Exhibit
4.22


 


 


[FORM
OF]


TRUST
PREFERRED SECURITIES


SUBORDINATED
GUARANTEE AGREEMENT


 


 


CREDIT
SUISSE GROUP


 


AS THE
GUARANTOR


 


 


DATED AS OF [             ]


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I

  	
   

  
	
   

  	
   

  
	
  DEFINITIONS AND INTERPRETATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions and Interpretation

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
   

  	
   

  
	
  TRUST INDENTURE ACT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Trust Indenture Act; Application

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 2.02.

  	
  Lists of Holders of Securities

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 2.03.

  	
  Reports by the Guarantee Trustee

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 2.04.

  	
  Periodic Reports to Guarantee Trustee

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 2.05.

  	
  Evidence of Compliance with Conditions Precedent

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 2.06.

  	
  Events of Default; Waiver

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 2.07.

  	
  Event of Default; Notice

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 2.08.

  	
  Rights of Holders

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 2.09.

  	
  Conflicting Interests

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 2.10.

  	
  Powers, Duties and Rights of Guarantee Trustee

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 2.11.

  	
  Certain Rights of Guarantee Trustee

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 2.12.

  	
  Not Responsible for Recitals or Issuance of
  Guarantee

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
   

  	
   

  
	
  GUARANTEE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Guarantee Trustee; Eligibility

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 3.02.

  	
  Appointment, Removal and Resignation of Guarantee
  Trustee.

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
   

  	
   

  
	
  GUARANTEE

  	
   

  
	
   

  	
   

  
	
  Section 4.01.

  	
  Guarantee

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 4.02.

  	
  Delivery of Guarantor Certificate

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 4.03.

  	
  Waiver of Notice and Demand

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 4.04.

  	
  Obligations Not Affected

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 4.05.

  	
  Action Against Guarantor

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 4.06.

  	
  Independent Obligations

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 4.07.

  	
  Taxes

  	
  16

  



 


i

















 


	
   

  	
  Page

  
	
   

  	
   

  
	
  Section 4.08.

  	
  Rights Not Separately Transferable

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
   

  	
   

  
	
  LIMITATIONS OF TRANSACTIONS;
  RANKING

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Limitation of Transactions

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 5.02.

  	
  Ranking

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
   

  	
   

  
	
  TERMINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Termination

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
   

  	
   

  
	
  INDEMNIFICATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Exculpation

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 7.02.

  	
  Indemnification

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Successors and Assigns

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 8.02.

  	
  Amendments

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 8.03.

  	
  Judgment Currency Indemnity

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 8.04.

  	
  Assignment of the Guarantor

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 8.05.

  	
  Notices

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 8.06.

  	
  Governing Law

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 8.07.

  	
  Submission to Jurisdiction

  	
  23

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A

  	
  Form of Guarantor’s
  Certificate

  	
   

  



 


ii

















 


CROSS-REFERENCE TABLE (1)


 


	
  Section of
  Trust Indenture Act

  of 1939, as amended

  	
   

  	
  Section of Guarantee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  310(a)

  	
   

  	
  3.01(a)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  310(b)

  	
   

  	
  2.09, 3.01(c)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  310(c)

  	
   

  	
  Inapplicable

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  311(a)

  	
   

  	
  2.02(b)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  311(b)

  	
   

  	
  2.02(b)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  311(c)

  	
   

  	
  Inapplicable

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  312(a)

  	
   

  	
  2.02(a)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  312(b)

  	
   

  	
  2.02(b)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  313

  	
   

  	
  2.03

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  314(a)

  	
   

  	
  2.04

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  314(b)

  	
   

  	
  Inapplicable

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  314(c)

  	
   

  	
  2.05

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  314(d)

  	
   

  	
  Inapplicable

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  314(e)

  	
   

  	
  2.05

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  314(f)

  	
   

  	
  Inapplicable

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  315(a)

  	
   

  	
  2.10(c), 2.10(d)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  315(b)

  	
   

  	
  2.07

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  315(c)

  	
   

  	
  2.10(c)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  315(d)

  	
   

  	
  2.10(d)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  316(a)

  	
   

  	
  2.08

  	
   

  



 






(1) This Cross-Reference Table does not constitute part of the
Guarantee and shall not affect the interpretation of any of its terms or
provisions.


 

















 


This TRUST PREFERRED SECURITIES SUBORDINATED GUARANTEE
AGREEMENT (this “Guarantee”), dated as of [       ],
is executed and delivered by CREDIT SUISSE GROUP, a company organized under the
laws of Switzerland, with its principal executive office in Zurich, Switzerland
(together with its successors, the “Guarantor”), and JPMORGAN CHASE
BANK, N.A., in its capacity as Guarantee Trustee (as defined herein), for the
benefit of the Holders (as defined herein) from time to time of the Trust Preferred Securities
(as defined herein) of Credit Suisse Group Capital (Delaware) Trust [       ],
a Delaware statutory trust (together with its successors, the “Trust”).


 


WITNESSETH


 


WHEREAS, pursuant to the Amended and Restated Trust Agreement dated as of the date hereof among [Credit Suisse Group Capital (Delaware) LLC [       ]][Credit Suisse Group Capital (Guernsey) [       ]
Limited], as grantor, Chase Bank USA, National Association, as trustee, and the
Holders from time to time of undivided beneficial interests in the assets of
the Trust (as amended
from time to time, the “Trust Agreement”), the Trust is issuing on the date hereof its [                  ](2),
having an aggregate liquidation amount of $[                  ], representing preferred undivided beneficial
interests in the assets of the Trust having the terms set forth in the Trust
Agreement (the “Trust Preferred Securities”);


 


WHEREAS, the Trust Preferred
Securities will be issued by the Trust and the proceeds thereof, together with
the proceeds from the issuance of the Trust Common Securities (as defined
herein), may be used to purchase the Subordinated Notes (as defined herein) of
the Guarantor or one of its branches or Affiliates or other Eligible
Investments (as defined herein) and deposited with Chase Bank USA, National
Association, as trustee under the Trust Agreement, as assets of the Trust; and


 


WHEREAS, in order to induce the Holders from time to
time to purchase the Trust Preferred Securities, the Guarantor desires irrevocably
and unconditionally to agree, to the extent set forth herein, to pay to the
Holders from time to time of the Trust Preferred Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms
and conditions set forth herein;


 


NOW, THEREFORE, in consideration of the purchase by
the Holders from time to time of Trust Preferred Securities, which purchase the
Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and
delivers this Guarantee for the benefit of the Holders from time to time of the
Trust Preferred
Securities.


 


ARTICLE I



DEFINITIONS AND INTERPRETATIONS


 


Section 1.01.                             Definitions
and Interpretation. In this Guarantee, unless the context otherwise
requires:


 






(2)                                Insert
title of trust preferred
securities.


