securityholders
Authorize Trustee to Effectuate Subordination of Securities. Each Holder of
the Securities by his or her acceptance thereof authorizes and expressly
directs the Trustee on his or her behalf to take such action in accordance with
the terms of this Indenture as may be necessary or appropriate to effectuate
the subordination provisions contained in this Article 11 and to protect the
rights of the Holders pursuant to this Indenture,


 


54

















 


and appoints
the Trustee his or her attorney-in-fact for such purpose, including, in the
event of any dissolution, winding up, liquidation or any reorganization or similar
preceding with respect to the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company) tending towards
liquidation of the business and assets of the Company, the immediate filing of
a claim for the unpaid balance of his or her Securities in the form required in
said proceedings and cause said claim to be approved. If the Trustee does not
file a proper claim or proof of debt in the form required in such proceeding
prior to 30 days before the expiration of the time to file such claim or
claims, then the holders of the Senior Indebtedness or their respective
representatives are hereby authorized to have the right to file and are hereby
authorized to file an appropriate claim for and on behalf of the Holders of
said Securities. Nothing herein contained shall be deemed to authorize the
Trustee or the holders of Senior Indebtedness or their respective
representatives to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Senior Indebtedness or their respective
representatives to vote in respect of the claim of any Securityholder in any
such proceeding.


 


Section 11.10.        Right of
Trustee to Hold Senior Indebtedness. The Trustee shall be entitled to all
of the rights set forth in this Article 11 in respect of any Senior
Indebtedness at any time held by it to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall be construed to
deprive the Trustee of any of its rights as such holder.


 


Section 11.11.        Article 11
Not to Prevent Events of Default. The failure to make a payment on account
of Principal of or interest on the Securities by reason of any provision of
this Article 11 shall not be construed as preventing the occurrence of a
Default or an Event of Default under Section 7.01 or in any way prevent the
Holders from exercising any right hereunder other than the right to receive
payment on the Securities.


 


Section 11.12.        No
Fiduciary Duty of Trustee to Holders of Senior Indebtedness. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders (other than for its
willful misconduct, bad faith or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of Securities or the Company
or any other person, cash, property or securities to which any holders of
Senior Indebtedness shall be entitled by virtue of this Article 11 or otherwise.
Nothing in this Section 11.12 shall affect the obligation of any other such
person to hold such payment for the benefit of, and to pay such payment over
to, the holders of Senior Indebtedness or their representative.


 


ARTICLE 12



SUBORDINATION OF THE GUARANTEE


 


Section 12.01.        Guarantee
Subordinated to Guarantor Senior Indebtedness. The Guarantor, for itself
and its successors, and each Holder, by his or her acceptance of Securities,
agrees that the obligations of the Guarantor under the Guarantee are
subordinated, to the extent and in the manner provided in this Article 12, to
the right of payment in full to all present and future Guarantor Senior
Indebtedness, and that these subordination provisions are for the benefit


 


55

















 


of the holders
of Guarantor Senior Indebtedness. The provisions of this Article 12 are for the
benefit of the holders of the Guarantor Senior Indebtedness from time to time
(and their successors and assigns) and shall be enforceable directly by them
and their respective representatives directly against the Guarantor, the
Trustee and the Holders (and their successors and assigns). The provisions of
this Article 12 shall be a continuing agreement and shall be irrevocable and
shall remain in full force and effect until payment in the full of the
Guarantor Senior Indebtedness in cash or cash equivalents, and shall constitute
a continuing and irrevocable offer to all Persons who become holders of, or
continue to hold, Guarantor Senior Indebtedness (whether such Guarantor Senior
Indebtedness was created or acquired before or after the issuance of the
Securities), each of which holders shall be deemed for the purposes hereof to
have acquired Guarantor Senior Indebtedness in reliance upon the provisions of
this Article 12. The provision of this Article 12 shall survive the
commencement of any reorganization or other proceedings with respect to the
Guarantor or any other Person and the discharge of any claim in connection with
such reorganization or other proceedings, including, without limitation, the
discharge of any Guarantor Senior Indebtedness.


