Exhibit 4.8
[FORM OF]
SUBORDINATED GUARANTEE AGREEMENT
CREDIT SUISSE GROUP
AS THE GUARANTOR
DATED AS OF _______, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
Section 1.01. Definitions and Interpretation....................................................1
ARTICLE II
TRUST INDENTURE ACT
Section 2.01. Trust Indenture Act; Application..................................................6
Section 2.02. Lists of Holders of Securities....................................................6
Section 2.03. Reports by the Guarantee Trustee..................................................6
Section 2.04. Periodic Reports to Guarantee Trustee.............................................7
Section 2.05. Evidence of Compliance with Conditions Precedent..................................7
Section 2.06. Events of Default; Waiver.........................................................7
Section 2.07. Event of Default; Notice..........................................................7
Section 2.08. Rights of Holders.................................................................8
Section 2.09. Conflicting Interests.............................................................8
Section 2.10. Powers, Duties and Rights of Guarantee Trustee....................................8
Section 2.11. Certain Rights of Guarantee Trustee..............................................10
Section 2.12. Not Responsible for Recitals or Issuance of Guarantee............................12
ARTICLE III
GUARANTEE TRUSTEE
Section 3.01. Guarantee Trustee; Eligibility...................................................12
Section 3.02. Appointment, Removal and Resignation of Guarantee Trustee........................13
ARTICLE IV
GUARANTEE
Section 4.01. Guarantee........................................................................13
Section 4.02. Delivery of Guarantor Certificate................................................14
Section 4.03. Waiver of Notice and Demand......................................................14
Section 4.04. Obligations Not Affected.........................................................15
Section 4.05. Action Against Guarantor.........................................................15
Section 4.06. Independent Obligations..........................................................15
Section 4.07. Taxes............................................................................16
Section 4.08. Rights Not Separately Transferable...............................................17
ARTICLE V
LIMITATIONS OF TRANSACTIONS; RANKING
Section 5.01. Limitation of Transactions.......................................................17
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TABLE OF CONTENTS
(continued)
PAGE
Section 5.02. Ranking..........................................................................18
ARTICLE VI
TERMINATION
Section 6.01. Termination......................................................................19
ARTICLE VII
INDEMNIFICATION
Section 7.01. Exculpation......................................................................19
Section 7.02. Indemnification..................................................................19
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Successors and Assigns...........................................................20
Section 8.02. Amendments.......................................................................20
Section 8.03. Judgment Currency Indemnity......................................................21
Section 8.04. Assignment of the Guarantor......................................................21
Section 8.05. Notices..........................................................................21
Section 8.06. Governing Law....................................................................22
Section 8.07. Jurisdiction.....................................................................22
EXHIBIT A Form of Guarantor's Certificate
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CROSS-REFERENCE TABLE(1)
Section of Trust Indenture Act Section of Guarantee
of 1939, as amended
310(a)...............................................................................3.01(a)
310(b).........................................................................2.09, 3.01(c)
310(c)..........................................................................Inapplicable
311(a)...............................................................................2.02(b)
311(b)...............................................................................2.02(b)
311(c)..........................................................................Inapplicable
312(a)...............................................................................2.02(a)
312(b)...............................................................................2.02(b)
313.....................................................................................2.03
314(a)..................................................................................2.04
314(b)..........................................................................Inapplicable
314(c)..................................................................................2.05
314(d)..........................................................................Inapplicable
314(f)..........................................................................Inapplicable
315(a)......................................................................2.10(c), 2.10(d)
315(b)..................................................................................2.07
315(c)...............................................................................2.10(c)
315(d)...............................................................................2.10(d)
316(a)..................................................................................2.08
----------
(1) This Cross-Reference Table does not constitute part of the Guarantee and
shall not affect the interpretation of any of its terms or provisions.