 


1

















 


(a)                capitalized terms
used but not defined herein have the meanings assigned to them in the Trust Agreement;


 


(b)               a term defined
anywhere in this Guarantee has the same meaning throughout;


 


(c)                all references to
“the Guarantee” or “this Guarantee” are to this Guarantee as modified,
supplemented or amended from time to time;


 


(d)               all references in
this Guarantee to Articles and Sections are to Articles and Sections of this
Guarantee, unless otherwise specified; and


 


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


 


“Additional Amounts” means an amount paid as
further Distributions to the extent set forth in the Trust Agreement.


 


“Affiliate” means, with respect to any specified
Person, any other Person that directly or indirectly controls or is controlled
by, or is under common control with, such specified Person.


 


“Assets” means the total assets of the
Guarantor, on a consolidated basis, as shown in the latest published audited
balance sheet of the Guarantor, all valued in such a manner as the Guarantor or
any liquidator (as the case may be) may determine and calculated in accordance
with U.S. GAAP or any other accounting principles that the Guarantor may use to
prepare its financial statements in the future.


 


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


 


“Base Liquidation Amount” means, with respect
to each $[1,000] liquidation amount of Trust Preferred Securities at any date, an
amount equal to the liquidating distributions in respect of the Trust Preferred Securities determined as set
forth in the Trust Agreement.


 


“Business Day” means any day that is not a
Saturday or Sunday and that is not a day on which banking institutions are
generally authorized or obligated by law, regulation or executive order to
close in the City of New York [or [insert
other jurisdictions]].


 


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


 


“Covered Person” means any Holder or beneficial
owner of Trust Preferred
Securities.


 


“Credit Suisse Group Senior Liabilities” has
the meaning assigned to it in Section 5.02(a).


 


“Distribution” means distributions on the Trust Preferred
Securities in the amounts and in the manner set forth in the Trust Agreement.


 


2

















 


“Distribution Date” has the meaning assigned to it
in the Trust Agreement.


 


“Distribution Period” means each
period beginning on the date of original issuance of the Trust Preferred
Securities or on a Distribution Date and ending on the day that precedes the
next succeeding Distribution Date.


 


“Eligible Investments” means, pursuant to the investment policies from time to time of the
Guarantor, the assets
or investments which the Trust may hold and consist of (i) the Subordinated Notes; (ii) other
securities issued by the Guarantor acting through a branch, agency, other office or
Affiliate; or (iii) securities of any entity unaffiliated with the Guarantor.


 


“Event of Default” means a default by the
Guarantor on any of its payment or other obligations under this Guarantee.


 


“Guarantee” has the meaning set forth in the
preamble to this Guarantee.


 


“Guarantee Additional Amounts” has the meaning
set forth in Section 4.07.


 


“Guarantee Payments” has the meaning assigned
to it in Section 4.01.


 


“Guarantee Trustee” means JPMorgan Chase Bank,
N.A., a national banking association, and its successors, in its capacity as
trustee under this Guarantee, until a Successor Guarantee Trustee has been
appointed and has accepted such appointment pursuant to the terms of this
Guarantee by executing a counterpart hereof and becoming a party hereto, and
thereafter means each such Successor Guarantee Trustee.


 


“Guarantor” has the meaning assigned to it in
the preamble to this Guarantee.


 


“Guarantor Certificate” has the meaning
assigned to it in Section 4.02.


 


“Holder” means any holder, as registered on the
books and records of the Trust, of any Trust Preferred Security; provided, however, that,
in determining whether the holders of the requisite percentage of Trust
Preferred Securities have given any request, notice, consent or waiver
hereunder, “Holder” shall not include the Guarantor or any Affiliate of
the Guarantor.


 


“Indemnified Person” means the Guarantee
Trustee, any Affiliate of the Guarantee Trustee, or any officer, director,
shareholder, member, partner, employee, representative, nominee, custodian or
agent of the Guarantee Trustee.


 


“Initial Subordinated Notes” means the [     ]%
subordinated notes due [     ] of the Guarantor or one
of its branches or subsidiaries.


 


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


 


“Investment Company Event” means the receipt by
the Guarantor of an
opinion of a nationally recognized law firm in the United States experienced in
such matters to the effect that 


 


3

















 


there is more than an insubstantial risk that the
Trust is an “investment company” within the meaning of the Investment
Company Act.


 


“Liabilities” means the total liabilities of
the Guarantor, on a consolidated basis, excluding shareholders’ equity, as
shown in the latest published audited balance sheet of the Guarantor, all valued
in such a manner as the Guarantor or any liquidator (as the case may be) may
determine and calculated in accordance with U.S. GAAP or any other accounting
principles that the Guarantor may use to prepare its financial statements in
the future.


 


“Liquidation Distribution” means, with respect
to each $[1,000] liquidation amount of Trust Preferred Securities, an amount equal to
the lesser of (i) the Base Liquidation Amount and (ii) an amount calculated as
(A) the amount of remaining assets of the Guarantor determined to be available
for distribution in respect of this Guarantee, the Parity Preferred Shares and
the Parity Guarantees in any insolvency of the Guarantor, without giving effect
to any distributions hereunder or under the terms of any Parity Guarantees,
multiplied by (B) a fraction, (x) the numerator of which is the Base
Liquidation Amount as of the date the liquidation of the Guarantor commenced
(whether as a result of a Bankruptcy Event or otherwise), and (y) the
denominator of which is the aggregate principal or face amount of all claims,
without duplication, under the Trust Preferred Securities (determined as if
the Trust Preferred
Securities were Parity Preferred Shares), the Parity Preferred Shares and the
Parity Guarantees determined to be payable out of such remaining assets of the
Guarantor.


 


“Majority (or other stated percentage) in liquidation
amount of the Trust Preferred Securities” means, except as provided by the
Trust Indenture Act, a vote by the Holder(s) of more than 50% (or other stated
percentage) of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of all Trust Preferred Securities, voting as a class.


 


“Officers’ Certificate” means, with respect to
any Person, a certificate signed by two Authorized Officers of such Person.


 


 “Parity
Guarantee” means any guarantee issued by the Guarantor from time to time of
any equity preferred or preference shares issued by any subsidiary of the
Guarantor from time to time, if such guarantee ranks pari passu with the Guarantor’s obligations under this
Guarantee.


 


“Parity Preferred Shares” means the most senior
ranking equity preferred or preference shares (if any) outstanding and issued
by the Guarantor from time to time.


 


“Parity Securities” means, collectively, the
Parity Guarantees, the Parity Preferred Shares and the Parity Subsidiary
Securities.


 


“Parity Subsidiary Securities” means any parity
securities issued by a subsidiary of the Guarantor from time to time that are
guaranteed by the Guarantor under a Parity Guarantee.