 


The holders of
the Guarantor Senior Indebtedness and their respective representatives are
hereby authorized to demand specific performance of the provisions of this
Article 12 at any time when the Guarantor or any Holder shall have failed to
comply with any provision of this Article 12 applicable to it, and the
Guarantor and each Holder hereby irrevocably waives any defense based on the
adequacy of a remedy at law that might be asserted as a bar to the remedy of
specific performance hereof in any action brought therefor by the holders of
the Guarantor Senior Indebtedness and their respective representatives.


 


Section 12.02.        No Payment
on Guarantee in Certain Circumstances. (a) 
No payment shall be made by or on behalf of the Guarantor on account of
any obligation or, to the extent the subordination thereof is permitted by
applicable law, claim in respect of the Guarantee, including the Principal of
or interest on the Securities, or to redeem (or make a deposit in redemption of),
defease (other than payments made by the Trustee pursuant to Article 9 with
respect to a defeasance permitted by this Indenture, including the
subordination provisions herein) or acquire any of the Securities for cash,
property or securities, (i) upon the maturity of the Guarantor Senior
Indebtedness with an aggregate principal amount in excess of $100 million by
lapse of time, acceleration or otherwise, unless and until all principal of,
premium, if any, and interest on such Guarantor Senior Indebtedness and all
other obligations in respect thereof shall first be paid in full in cash or
cash equivalents or such payment is duly provided for, or unless and until any
such maturity by acceleration has been rescinded or waived or (ii) in the event
of default in payment of any principal of, premium, if any, or interest on or
any other amount payable in respect of the Guarantor Senior Indebtedness with
an aggregate principal amount in excess of $100 million when it becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise, unless and until such payment default has been cured
or waived or has otherwise ceased to exist.


 


(b)           In the event that,
notwithstanding the foregoing provision of this Section 12.02, any payment or
distribution of assets of the Guarantor from any source whether in cash,
property or securities, shall be received by the Trustee or the Holders on
account of any obligation or claim in respect of the Guarantee at a time when
such payment or distribution is prohibited by the foregoing provision, such
payment or distribution (subject to the provisions of


 


56

















 


Sections 12.06
and 12.07) shall be held in trust for the benefit of the holders of Guarantor
Senior Indebtedness, and shall be paid or delivered by the Trustee or such
Holders, as the case may be, to the holders of the Guarantor Senior
Indebtedness remaining unpaid or unprovided for or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any of such Guarantor Senior Indebtedness may
have been issued, ratably according to the aggregate amounts remaining unpaid
on account of the Guarantor Senior Indebtedness held or represented by each,
for application to the payment of all Guarantor Senior Indebtedness remaining
unpaid, to the extent necessary to pay or to provide for the payment in full in
cash or cash equivalents of all such Guarantor Senior Indebtedness, after
giving effect to any concurrent payment or distribution and all provisions
therefor to the holders of such Guarantor Senior Indebtedness, but only to the
extent that as to any holder of Guarantor Senior Indebtedness, as promptly as
practicable following notice from the Trustee to the holders of Guarantor
Senior Indebtedness that such prohibited payment has been received by the
Trustee or Holder(s), such holder (or a representative therefor) notifies the
Trustee in writing of the amounts then due and owing on the Guarantor Senior
Indebtedness, if any, held by such holder and only the amounts specified in
such notices to the Trustee shall be paid to the holders of Guarantor Senior
Indebtedness.


 


The Guarantor
shall give prompt written notice to the Trustee of any default or event of
default, and any cure or waiver thereof, or any acceleration under any
Guarantor Senior Indebtedness or under any agreement pursuant to which
Guarantor Senior Indebtedness may have been issued.


 


Section 12.03.        Guarantee
Subordinated to Prior Payment of all Guarantor Senior Indebtedness on
Dissolution, Liquidation or Reorganization of Guarantor . Upon any
distribution of assets of the Guarantor upon any dissolution, winding up, total
or partial liquidation or reorganization or readjustment of the Guarantor,
whether voluntary or involuntary, in bankruptcy, insolvency or similar
proceeding or upon assignment for the benefit of creditors, or any other
marshaling of the assets and liabilities of the Guarantor or otherwise:


 


(a)           the holders of all Guarantor
Senior Indebtedness would first be entitled to receive payment in full in cash
or cash equivalents (or have such payment duly provided for) of the principal,
premium, if any, and interest payable in respect thereof before the Holders
would be entitled to receive any payment under the Guarantee in respect of the
Principal of and interest on the Securities;


