EXHIBIT 4.7


 


[FORM OF
SUBORDINATED GUARANTEED INDENTURE]


 


 




 





 


CREDIT
SUISSE GROUP FINANCE (GUERNSEY) LIMITED


 


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

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 2.04.

  	
  Denomination and Date
  of Securities; Payments of Interest

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 2.05.

  	
  Registrar and Paying
  Agent; Agents Generally

  	
  12

  
	
   

  	
   

  	
   

  
	
  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

  	
  18

  
	
   

  	
   

  	
   

  
	
  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

  	
  19

  
	
   

  	
   

  	
   

  
	
  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

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 3.04.

  	
  Exclusion of Certain
  Securities from Eligibility for Selection for Redemption

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 3.05.

  	
  Mandatory and Optional
  Sinking Funds

  	
  22

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Payment of Securities

  	
  24

  
	
   

  	
   

  	
   

  
	
  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

  	
  26

  
	
   

  	
   

  	
   

  
	
  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

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  
	
  THE GUARANTEE BY AND COVENANTS
  OF THE GUARANTOR

  	
   

  
	
   

  	
   

  
	
  Section 6.01.

  	
  Guarantee

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 6.02.

  	
  When the Guarantor May Merge,
  Etc.

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 6.03.

  	
  Successor Substituted

  	
  30

  
	
   

  	
   

  	
   

  
	
  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

  	
  34

  
	
   

  	
   

  	
   

  
	
  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

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 7.10.

  	
  Application of Proceeds

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 7.11.

  	
  Restoration of Rights
  and Remedies

  	
  36

  
	
   

  	
   

  	
   

  
	
  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

  	
  37

  
	
   

  	
   

  	
   

  
	
  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

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 8.07.

  	
  Compensation and
  Indemnity

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 8.08.

  	
  Replacement of Trustee

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 8.09.

  	
  Successor Trustee by
  Merger, Etc.

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 8.10.

  	
  Eligibility

  	
  42

  
	
   

  	
   

  	
   

  
	
  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

  	
  45

  
	
   

  	
   

  	
   

  
	
  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

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 10.05.

  	
  Trustee to Sign
  Amendments, Etc.

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 10.06.

  	
  Conformity with Trust
  Indenture Act

  	
  49

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
   

  
	
  SUBORDINATION

  	
   

  
	
   

  	
   

  
	
  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

  	
  53

  
	
   

  	
   

  	
   

  
	
  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

  	
  58

  
	
   

  	
   

  	
   

  
	
  Section 12.06.

  	
  Trustee Entitled to
  Assume Payments not Prohibited in Absence of Notice

  	
  59

  
	
   

  	
   

  	
   

  
	
  Section 12.07.

  	
  Application by Trustee
  of Assets Deposited with it

  	
  59

  
	
   

  	
   

  	
   

  
	
  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

  	
  60

  
	
   

  	
   

  	
   

  
	
  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

  	
  61

  
	
   

  	
   

  	
   

  
	
  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

  	
  63

  
	
   

  	
   

  	
   

  
	
  Section 13.05.

  	
  Evidence of Ownership

  	
  64

  
	
   

  	
   

  	
   

  
	
  Section 13.06.

  	
  Rules by Trustee,
  Paying Agent or Registrar

  	
  64

  
	
   

  	
   

  	
   

  
	
  Section 13.07.

  	
  Payment Date other than
  a Business Day

  	
  64

  
	
   

  	
   

  	
   

  
	
  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.

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 13.14.

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

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 13.15.

  	
  Judgment Currency

  	
  65

  



 


v

















 


SUBORDINATED INDENTURE,
dated as of                   ,
20    , among Credit Suisse Group Finance (Guernsey)
Limited, a limited company organized under the laws of Guernsey, 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, 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 (Luxembourg) S.A., 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 or any assistant
secretary 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
Person’s preferred or preference stock, whether now outstanding or issued after
the date of the


 


4

















 


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.


 


“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.


 


5

















 


“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.


 


“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:


 


	
  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

  	
   

  



 


6

















 


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;


 


(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


 


7

















 


(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.
If an Officer whose signature is on a Security or the Guarantee no longer holds
that office at the time the Security or the Guarantee is authenticated, the
Security or the Guarantee shall nevertheless be valid.


 


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 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:


 


8

















 


(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 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.


 


9

















 


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;


 


(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;


 


10

















 


(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;


 


(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


 


11

















 


(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.


 


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 


 


12

















 


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 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.


 


13

















 


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 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


 


14

















 


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.


 


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.


 


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 certificated 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.


 


15

















 


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.


 


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
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.


 


16

















 


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
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.


 


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,


 


17

















 


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 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.


 


18

















 


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.


 


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.


 


19

















 


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 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.


 


20

















 


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.


 


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.


 


21

















 


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
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


 


22

















 


(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.


 


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


 


23

















 


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 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


 


24

















 


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 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.


 


25

















 


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 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


 


26

















 


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).


 


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


 


27

















 


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 (Guernsey) Limited, a
limited company organized under the laws of Guernsey (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 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


 


28

















 


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 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.


 


29

















 


 


	
   

  	
  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
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,


 


30

















 


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 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;


 


31














 


(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
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


 


32

















 


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 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.


 


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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 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;


 


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(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.


 


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


 


35

















 


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 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


 


36

















 


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.


 


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


 


37

















 


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;


 


(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;


 


38

















 


(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 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


 


39

















 


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 (Luxembourg) S.A., 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 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


 


40

















 


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.


 


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.


 


41

















 


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 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.


 


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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 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


 


43

















 


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 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.


 


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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 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.


 


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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;


 


(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


 


46

















 


(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;


 


(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


 


47

















 


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 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


 


48

















 


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 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


 


49

















 


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 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.


 


50

















 


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) 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


 


51

















 


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 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.


 


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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. 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,


 


53

















 


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, 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


 


54

















 


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 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


 


55

















 


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 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


 


56

















 


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 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


 


57

















 


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 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,


 


58

















 


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.


 


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)


 


59

















 


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 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


 


60

















 


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.


 


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.


 


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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
(Guernsey) Limited

Helvetia Court

South Esplanade

St. Peter Port

Guernsey, Channel Islands GYI 3WF

Facsimile No.: +44-1481-700-234

Attention: CS Group New Business Dept.



                                                with a copy to the Guarantor at the address
indicated below


 


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


 


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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:


 


(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


 


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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 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


 


64

















 


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.


 


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


 


65

















 


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

  (GUERNSEY) LIMITED,

  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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