 


“Person” means a legal person, including any
individual, corporation, estate, partnership, joint venture, association, joint
stock company, limited liability company, trust, unincorporated 


 


4

















 


association, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.


 


“Potential Securityholder” has the meaning
assigned to it in Section 5.01(d).


 


“Qualified Subsidiary” means a subsidiary of
the Guarantor which satisfies the conditions to be considered a “company
controlled by the parent company” under Rule 3a-5 of the Investment Company
Act, or any successor provision.


 


“Redemption Date” has the meaning assigned to
it in the Trust Agreement.


 


“Registrar” means any bank or trust company
appointed to register Trust Preferred Securities and transfers thereof as
herein provided, and shall initially be JPMorgan Chase Bank, N.A.


 


“Relevant Jurisdiction” means Switzerland.


 


“Relevant Tax” means any present or future
taxes, duties, assessments or governmental charges of whatever nature, imposed
or levied by or on behalf of any Relevant Jurisdiction or any authority therein
or thereof having the power to tax.


 


“Responsible Officer” means, with respect to
the Guarantee Trustee, any officer within the Corporate Trust Office of the
Guarantee Trustee with direct responsibility for the administration of the
Guarantee, including any vice president, any assistant vice president, any
trust officer, any secretary, any assistant secretary, the treasurer, any
assistant treasurer or other officer of the Guarantee Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer’s
knowledge of and familiarity with the particular subject.


 


“Shares” means the shares of the Guarantor and
any other shares of the Guarantor’s capital stock ranking junior to the Parity
Preferred Shares, if any, in each case issued by the Guarantor from time to
time.


 


“Solvent” means (i) the Guarantor is able to
pay its debts as they fall due and (ii) the Guarantor’s Assets exceed its
Liabilities (other than its liabilities to persons who are not senior
creditors).


 


“Subordinated Notes” means the Initial
Subordinated Notes and any successor subordinated notes that may constitute the
assets of the Trust.


 


“Successor Guarantee Trustee” means a successor
Guarantee Trustee possessing the qualifications to act as Guarantee Trustee
under Section 3.01.


 


“Tax Event” has the meaning assigned to it in
the Trust Agreement.


 


“Trust” has the meaning assigned to it in the
preamble to this Guarantee.


 


5

















 


“Trust Agreement” has the meaning assigned to it
in the first recital to this Guarantee.


 


“Trust Common Securities” means the securities representing common undivided
beneficial interests
in the assets of the Trust.


 


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


 


 “Trust Preferred Securities” has the meaning assigned to it in the first recital to this Guarantee.


 


“Trust Special Redemption
Event” means (i) a Tax Event or (ii) an Investment Company Event.


 


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


 


ARTICLE II

TRUST INDENTURE ACT


 


Section 2.01.                             Trust
Indenture Act; Application.


 


(a)                This Guarantee is
subject to the provisions of the Trust Indenture Act that are required to be
part of this Guarantee and shall, to the extent applicable, be governed by such
provisions. A term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee, unless otherwise defined in this Guarantee or unless
the context otherwise requires.


 


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


 


Section 2.02.                             Lists
of Holders of Securities.


 


(a)                The Guarantee
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Holders of Trust Preferred Securities. If the
Guarantee Trustee is not the Registrar, the Guarantor shall furnish to the
Guarantee Trustee [at stated intervals of not more than six months], and at
such other times as the Guarantee Trustee may request in writing, a list, in
such form and as of such date as the Guarantee Trustee may reasonably require,
containing all the information in the possession or control of the Registrar,
the Guarantor or any of its paying agents other than the Guarantee Trustee as
to the names and addresses of Holders of Trust Preferred Securities.


 


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


 


Section 2.03.                             Reports
by the Guarantee Trustee. Within 60 days after [May 1] of each year, the
Guarantee Trustee shall provide to the Holders of the Trust Preferred Securities such reports as are required by Section 313(a)
of the Trust Indenture Act, if any, in the form and 


 


6

















 


in the manner provided by
Section 313 of the Trust Indenture Act. The Guarantee Trustee shall also
comply with the other requirements of Section 313 of the Trust Indenture
Act.


 


Section 2.04.                             Periodic
Reports to Guarantee Trustee. The Guarantor shall provide to the Guarantee
Trustee such documents, reports and information as required by Section 314
of the Trust Indenture Act (if any) and shall provide, within [     ]
days after the end of each of its fiscal years, the compliance certificate
required by Section 314 of the Trust Indenture Act in the form and in the
manner required by Section 314 of the Trust Indenture Act. Delivery of
such reports, information and documents to the Guarantee Trustee is for
informational purposes only and the Guarantee Trustee’s receipt of such shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Guarantor’s
compliance with any of its covenants hereunder (as to which the Guarantee
Trustee is entitled to rely exclusively on Officers’ Certificates).


 


Section 2.05.                             Evidence
of Compliance with Conditions Precedent. The Guarantor shall provide to the
Guarantee Trustee such evidence of compliance with the conditions precedent, if
any, provided for in this Guarantee that relate to any of the matters set forth
in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be
given in the form of an Officers’ Certificate and shall include:


 


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


 


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


 


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


 


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


 


Section 2.06.                             Events
of Default; Waiver. The Holders of a Majority in liquidation amount of the Trust Preferred Securities may, by vote,
on behalf of the Holders of all of the Trust
Preferred Securities, waive any past Event of Default and its
consequences except an Event of Default in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of each Holder
of Trust Preferred Securities. Upon
such waiver, any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Guarantee, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.


 


Section 2.07.                             Event
of Default; Notice.


 


(a)                The Guarantee
Trustee shall, within 90 days after the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders of the Trust Preferred 


 


7

















 


Securities, notices of
all Events of Default actually known to a Responsible Officer of the Guarantee
Trustee, unless such defaults have been cured before the giving of such notice;
provided, that, the Guarantee Trustee shall be protected in withholding
such notice if and so long as a Responsible Officer of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests
of the Holders of the Trust Preferred Securities.


 


(b)               The Guarantee
Trustee shall not be deemed to have knowledge of any Event of Default unless a
Responsible Officer of the Guarantee Trustee shall have received written
notice, or a Responsible Officer of the Guarantee Trustee charged with the
administration of this Guarantee shall have obtained actual knowledge, of such
Event of Default.


 


Section 2.08.                             Rights
of Holders.


 


(a)                The Holders of a
Majority in liquidation amount of the Trust
Preferred Securities have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Guarantee Trustee
in respect of this Guarantee or exercising any trust or power conferred upon
the Guarantee Trustee under this Guarantee; provided, that, (1) such
direction shall not be in conflict with any rule of law or with this Guarantee,
(2) the Guarantee Trustee may take any other action deemed proper by the
Guarantee Trustee which is not inconsistent with such direction, and (3)
subject to the provisions of Section 2.10, the Guarantee Trustee shall
have the right to decline to follow any such direction if the Guarantee Trustee
in good faith shall, by a Responsible Officer or Officers of the Guarantee
Trustee, determine that the proceeding so directed would involve the Guarantee
Trustee in personal liability.