 


(b)           any payment or
distribution of assets of the Guarantor of any kind or character, from any
source, whether in cash, property or securities to which the Holders or the
Trustee on behalf of the Holders would be entitled, except for the
subordination provisions of this Article 12, would be paid by the liquidating
trustee or agent or other person making such a payment or distribution directly
to the holders of Guarantor Senior Indebtedness remaining unpaid or unprovided
for or their representative or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing any of such
Guarantor Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Guarantor Senior
Indebtedness held or represented by each, for application to the payment of all
Guarantor Senior Indebtedness remaining unpaid, to the extent necessary to pay
or provide for the payment in full in cash or cash equivalents of all such


 


57

















 


Guarantor
Senior Indebtedness, after giving effect to any concurrent payment or
distribution to the holders of such Guarantor Senior Indebtedness; and


 


(c)           in the event that,
notwithstanding the foregoing, any payment or distribution of assets of the
Guarantor from any source, whether in cash, property or securities, shall be
received by the Trustee or the Holders under the Guarantee before all Guarantor
Senior Indebtedness is paid in full in cash or cash equivalents (or such
payment is duly provided for), such payment or distribution (subject to the
provisions of Sections 12.06 and 12.07) shall be held in trust by the Trustee
or such Holders for the benefit of the holders of the Guarantor Senior
Indebtedness, and shall be paid or delivered by the Trustee or such Holders, as
the case may be, to the holders of Guarantor Senior Indebtedness remaining
unpaid or unprovided for, or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any such Guarantor Senior Indebtedness may have been issued, ratably
according to the respective amounts remaining unpaid on account of the
Guarantor Senior Indebtedness held or represented by each, for application to
the payment of all Guarantor Senior Indebtedness remaining unpaid, to the
extent necessary to make payment in full (except as such payment otherwise
shall have been provided for) of all Guarantor Senior Indebtedness remaining
unpaid after giving effect to all concurrent payments and distributions and all
provisions therefor to the holders of such Guarantor Senior Indebtedness, but
only to the extent that as to any holder of Guarantor Senior Indebtedness, as
promptly as practicable following notice from the Trustee to the holders of
Guarantor Senior Indebtedness that such prohibited payment has been received by
the Trustee or Holder(s), such holder (or a representative therefor) notifies
the Trustee in writing of the amounts then due and owing on the Guarantor
Senior Indebtedness, if any, held by such holder and only the amounts specified
in such notices to the Trustee shall be paid to the holders of Guarantor Senior
Indebtedness.


 


The Guarantor
shall give prompt written notice to the Trustee of any dissolution, winding up,
liquidation or reorganization of the Guarantor or assignment for the benefit of
creditors by the Guarantor.


 


Section 12.04.        Securityholders
to be Subrogated to Rights of Guarantor Senior Indebtedness. Subject to the
payment in full in cash or cash equivalents of all Guarantor Senior
Indebtedness (or provision made for its payment), the holders of the Guarantee
endorsed on the Securities shall be subrogated to the rights of the holders of
such Guarantor Senior Indebtedness to receive payments or distributions of
assets of the Guarantor applicable to the Guarantor Senior Indebtedness until
all amounts owing on the Securities shall be paid in full, in cash or cash
equivalents and for the purpose of such subrogation no such payments or
distributions to the holders of Guarantor Senior Indebtedness by or on behalf
of the Guarantor, or by or on behalf of the Holders by virtue of this Article
12, which otherwise would have been made to the Holders shall, as between the
Guarantor and the Holders, be deemed to be payment by the Guarantor to or on
account of the Guarantor Senior Indebtedness, it being understood that the
provisions of this Article 12 are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders
of Guarantor Senior Indebtedness, on the other hand. If any payment or
distribution to which the Holders would otherwise have been entitled but for
the provisions of this Article 12 shall have been applied, pursuant to the
provisions of this Article 12, to the payment of amounts payable under
Guarantor Senior Indebtedness, then the Holders shall be entitled to receive
from the holders of such Guarantor Senior Indebtedness any payments


 


58

















 


or
distributions received by such holders of Guarantor Senior Indebtedness in
excess of the amount sufficient to pay all amounts payable under or in respect
of the Guarantor Senior Indebtedness in full in cash or cash equivalents.


 


Section 12.05.        Obligations
of the Guarantor Unconditional. Nothing contained in this Article 12 or
elsewhere in this Indenture or in the Securities or the Guarantee is intended
to or shall impair, as between the Guarantor and the Holders, the obligation of
the Guarantor, which is absolute and unconditional, to pay to the Holders any
payment due under the Guarantee in respect of the Principal of and interest on
the Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Guarantor other than the holders of the Guarantor
Senior Indebtedness, nor shall anything herein or therein prevent the Trustee
or any Holder from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under
this Article 12, of the holders of Guarantor Senior Indebtedness in respect of
cash, property or securities of the Guarantor received upon the exercise of any
such remedy. Notwithstanding anything to the contrary in this Article 12 or
elsewhere in this Indenture or in the Securities or in the Guarantee, upon any
distribution of assets of the Guarantor referred to in this Article 12, the
Trustee and the Holders shall be entitled to rely upon any order or decree made
by any court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceeding is pending, or a certificate of the
liquidating trustee or agent or other person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of the Guarantor Senior
Indebtedness and other indebtedness of the Guarantor, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article 12.


 


The Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Guarantor Senior Indebtedness (or a
representative of such holder or a trustee under any indenture under which any
instruments evidencing any such Guarantor Senior Indebtedness may have been
issued) to establish that such notice has been given by a holder of such
Guarantor Senior Indebtedness or such representative or trustee on behalf such
holder. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Guarantor Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Guarantor Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the right of such Person under this Article, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment or distribution.


 


Except as
otherwise provided in this Section 12.05, in the event of any inconsistency
between the provisions of this Article 12, on the one hand, and any other
provision of this Indenture or any provision of the Securities or the
Guarantee, on the other hand, the provisions of this Article 12 shall govern.


 


59

















 


Section 12.06.        Trustee
Entitled to Assume Payments not Prohibited in Absence of Notice. The
Trustee shall not at any time be charged with knowledge of the existence of any
facts which would prohibit the making of any payment to or by the Trustee
unless and until a Responsible Officer of the Trustee shall have received, no
later than three Business Days prior to such payment, written notice thereof
from the Guarantor or from one or more holders of Guarantor Senior Indebtedness
or from any representative therefor and, prior to the receipt of any such
written notice, the Trustee shall be entitled in all respects conclusively to
assume that no such fact exists.


 


Section 12.07.        Application
by Trustee of Assets Deposited with it. Money or U.S. Government
Obligations deposited in trust with the Trustee pursuant to and in accordance
with Section 9.01, 9.02 or 9.03 shall be for the sole benefit of
Securityholders and, to the extent (i) the making of such deposit by the
Guarantor shall not have been in contravention of any term or provision of any
agreement creating or evidencing Guarantor Senior Indebtedness and (ii)
allocated for the payment under the Securities (pursuant to the Guarantee),
shall not be subject to the subordination provisions of this Article 12. Otherwise,
any deposit of assets by the Guarantor with the Trustee or any Paying Agent
(whether or not in trust) for the payment under the Guarantee of Principal of
or interest on the Securities shall be subject to the provisions of Sections
12.01, 12.02, 12.03 and 12.04; provided, that, if prior to the second
Business Day preceding the date on which by the terms of this Indenture any
such assets may become distributable for any purpose (including without
limitation, the payment of either Principal of or interest on any Securities)
the Trustee or such Paying Agent shall not have received with respect to such
assets the written notice provided for in Section 12.06, then the Trustee or
such Paying Agent shall have full power and authority to receive such assets
and to apply the same to the purpose for which they were received, and shall
not be affected by any notice to the contrary which may be received by it on or
after such date.


 


Section 12.08.        Subordination
Rights not Impaired by Acts or Omissions of the Guarantor, the Company, the
Trustee, Holders of Guarantor Senior Indebtedness or Securityholders. No
act, or failure to act, of any holder of the Guarantor Senior Indebtedness or
their respective representatives (including, without limitation, any action
referred to in this Section 12.08), the Guarantor, the Trustee, any Holder or
any other Person in accordance with the terms, covenants or the provisions of
this Article 12 (regardless of any knowledge thereof which any such holder of
the Guarantor Senior Indebtedness may have or otherwise be charged with) or any
reorganization or similar proceeding with respect to the Guarantor shall affect
the provisions of this Article 12, the obligations owed by the Guarantor, the
Trustee or any Holder to the holders of the Guarantor Senior Indebtedness under
this Article 12 or the rights of any holder of Guarantor Senior Indebtedness
under this Article 12.