 


(b)               If the Guarantee
Trustee fails to enforce its rights under this Guarantee after a Holder of Trust Preferred Securities has made a
written request, such Holder of Trust Preferred
Securities may institute a legal proceeding directly against the Guarantor to enforce
the Guarantee Trustee’s rights under Article IV, without first instituting a
legal proceeding against the Trust, the Guarantee Trustee or any other person
or entity. Notwithstanding the foregoing, if the Guarantor has failed to make a
Guarantee Payment, a Holder of Trust Preferred
Securities may directly institute a proceeding in such Holder’s own name
against the Guarantor for enforcement of Article IV for such payment.


 


Section 2.09.                             Conflicting
Interests. The [Company Preferred
Securities Subordinated Guarantee Agreement] shall be deemed to be specifically described in this Guarantee for
the purposes of clause (i) of the first proviso contained in Section 310(b)
of the Trust Indenture Act.


 


Section 2.10.                             Powers,
Duties and Rights of Guarantee Trustee.


 


(a)                This Guarantee
shall be held by the Guarantee Trustee for the benefit of the Holders of the Trust Preferred Securities, and the Guarantee Trustee shall not
transfer this Guarantee to any Person except a Holder of Trust Preferred
Securities exercising his or her rights pursuant to Section 2.08(b) or to
a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee
of its appointment to act as Successor Guarantee Trustee. The right, title and
interest of the Guarantee Trustee shall automatically vest in any Successor
Guarantee Trustee, and such 


 


8

















 


vesting and cessation of
title shall be effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such Successor Guarantee
Trustee.


 


(b)               If an Event of
Default actually known to a Responsible Officer of the Guarantee Trustee has
occurred and is continuing, the Guarantee Trustee shall be entitled to enforce
this Guarantee for the benefit of the Holders of the Trust Preferred
Securities.


 


(c)                The Guarantee
Trustee, before the occurrence of any Event of Default and after the curing or
waiver of all Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this Guarantee, and
no implied covenants shall be read into this Guarantee against the Guarantee
Trustee. In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.06 and is actually known to a Responsible
Officer of the Guarantee Trustee), the Guarantee Trustee shall exercise such of
the rights and powers vested in it by this Guarantee, and use the same degree
of care and skill in its exercise thereof, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs.


 


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


 


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


 


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


 


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


 


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


 


9

















 


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


 


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


 


Section 2.11.                             Certain
Rights of Guarantee Trustee.


 


(a)                Subject to the
provisions of Section 2.10:


 


(i)                                     the
Guarantee Trustee may conclusively rely, and shall be fully protected in acting
or refraining from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
(whether in its original or facsimile form) believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties;


 


(ii)                                  any
direction or act of the Guarantor contemplated by this Guarantee shall be
sufficiently evidenced by an Officers’ Certificate;


 


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


 


(iv)                              the
Guarantee Trustee shall have no duty to see to any recording, filing or
registration of any instrument (or any rerecording, refiling or registration
thereof) except as required in the administration of this Guarantee;


 


(v)                                 the
Guarantee Trustee may, at the expense of the Guarantor, consult with counsel of
its selection, and the advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such counsel may be counsel to the
Guarantor or the Guarantee Trustee or any of their Affiliates and may include
any of their employees. The Guarantee Trustee shall have the right at any time
to seek instructions concerning the administration of this Guarantee from any
court of competent jurisdiction;


 


10

















 


(vi)                              the
Guarantee Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Guarantee Trustee such
security and indemnity, satisfactory to the Guarantee Trustee, against the
costs, expenses (including attorneys’ fees and expenses and the expenses of the
Guarantee Trustee’s agents, nominees or custodians) and liabilities that might
be incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee; provided,
that nothing contained in this Section 2.11(a)(vi) shall be taken to
relieve the Guarantee Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this
Guarantee;


 


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


 


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


 


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


 


(x)                                   whenever
in the administration of this Guarantee the Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Guarantee Trustee (i) may request
written instructions from the Holders of a Majority in liquidation amount of
the Trust Preferred Securities, (ii) may refrain from enforcing such remedy or
right or taking such other action until such written instructions are received
and (iii) shall be protected in conclusively relying on or acting in accordance
with such written instructions; and


 


(xi)                                the
Guarantee Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Guarantee. No provision of this Guarantee shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in 


 


11

















 


which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts
or to exercise any such right, power, duty or obligation. No permissive power
or authority available to the Guarantee Trustee shall be construed to be a
duty.


 


Section 2.12.                             Not
Responsible for Recitals or Issuance of Guarantee. The recitals contained
in this Guarantee shall be taken as the statements of the Guarantor, and the
Guarantee Trustee does not assume any responsibility for their correctness. The
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Guarantee.


 


ARTICLE III

GUARANTEE TRUSTEE


 


Section 3.01.                             Guarantee
Trustee; Eligibility.


 


(a)                There shall at all
times be a Guarantee Trustee which shall:


 


(i)                                     not
be an Affiliate of the Guarantor; and


 


(ii)                                  be
a corporation organized and doing business under the laws of the United States
of America or any state or territory thereof or of the District of Columbia,
and be permitted by the Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by federal, state, territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining authority referred
to above, then, for the purposes of this Section 3.01(a)(ii), the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.


 


(b)               If at any time the
Guarantee Trustee shall cease to be eligible to so act under Section 3.01(a),
the Guarantee Trustee shall immediately resign in the manner and with the
effect set out in Section 3.02(c).


 


(c)                If the Guarantee
Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b)
of the Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust
Indenture Act, subject to the penultimate paragraph thereof.


 


Section 3.02.                             Appointment,
Removal and Resignation of Guarantee Trustee.


 


(a)                Subject to Section 3.02(b),
the Guarantee Trustee may be appointed or removed without cause at any time by
the Guarantor except during an Event of Default.


 


(b)               The Guarantee
Trustee shall not be removed in accordance with Section 3.02(a) until a
Successor Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Guarantee Trustee
and delivered to the Guarantor.


 


12

















 


(c)                The Guarantee
Trustee shall hold office until a Successor Guarantee Trustee shall have been
appointed or until its removal or resignation. The Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Guarantee Trustee and delivered to the Guarantor,
which resignation shall not take effect until a Successor Guarantee Trustee has
been appointed and has accepted such appointment by instrument in writing
executed by such Successor Guarantee Trustee and delivered to the Guarantor and
the resigning Guarantee Trustee.


 


(d)               If no Successor
Guarantee Trustee shall have been appointed and accepted appointment as
provided in this Section 3.02 within 60 days after delivery of an
instrument of removal or resignation, the Guarantee Trustee resigning or being
removed may petition, at the expense of the Guarantor, any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper,
appoint a Successor Guarantee Trustee.