 


The Guarantor,
the Trustee and each Holder hereby agree that the taking of any of the
following actions, with or without notice, by the holders of the Guarantor
Senior Indebtedness and their respective representatives, will not in any way
affect the provisions of this Article 12: (i) changing the manner, place or
terms of payment or extending the time of payment of, or renewing or altering,
any agreement or instrument creating, evidencing or governing any Guarantor
Senior Indebtedness, or consenting to any amendment or change of any terms of
any such agreement or instrument, each as amended from time to time; (ii)
granting extensions or renewals of any such agreement or instrument and any
other indulgence with respect thereto, or


 


60

















 


effecting any
release, compromise or settlement with respect thereto; (iii) releasing any
Person liable in any manner for the payment or collection of any Guarantor
Senior Indebtedness; (iv) substituting, exchanging or releasing or otherwise
disposing of any item of security at any time securing any Guarantor Senior
Indebtedness, whether or not the collateral, if any, received upon the exercise
of such power shall be of a character or value the same as or different from
the character or value of the item of security released; (v) exercising or
refraining from exercising any rights or remedies against the Guarantor or any
other Person; and (vi) taking any other action, or refraining from taking any
action, that, in the absence of authority granted hereby, could have the effect
of impairing, invalidating or rendering unenforceable, in whole or in part, or
otherwise affecting, any of the provisions of this Article 12.


 


Section 12.09.        Securityholders
Authorize Trustee to Effectuate Subordination of Guarantee. Each holder of
the Guarantee endorsed on the Securities by his or her acceptance thereof
authorizes and expressly directs the Trustee on his or her behalf to take such
action in accordance with the terms of this Indenture as may be necessary or
appropriate to effectuate the subordination provisions contained in this
Article 12 and to protect the rights of the Holders pursuant to this Indenture,
and appoints the Trustee his or her attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or any reorganization
or similar preceding with respect to the Guarantor (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or any other marshalling of assets and liabilities of the Guarantor)
tending towards liquidation of the business and assets of the Guarantor, the
immediate filing of a claim for the unpaid balance of his or her Securities in
the form required in said proceedings and cause said claim to be approved. If
the Trustee does not file a proper claim or proof of debt in the form required
in such proceeding prior to 30 days before the expiration of the time to file
such claim or claims, then the holders of the Guarantor Senior Indebtedness or
their respective representatives are hereby authorized to have the right to
file and are hereby authorized to file an appropriate claim for and on behalf
of the holders of the Guarantee endorsed on the Securities. Nothing herein
contained shall be deemed to authorize the Trustee or the holders of Guarantor
Senior Indebtedness or their respective representatives to authorize or consent
to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Guarantee,
the Securities or the rights of any Holder thereof, or to authorize the Trustee
or the holders of Guarantor Senior Indebtedness or their respective
representatives to vote in respect of the claim of any Securityholder in any
such proceeding.


 


Section 12.10.        Right of
Trustee to Hold Guarantor Senior Indebtedness. The Trustee shall be
entitled to all of the rights set forth in this Article 12 in respect of any
Guarantor Senior Indebtedness at any time held by it to the same extent as any
other holder of Guarantor Senior Indebtedness, and nothing in this Indenture
shall be construed to deprive the Trustee of any of its rights as such holder.


 


Section 12.11.        Article 12
Not to Prevent Events of Default. The failure to make a payment under the
Guarantee on account of Principal of or interest on the Securities by reason of
any provision of this Article 12 shall not be construed as preventing the
occurrence of a Default or an Event of Default under Section 7.01 or in any way
prevent the Holders from exercising any right hereunder other than the right to
receive payment under the Guarantee on the Securities.


 


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Section 12.12.        No
Fiduciary Duty of Trustee to Holders of Guarantor Senior Indebtedness. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Guarantor Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct, bad faith or negligence) if it shall in
good faith mistakenly pay over or distribute to the holders of the Guarantee
endorsed on the Securities or the Guarantor or any other person, cash, property
or securities to which any holders of Guarantor Senior Indebtedness shall be
entitled by virtue of this Article 12 or otherwise. Nothing in this Section
12.12 shall affect the obligation of any other such person to hold such payment
for the benefit of, and to pay such payment over to, the holders of Guarantor
Senior Indebtedness or their representative.


 


ARTICLE 13



MISCELLANEOUS


 


Section 13.01.        Trust
Indenture Act of 1939. This Indenture shall incorporate and be governed by
the provisions of the Trust Indenture Act that are required to be part of and
to govern indentures qualified under the Trust Indenture Act.


 


Section 13.02.        Notices.
Any notice or communication shall be sufficiently given if written and (a) if
delivered in person, when received or (b) if mailed by first class mail, 5 days
after mailing, or (c) as between any two of the Company, the Guarantor and the
Trustee if sent by facsimile transmission, when transmission is confirmed, in
each case addressed as follows:


 


if to the
Company:


 


Credit Suisse
Group Finance (Luxembourg) S.A.

56, Grand-Rue

L-1660 Luxembourg

Facsimile No.:  +352-46-00-11-1




with a copy to the Guarantor at the address
indicated below


 


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if to the
Guarantor:


 


Credit Suisse Group

Paradeplatz 8, P.O. Box 1

CH 8070 Zurich, Switzerland

Facsimile No.:  +41-44-210-2120

Attention:  General Counsel


 


if to the
Trustee:


 


JPMorgan Chase Bank, N.A.

4 New York Plaza

15th Floor

New York, New York 10004

Attention: Worldwide Securities Services 

Facsimile No.: (212) 623-6883


 


The Company,
the Guarantor or the Trustee by written notice to the other may designate
additional or different addresses for subsequent notices or communications.


 


Any notice or
communication shall be sufficiently given to Holders of any Unregistered
Securities by publication at least once in an Authorized Newspaper in The City
of New York and at least once in an Authorized Newspaper in London, and by
mailing to the Holders thereof who have filed their names and addresses with
the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such
addresses as were so furnished to the Trustee and to Holders of Registered
Securities by mailing to such Holders at their addresses as they shall appear
on the Security Register. Notice mailed shall be sufficiently given if so
mailed within the time prescribed. Copies of any such communication or notice
to a Holder shall also be mailed to the Trustee and each Agent at the same
time.


 


Failure to
mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders. Except as otherwise provided in
this Indenture, if a notice or communication is mailed in the manner provided
in this Section 13.02, it is duly given, whether or not the addressee receives
it.


 


Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver. In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.


 


Section 13.03.        Certificate
and Opinion as to Conditions Precedent. Upon any request or application by
the Company or the Guarantor to the Trustee to take any action under this
Indenture, the Company or the Guarantor, as the case may be, shall furnish to
the Trustee:


 


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(a)           an Officers’
Certificate stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and


 


(b)           an Opinion of Counsel
stating that, in the opinion of such counsel, all such conditions precedent
have been complied with.


 


Section 13.04.        Statements
Required in Certificate or Opinion. Each certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture shall include:


 


(a)           a statement that each
person signing such certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;


 


(b)           a brief statement as to
the nature and scope of the examination or investigation upon which the
statement or opinion contained in such certificate or opinion is based;


 


(c)           a statement that, in
the opinion of each such person, he has made such examination or investigation
as is necessary to enable him 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 or not, in the opinion of each such person, such condition or covenant
has been complied with; provided, however, that, with respect to
matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or
certificates of public officials.


 


Section 13.05.        Evidence
of Ownership. The Company, the Guarantor, the Trustee and any agent of the
Company, the Guarantor or the Trustee may deem and treat the Holder of any
Unregistered Security and the Holder of any coupon as the absolute owner of
such Unregistered Security or coupon (whether or not such Unregistered Security
or coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes, and neither the Company, the
Guarantor, the Trustee, nor any agent of the Company, the Guarantor or the
Trustee shall be affected by any notice to the contrary. The fact of the
holding by any Holder of an Unregistered Security, and the identifying number
of such Security and the date of his holding the same, may be proved by the
production of such Security or by a certificate executed by any trust company,
bank, banker or recognized securities dealer wherever situated satisfactory to
the Trustee, if such certificate shall be deemed by the Trustee to be
satisfactory.