 


(e)                No Guarantee
Trustee shall be liable for the acts or omissions to act of any Successor
Guarantee Trustee.


 


(f)                  Upon termination
of this Guarantee or removal or resignation of the Guarantee Trustee pursuant
to this Section 3.02, and before the appointment of any Successor
Guarantee Trustee, the Guarantor shall pay to the Guarantee Trustee all amounts
to which it is entitled to the date of such termination, removal or
resignation.


 


ARTICLE IV

GUARANTEE


 


Section 4.01.                             Guarantee.


 


(a)                The
Guarantor irrevocably and unconditionally, on a subordinated basis as provided
in Section 5.02, agrees with the Guarantee Trustee and the Holders from
time to time of the Trust Preferred
Securities, subject to the limitations set forth in this Guarantee, to pay in
full to such Holders, whether such rights under this Guarantee are asserted by
the Guarantee Trustee or directly by any such Holder (without duplication of
amounts theretofore paid to the Holders by the Trust), regardless of any defense, right of set-off or counterclaim
that the Trust may have or assert:


 


(i)                                     on
each Distribution Date, Distributions due and payable on the Trust Preferred Securities in the
amounts and in the manner set forth in the Trust Agreement;


 


(ii)                                  on
each Redemption Date, the redemption price for each Trust Preferred Security called for redemption by the Trust;


 


(iii)                               upon
any voluntary or involuntary dissolution, liquidation or winding up of the Trust, the Liquidation Distribution
payable; and


 


(iv)                              any
Additional Amounts payable by the Trust with
respect to the payment set forth in clauses (i) through (iii), above, under the
Trust Agreement (collectively, the
“Guarantee Payments”);


 


13

















 


provided
that, if a Bankruptcy Event has occurred as to the Guarantor, the Guarantee
Payments payable under clause (i), (ii) and (iii) above of this Section 4.01(a)
shall be an amount equal to the lesser of (A) the aggregate amount of Guarantee
Payments pursuant to such clause of this Section 4.01(a) without giving
effect to this proviso and (B) an amount calculated as (1) the remaining assets
of the Guarantor in the related bankruptcy or insolvency proceeding after
satisfaction of all claims which, as a matter of law, are prior to those of
holders of this Guarantee or any Parity Guarantee multiplied by (2) a fraction,
(x) the numerator of which is the aggregate amount of Guarantee Payments
pursuant to such clause of this Section 4.01(a) without giving effect to
this proviso and (y) the denominator of which is the aggregate principal or
face amount of all claims under this Guarantee and the Parity Guarantees. All
Guarantee Payments shall include interest accrued on such Guarantee Payments,
at a rate per annum equal to the distribution rate applicable to the Trust Preferred Securities, since the
date of the claim asserted under this Guarantee relating to such Guarantee
Payments.


 


A “Bankruptcy Event” shall be deemed to
occur if at any time the Guarantor’s
unconsolidated unsubordinated liabilities exceed its unconsolidated total
assets (valued at the higher of their going-concern and their liquidation
value), as calculated based on the most recent unconsolidated interim balance
sheet of the Guarantor, and the
unsubordinated creditors of the Guarantor
do not agree to subordinate their claims to the extent that such liabilities
exceed such assets. In the case of the occurrence of the event described above,
the Board of Directors of the Guarantor,
pursuant to Article 725 paragraph 2 of the Swiss Code of Obligations, must then
notify the competent court of such excess and upon such notification, such
court must declare the bankruptcy of the Guarantor in accordance with Article 725a paragraph 1 of the Swiss
Code of Obligations.


 


(b)               The Guarantor’s
obligation to make any of the payments listed in (i) and (ii) of subSection (a)
above may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Trust to pay such amounts to the Holders.


 


Section 4.02.                             Delivery
of Guarantor Certificate. As of each (x) Distribution Date with respect to
which the Trust has not paid the
full amount of Distributions at the distribution rate payable as contemplated
by clause (i) of Section 4.01(a) or (y) Redemption Date with respect to
which the Trust has not paid the
redemption price in full, the Guarantor shall deliver an Officers’ Certificate
to the Guarantee Trustee within five Business Days after such Distribution Date
or Redemption Date, as applicable, substantially in the form attached as
Exhibit A (the “Guarantor Certificate”).


 


Section 4.03.                             Waiver
of Notice and Demand. The Guarantor hereby waives notice of acceptance of
this Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Trust or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.


 


Section 4.04.                             Obligations
Not Affected. The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:


 


14

















 


(a)                the release or
waiver, by operation of law or otherwise, of the performance or observance by
the Trust of any express or
implied agreement, covenant, term or condition relating to the Trust Preferred Securities to be
performed or observed by the Trust;


 


(b)               the extension of
time for the payment by the Trust
of all or any portion of the Distributions, redemption price, Liquidation
Distribution or any other sums payable under the terms of the Trust Preferred Securities or the
extension of time for the performance of any other obligation under, arising
out of, or in connection with, the Trust Preferred
Securities; provided that nothing in this Guarantee shall affect or
impair any valid extension;


 


(c)                any failure,
omission, delay or lack of diligence on the part of the Holders of the Trust
Preferred Securities to enforce, assert or exercise any right, privilege, power
or remedy conferred on such Holders pursuant to the terms of the Trust
Preferred Securities or any action on the part of the Trust granting indulgence
or extension of any kind;


 


(d)               the voluntary or
involuntary liquidation, dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Trust
or any of the assets of the Trust;


 


(e)                any invalidity of,
or defect or deficiency in, the Trust Preferred
Securities;


 


(f)                  the settlement
or compromise of any obligation guaranteed hereby or hereby incurred; or


 


(g)               any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a guarantor, it being the intent of this Section 4.04
that the obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.


 


There shall be no obligation of the Holders to give
notice to, or obtain consent of, the Guarantor with respect to the happening of
any of the foregoing.


 


Section 4.05.                             Action
Against Guarantor. The Guarantor waives any right or remedy to require that
any action be brought first against the Trust
or any other person or entity before proceeding directly against the
Guarantor.


 


Section 4.06.                             Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent of
the obligations of the Trust with
respect to the Trust Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 4.04. It is further understood that all
rights of a Holder of a Trust Preferred
Security against the Guarantor under this Guarantee, and all corresponding
obligations of the Guarantor to such Holder, are separate and independent of
the rights and corresponding obligations between the Guarantor and the other
Holders of the Trust Preferred Securities. This Guarantee is a guarantee of
payment and not of collection.