 


Each such
certificate shall be dated and shall state that on the date thereof a Security
bearing a specified identifying number was deposited with or exhibited to such
trust company, bank, banker or recognized securities dealer by the person named
in such certificate. Any such certificate may be issued in respect of one or
more Unregistered Securities specified therein. The holding by the person named
in any such certificate of any Unregistered Securities specified therein shall
be presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding (a) another
certificate bearing a later date issued in respect of the same Securities shall
be produced or (b) the Security specified in such certificate shall be produced
by some other Person, or (c) the Security specified


 


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in such
certificate shall have ceased to be outstanding. Subject to Article 8, the fact
and date of the execution of any such instrument and the amount and numbers of
Securities held by the Person so executing such instrument may also be proven
in accordance with such reasonable rules and regulations as may be prescribed
by the Trustee or in any other manner which the Trustee may deem sufficient.


 


The Company,
the Guarantor, the Trustee and any agent of the Company, the Guarantor, or the
Trustee may deem and treat the person in whose name any Registered Security
shall be registered upon the Security Register for such series as the absolute
owner of such Registered Security (whether or not such Registered Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the Principal
of and, subject to the provisions of this Indenture, interest on such
Registered Security and for all other purposes; and neither the Company, the
Guarantor, the Trustee nor any agent of the Company, the Guarantor or the
Trustee shall be affected by any notice to the contrary.


 


Section 13.06.        Rules by
Trustee, Paying Agent or Registrar. The Trustee may make reasonable rules
for action by or at a meeting of Holders. The Paying Agent or Registrar may
make reasonable rules for its functions.


 


Section 13.07.        Payment
Date other than a Business Day. If any date for payment of Principal or
interest on any Security shall not be a Business Day at any place of payment,
then payment of Principal of or interest on such Security, as the case may be,
need not be made on such date, but may be made on the next succeeding Business
Day at any place of payment with the same force and effect as if made on such date
and no interest shall accrue in respect of such payment for the period from and
after such date.


 


Section 13.08.        Governing
Law. The laws of the State of New York (without regard to conflicts of laws
principles thereof) shall govern this Indenture, the Guarantee and the
Securities.


 


Section 13.09.        No Adverse
Interpretation of Other Agreements. This Indenture may not be used to
interpret another indenture or loan or debt agreement of the Company, the
Guarantor or any Subsidiary of the Company or the Guarantor. Any such indenture
or agreement may not be used to interpret this Indenture.


 


Section 13.10.        Successors.
All agreements of the Company and the Guarantor in this Indenture, the
Guarantee and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.


 


Section 13.11.        Duplicate
Originals. The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.


 


Section 13.12.        Separability.
In case any provision in this Indenture or in the Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.


 


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Section 13.13.        Table of
Contents, Headings, Etc.. The Table of Contents and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms and provisions hereof.


 


Section 13.14.        Incorporators,
Stockholders, Officers and Directors of Company Exempt from Individual
Liability. No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or any indenture supplemental hereto, or in any
Security or any coupons appertaining thereto, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such, or against
any past, present or future stockholder, officer, director or employee, as
such, of the Company, of the Guarantor or of any successor, either directly or
through the Company, the Guarantor or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
coupons appertaining thereto by the holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining
thereto.


 


Section 13.15.        Judgment
Currency. The Company and the Guarantor severally agree, to the fullest
extent that they may effectively do so under applicable law, that (a) if for
the purpose of obtaining judgment in any court it is necessary to convert the
sum due in respect of the Principal of or interest on the Securities of any
series (the “Required Currency”) into a currency in which a judgment will be
rendered (the “Judgment Currency”), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the day on which final unappealable judgment is entered, unless
such day is not a Business Day in The City of New York, then, to the extent
permitted by applicable law, the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
Business Day in The City of New York preceding the day on which a final
unappealable judgment is entered and (b) their obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture.


 


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SIGNATURES


 


IN WITNESS
WHEREOF, the parties hereto have caused this Indenture to be duly executed, all
as of the date first written above.


 


	
   

  	
  CREDIT
  SUISSE GROUP FINANCE
(LUXEMBOURG) S.A.,

  as the Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CREDIT
  SUISSE GROUP,

  as the Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A.

  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


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