 


15

















 


[If Guarantee
Additional Amounts will be payable insert:


 


Section 4.07.                             Taxes.
All payments in respect of the Guarantee Payments (including interest accrued
thereon, if any) by the Guarantor shall be made without withholding or
deduction for or on account of any Relevant Tax, unless the withholding or
deduction of such Relevant Tax is required by law. In that event, the Guarantor
shall pay, as further Guarantee Payments, such additional amounts as may be
necessary in order that the net amounts received by a Holder (or a third party
on its behalf) after such withholding or deduction for or on account of any
present or future tax, assessment or other governmental charge imposed upon or
as a result of such payment by the Relevant Jurisdiction will equal the amount
which would have been received in respect of the Guarantee Payments (including
interest accrued thereon, if any) in the absence of such withholding or
deduction (“Guarantee Additional Amounts”), except that no such
Guarantee Additional Amounts shall be payable to a Holder (or a third party on
its behalf) with respect to any Guarantee Payments (including interest accrued
thereon, if any),


 


(i) to the extent that such Relevant Tax is imposed or
levied by virtue of such Holder (or the beneficial owner of Trust Preferred
Securities to which such Guarantee Payments relate) having some connection with
the Relevant Jurisdiction, other than being a Holder of Trust Preferred
Securities (or beneficial owner of Trust Preferred Securities);


 


(ii) to the extent that such Relevant Tax is imposed
or levied by virtue of such Holder (or beneficial owner) not having made a
declaration of non-residence in, or other lack of connection with, the Relevant
Jurisdiction or any similar claim for exemption, if the Guarantor or its agent
has provided the Holder (or beneficial owner) of such Trust Preferred
Securities or its nominee with at least 60 days’ prior written notice of any
opportunity to make such a declaration or claim;


 


(iii) more than 30 days after the date on which the
related payments on the Trust Preferred Securities become due, except to the
extent that the Holders (or beneficial owners) of the Trust Preferred
Securities would have been entitled to such Guarantee Additional Amounts on the
thirtieth such day;


 


(iv) to the extent the withholding or deduction is
imposed on a payment to an individual and is required to be made pursuant to
the European Council Directive 2003/48/EC of June 3, 2003 on taxation of
savings income (the “EU Savings Tax Directive”) or any law or other
governmental regulation implementing or complying with, or introduced in order
to conform to, such EU Savings Tax Directive, or is required to be made
pursuant to the Agreement between the European Community and the Confederation
of Switzerland dated as of October 26, 2004 providing for measures equivalent
to those laid down in the EU Savings Tax Directive or any law or other
governmental regulation implementing or complying with, or introduced in order
to conform to, such agreement; or


 


(v) to a Holder (or beneficial owner) who would have
been able to avoid such withholding or deduction of any Relevant Tax by
receiving such payment through another paying agent in a member state of the
European Union.


 


At least 10 days prior to
the first Distribution Date and at least 10 days prior to each subsequent
Distribution Date if there has been a change with respect to the matters set
forth in the below-mentioned Officers’ Certificate, the Guarantor shall furnish
to the Guarantee Trustee 


 


16

















 


an Officers’ Certificate instructing the Guarantee
Trustee as to whether any Guarantee Payment shall be made to Holders without
withholding or deduction for or on account of any Relevant Tax. If any such
withholding or deduction shall be required, then such Officers’ Certificate
shall specify by country the amount, if any, required to be withheld or
deducted on such payments to such Holders and shall certify the fact that
Guarantee Additional Amounts will be payable if a Guarantee Payment is due and
the amounts so payable to each Holder, and the Guarantor shall pay to the Guarantee
Trustee, in case a Guarantee Payment is due, the Guarantee Additional Amounts
required to be paid by this Section. The Guarantor covenants to indemnify the
Guarantee Trustee for, and to hold it harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on its part arising
out of or in connection with actions taken or omitted by it in reliance on any
Officers’ Certificate furnished pursuant to this Section.]


 


[If Guarantee Additional Amounts are required to be paid,
insert provision permitting Guarantor to cause the Trust Preferred Securities
to be redeemed.]


 


Section 4.08.                             Rights
Not Separately Transferable. This Guarantee is a guarantee for the benefit
of each Holder from time to time of Trust
Preferred Securities with respect to each Trust Preferred Security held by such Holder. Upon transfer of any Trust Preferred Securities to a third
party, a Holder thereof shall no longer have any rights hereunder with respect
to such Trust Preferred Securities.
The rights under this Guarantee with respect to a Trust Preferred Security are not separately transferable from such Trust Preferred Security.


 


ARTICLE V

LIMITATIONS OF TRANSACTIONS; RANKING


 


Section 5.01.                             Limitation
of Transactions.


 


(a)                The Guarantor, for
so long as any Trust Preferred
Securities remain outstanding, shall not issue any preferred or preference
shares ranking senior on liquidation to its obligations under this Guarantee or
give any guarantee in respect of any preferred securities or preferred or preference
shares issued by any of its subsidiaries if such guarantee would rank senior to
this Guarantee, unless this Guarantee is amended to give the Holders of the Trust Preferred Securities such rights
and entitlements as are contained in or attached to such other guarantee so
that this Guarantee ranks pari passu
with such guarantee and pari passu
on liquidation with any declared dividend or declared liquidation payments of
such preferred or preference shares.


 


(b)               The Guarantor shall
pay all amounts required to be paid pursuant to this Guarantee in respect of
any Distributions on the Trust Preferred
Securities payable in respect of the most recent Distribution Period prior to
any dividend or other payment (except dividends in the form of Shares) upon the
Shares.


 


(c)                The Guarantor, for
so long as any Trust Preferred
Securities remain outstanding, shall not (i) issue any liquidation preference
participation rights (not being capital stock) ranking senior to or pari passu with the right to liquidation
payments under any Parity Preferred Shares, (ii) create, incur or permit to
exist any debt junior to its obligations under this Guarantee or (iii) create,
incur or permit to exist any debt that ranks pari
passu with this Guarantee, in each case 


 


17

















 


unless such liquidation
preference participation rights or debt contains a provision substantially
similar to the proviso contained in Section 4.01(a).


 


(d)               The Guarantor, for
so long as any Trust Preferred
Securities remain outstanding, shall maintain, or shall cause any one or more
Qualified Subsidiaries (each, a “Potential Securityholder”) to maintain,
100% ownership of the Trust Common
Securities. The Guarantor may transfer or permit the transfer of the Trust Common Securities from one
Potential Securityholder to another Potential Securityholder; provided
that prior to such transfer it has received an opinion of a nationally
recognized U.S. law firm experienced in such matters to the effect that such
transfer will not cause the Trust to be required to register under the
Investment Company Act.


 


(e)                The Guarantor, for
so long as any Trust Preferred
Securities remain outstanding, (i) shall
cause the Trust to remain a statutory trust and not to voluntarily
dissolve, wind up, liquidate or be terminated, except as permitted by the Trust Agreement and (ii) shall use its
commercially reasonable efforts to ensure that the Trust will not be classified
as other than a grantor trust for U.S. federal income tax purposes.


 


(f)                  The Guarantor,
for so long as any of the Trust
Preferred Securities are outstanding, shall, to the fullest extent permitted by
law, not permit, or take any action to cause, the dissolution, liquidation,
termination or winding up of the Trust,
unless a Trust Special Redemption Event
occurs or the Guarantor is itself in liquidation.


 


Section 5.02.                             Ranking.


 


(a)                The Guarantee will
constitute a general and unsecured obligation of the Guarantor and, in
liquidation of the Guarantor, will rank, both as to payment and in liquidation:


 


(i)                                     subordinate
and junior to all liabilities of the Guarantor (including those in respect of
bonds, notes and debentures and guarantees in respect thereof) that do not
expressly rank pari passu with
the obligations of the Guarantor under this Agreement; and


 


(ii)                                  senior
to the Shares and any other securities of the Guarantor expressed to rank
junior to the Parity Securities. The foregoing liabilities that rank senior to
the Guarantee are collectively called “Credit Suisse Group Senior Liabilities.”  The Guarantee ranks junior to the obligations
of the Guarantor under the Subordinated Indenture dated [       ]
among [       ](3), as the company, Credit Suisse
Group, as the guarantor, and JPMorgan Chase Bank, N.A., as the trustee, and the
Subordinated Indenture dated [          ]
between Credit Suisse Group, as the company, and JPMorgan Chase Bank, N.A., as
the trustee.


 


(b)               Payments under this
Guarantee (other than payments upon a winding-up or dissolution, by bankruptcy
or otherwise, in Switzerland of the Guarantor) are conditional upon the
Guarantor’s not being in default in the payment of Credit Suisse Group Senior
Liabilities 


 






(3)                                  Insert “Credit Suisse Group Finance (Delaware) LLC I”, “Credit Suisse Group
Finance (Luxembourg) S.A.” or “Credit
Suisse Group Finance (Guernsey) Limited”,
as applicable.


 


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[and being Solvent
immediately before and after the time of payment. A certificate as to the
solvency of the Guarantor by two persons, each being a managing director,
director or other authorized officer or agent of the Guarantor or employees of
the independent accountants of the Guarantor will, in the absence of manifest
error be treated and accepted by the Guarantor, the Holders of Trust Preferred
Securities and all other interested parties as correct and sufficient evidence
thereof].


 


ARTICLE VI

TERMINATION


 


Section 6.01.                             Termination. This
Guarantee shall terminate upon, and be of no further force and effect from the
earlier of (i) full payment of the redemption price of all Trust Preferred Securities or purchase
and cancellation of all Trust Preferred
Securities or (ii) upon full
payment of the Liquidation Distribution, plus any accumulated and unpaid
Distributions thereon, plus Additional Amounts thereon, if any, as payable upon
liquidation of the Trust. Notwithstanding
the foregoing, this Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Trust Preferred Securities must return
payment of any sums paid under the Trust Preferred
Securities or under this Guarantee pursuant to (i) or (ii) above.


 


ARTICLE VII

INDEMNIFICATION


 


Section 7.01.                             Exculpation.


 


(a)                No Indemnified
Person shall be liable, responsible or accountable in damages or otherwise to
the Guarantor or any Covered Person for any loss, liability, expense, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Guarantee and in a
manner that such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Guarantee or by
law, except that an Indemnified Person shall be liable for any such loss,
liability, expense, damage or claim incurred by reason of such Indemnified
Person’s negligence or willful misconduct with respect to such acts or
omissions.


 


(b)               An Indemnified
Person shall be fully protected in relying in good faith upon the records of
the Guarantor and upon such information, opinions, reports or statements
presented to the Guarantor by any Person as to matters the Indemnified Person
reasonably believes are within such other Person’s professional or expert
competence, including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits, losses, or any other
facts pertinent to the existence and amount of assets from which Distributions
to Holders of Trust Preferred
Securities might properly be paid.


 


Section 7.02.                             Indemnification.
The Guarantor agrees to pay to the Guarantee Trustee from time to time such
compensation as shall be agreed to in writing between the Guarantor and the
Guarantee Trustee for all services rendered by it hereunder and to reimburse
the Guarantee Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Guarantee Trustee in
accordance with any provision of this Guarantee 


 


19

















 


(including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence, willful misconduct or bad faith. The Guarantor agrees to indemnify
each Indemnified Person for, and to hold each Indemnified Person harmless
against, any and all loss, liability, damage, claim or expense (including taxes
other than taxes based on the income of any such Indemnified Person) incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and expenses)
of defending itself against, or investigating, any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.


 


Promptly after receipt by
an Indemnified Person of notice of the commencement of any action, such
Indemnified Person will, if a claim in respect thereof is to be made against
the Guarantor, notify the Guarantor in writing of the commencement thereof; provided
that, failure to give such prompt notice shall not impair the obligations of
the Guarantor hereunder except to the extent that such failure to provide
notice materially prejudices the Guarantor. The Guarantor shall be entitled to
appoint counsel of the Guarantor’s choice at the Guarantor’s expense to
represent the Indemnified Persons in any action for which indemnification is
sought; provided, however, that such counsel shall be reasonably
satisfactory to the Indemnified Persons. The Guarantor will not, without the
prior written consent of the Indemnified Persons, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification may be
sought unless such settlement, compromise or consent includes an unconditional
release of each Indemnified Person from all liability arising out of such
claim, action, suit or proceeding.


 


The obligations of the
Guarantor under this Section 7.02 shall survive the termination of this
Guarantee or the earlier resignation or removal of the Guarantee Trustee.


 


ARTICLE VIII

MISCELLANEOUS


 


Section 8.01.                             Successors
and Assigns. All guarantees and agreements contained in this Guarantee
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Trust
Preferred Securities then outstanding.


 


Section 8.02.                             Amendments.
Except for those changes (i) required under Section 5.01(a) above, which
may be made unilaterally by the Guarantor without the consent of the Holders of
the Trust Preferred Securities, or
(ii) provided for in the last two sentences of this paragraph or the penultimate
paragraph of this Section 8.02, this Guarantee may be modified by the
Guarantor and the Guarantee Trustee only with the prior approval of the Holders
of not less than a Majority in liquidation amount of the Trust Preferred Securities (excluding
any Trust Preferred Securities
held by the Guarantor or any of its Affiliates other than Trust Preferred Securities purchased or
acquired by the Guarantor or its Affiliates in connection with transactions
effected by or for the account of customers of the Guarantor or any of its
Affiliates in connection with the distribution or trading of or market-making
in connection with such securities and except that persons (other than
Affiliates of the Guarantor) to whom the Guarantor 


 


20

















 


or any of its
subsidiaries have pledged Trust
Preferred Securities may vote or consent with respect to such pledged
securities pursuant to the terms of such pledge).


 


The Guarantor and the Guarantee Trustee may, at any
time and from time to time, without the consent of the Holders of the Trust
Preferred Securities, enter into one or more agreements supplemental hereto, in
form satisfactory to the Guarantee Trustee, (i) to cure any ambiguity or
correct any mistake, (ii) to correct or supplement any provision in this
Guarantee that may be defective or inconsistent with any other provision of
this Guarantee, (iii) to add to the covenants, restrictions or obligations
of the Guarantor for the benefit of the Holders of the Trust Preferred Securities
or to surrender any right or power conferred upon the Guarantor under this
Guarantee, (iv) to evidence the succession of another entity to the
Guarantor and the assumption by any such successor of the covenants of the
Guarantor stated herein, (v) to modify or supplement any provision in this
Guarantee to give effect to any provision made invalid by any changes in the
Investment Company Act, the Trust Indenture Act or the rules or regulations of
either such Act or any other applicable law, (vi) to modify, eliminate and
add to any provision of this Guarantee to such extent as may be necessary or
desirable, or (vii) in connection with the creation of any series of Trust
Preferred Securities and the establishment of the particular terms thereof; provided
that no such amendment made in reliance upon clause (vi) above shall have
a material adverse effect on the rights, preferences or privileges of the
Holders of the Trust Preferred Securities; provided, further that
no such amendment made in reliance upon clause (v) shall cause any
provision in the Trust Agreement to become invalid or shall have a material
adverse effect on the interests of the Holders of the Trust Preferred
Securities. Except as provided in the preceding sentence, Sections 4.01,
4.02, [4.07] and the form of Exhibit A may not be amended without the prior
approval of each Holder of the Trust Preferred Securities.


 


Any amendment to reduce the aggregate liquidation
amount of Trust Preferred
Securities whose Holders must consent to an amendment as provided in the
preceding paragraph must be approved by each Holder of Trust Preferred
Securities.


 


Any amendment hereof in accordance with this Section 8.02
shall be binding on all Holders.


 


The Guarantee Trustee shall be entitled to receive,
and shall be fully protected in relying upon, a written opinion of counsel
stating that the execution of any amendment pursuant to this Section 8.02
is authorized or permitted by this Guarantee, stating that all requisite
consents have been obtained or that no consents are required and stating that
such amendment constitutes the legal, valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its terms,
subject to customary exceptions. Subject to the preceding sentence, the Guarantee
Trustee shall sign such amendment if the same does not adversely affect the
rights of the Guarantee Trustee. The Guarantee Trustee may, but shall not be
obligated to, execute any such amendment that affects the Guarantee Trustee’s
own rights, duties or immunities under this Guarantee or otherwise.


 


Section 8.03.                             Judgment
Currency Indemnity.


 


(a)                If, for the
purposes of obtaining judgment in any court, it is necessary to convert an
amount due from the Guarantor under any provision of this Guarantee to a currency
other than U.S. dollars, the parties agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures JPMorgan Chase Bank, N.A., could
purchase such other currency with U.S. dollars at its New York office on the
second Business Day preceding the day on which final judgment is given.


 


(b)               The obligations of
the Guarantor in respect of any amount due to the Guarantee Trustee or any
Holders under this Agreement shall, notwithstanding any judgment in a currency
other than U.S. dollars, be discharged only to the extent that on the Business
Day following receipt by the Guarantee Trustee or such Holders, as the case may
be, of any amount adjudged to be so due in such other currency the Guarantee
Trustee or such Holders, as the case may be, may in accordance with normal
banking procedures purchase U.S. dollars with such other currency.


 


21

















 


(c)                If the amount of
U.S. dollars so purchased is less than the amount originally due to the
Guarantee Trustee or such Holders, as the case may be, in U.S. dollars, the
Guarantor agrees, to the fullest extent that it may effectively do so, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Guarantee Trustee or such Holders, as the case may be, against such loss.


 


(d)               If the amount of
dollars so purchased exceeds the amount originally due to the Guarantee Trustee
or such Holders, as the case may be, in U.S. dollars, the Guarantee Trustee and
such Holders agree to remit any remaining amount to the Guarantor.


 


Section 8.04.                             Assignment
of the Guarantor. The Guarantor may not assign its obligations under the
Guarantee, except in the case of a merger or consolidation where the Guarantor
is not the surviving entity, or a sale, lease or other transfer of
substantially all of its assets, and then only to the entity which is the
survivor of such merger or consolidation or the purchaser in such sale and
which expressly assumes the obligations of the Guarantor hereunder.


 


Section 8.05.                             Notices.
All notices provided for in this Guarantee shall be in writing, duly signed by
the party giving such notice, and shall be delivered, telecopied or mailed by
first class mail, as follows:


 


(a)                If given to the
Guarantee Trustee, at the Guarantee Trustee’s mailing address set forth below:


 


JPMorgan Chase
Bank, N.A.


4 New York Plaza


15th Floor


New York, New York
10004


Attention:
Worldwide Securities Services


 


(b)               If given to the Guarantor,
at the Guarantor’s mailing address set forth below (or such other address as
the Guarantor may give notice of to the Holders of the Trust Preferred Securities):


 


Credit
Suisse Group


Paradeplatz 8,
P.O. Box 1

CH 8070 Zurich, Switzerland

Attention: General Counsel


Telephone:  +41 44 212 1616


 


With copies to:


 


Cleary Gottlieb
Steen & Hamilton LLP


One Liberty Plaza


New York, New York
10006


Attention: Craig
B. Brod, David I. Gottlieb


Telephone:
212-225-2650, 212-225-2654


 


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(c)                If given to any
Holder of Trust Preferred
Securities, at the address set forth on the books and records of the Trust. All such notices shall be deemed
to have been given when received in person, telecopied with receipt confirmed,
or mailed by first class mail, postage prepaid except that if a notice or other
document is refused delivery or cannot be delivered because of a changed
address of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability to
deliver.


 


Section 8.06.                             GOVERNING
LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.


 


Section 8.07.                             Submission
to Jurisdiction. Any claim or proceeding brought by the Guarantee Trustee
on behalf of Holders or a Holder to enforce the obligations of the Guarantor
hereunder shall be brought exclusively in a court of competent jurisdiction in
the State of New York. Any claim or proceeding relating to the application of
Articles II and III, and the definitions of terms as used therein, including,
without limitation, any claims, counter-claims and cross-claims asserted
against the Guarantee Trustee in connection therewith, shall be brought in a
court of competent jurisdiction in the State of New York.


 


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This GUARANTEE is executed as of the day and year
first above written.


 


	
   

  	
  CREDIT SUISSE GROUP, as Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  JPMORGAN CHASE BANK,
  N.A.

  	
   

  
	
  as Guarantee Trustee

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
							



 


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EXHIBIT A


 


[FORM OF GUARANTOR’S
CERTIFICATE]


 


25