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This
SUBORDINATED GUARANTEE AGREEMENT (this "GUARANTEE"), dated as of
________, 2002, is executed and delivered by
CREDIT SUISSE GROUP, a company
organized under the laws of Switzerland, with its principal executive office in
Zurich, Switzerland (together with its successors, the "GUARANTOR"), and
JPMORGAN CHASE BANK, in its capacity as trustee, for the benefit of the Initial
Holder and any subsequent holders from time to time of the Company Preferred
Securities (as defined herein) of
Credit Suisse Group Capital (Delaware) LLC I,
a Delaware limited liability company (together with its successors, the
"COMPANY").
WITNESSETH
WHEREAS, pursuant to the Amended and Restated Limited Liability Company
Agreement of the Company (as amended from time to time, the "LLC AGREEMENT")
dated as of the date hereof among the Guarantor,
Credit Suisse Group Capital
(Delaware) Trust I (together with its successors, the "TRUST") and the persons
who may from time to time become securityholders of the Company, the Company is
issuing on the date hereof its [INSERT TITLE OF COMPANY PREFERRED SECURITIES],
having an aggregate liquidation preference of $________, representing preferred
limited liability company interests in the Company (the "COMPANY PREFERRED
SECURITIES"); and
WHEREAS, in order to induce the Initial Holder to purchase the Company
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth herein, to pay to the Initial Holder and any
subsequent Holders from time to time of the Company Preferred Securities the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase by the Initial Holder and
any subsequent Holder from time to time of Company Preferred Securities, which
purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Guarantee for the benefit of the Initial Holder and
any subsequent Holders from time to time of the Company Preferred Securities.
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
Section 1.01. DEFINITIONS AND INTERPRETATION. In this Guarantee, unless the
context otherwise requires:
(a) capitalized terms used but not defined herein have the meanings
assigned to them in the LLC Agreement;
(b) a term defined anywhere in this Guarantee has the same meaning
throughout;
(c) all references to "the Guarantee" or "this Guarantee" are to this
Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Guarantee to Articles and Sections are to
Articles and Sections of this Guarantee, unless otherwise specified; and
(e) a reference to the singular includes the plural and vice versa.
"ADDITIONAL AMOUNTS" means an amount paid as further Dividends to the
extent set forth in the LLC Agreement.
"ADMINISTRATIVE ACTION" means any judicial decision, official
administrative pronouncement, published or private ruling, regulatory procedure,
notice or announcement (including any notice or announcement of intent to adopt
such procedures or regulations) by any legislative body, court, governmental
authority or regulatory body having appropriate jurisdiction.
"AFFILIATE" means, with respect to any specified person, any other Person
that directly or indirectly controls or is controlled by, or is under common
control with, such specified Person.
"ASSETS" means the total assets of the Guarantor, on a consolidated basis,
as shown in the latest published audited balance sheet of the Guarantor, all
valued in such a manner as the Guarantor or any liquidator (as the case may be)
may determine and calculated in accordance with Swiss GAAP or any other
accounting principles that the Guarantor may use to prepare its financial
statements in the future.
"AUTHORIZED OFFICER" of a Person means any Person that is authorized to
bind such Person.
"BANKRUPTCY EVENT" has the meaning assigned to it in the LLC Agreement.
"BASE LIQUIDATION AMOUNT" means, with respect to each $[INSERT MINIMUM
DENOMINATION OF COMPANY PREFERRED SECURITIES] liquidation preference of Company
Preferred Securities at any date, an amount equal to the liquidating
distributions in respect of the Company Preferred Securities determined as set
forth in the LLC Agreement.
"COMPANY" has the meaning assigned to it in the preamble to this Guarantee.
"COMPANY PREFERRED SECURITIES" has the meaning assigned to it in the first
recital to this Guarantee.
"CORPORATE TRUST OFFICE" means the office of the Guarantee Trustee at
which, at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at JPMorgan Chase Bank,
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Institutional Trust Services.
"CORRESPONDING AMOUNT" means, (i) for each $[INSERT MINIMUM DENOMINATION OF
TRUST PREFERRED SECURITIES] liquidation amount of Trust Preferred Securities,
$[INSERT MINIMUM DENOMINATION OF COMPANY PREFERRED SECURITIES] liquidation
preference of Company Preferred Securities and (ii) for each $ [INSERT MINIMUM
DENOMINATION OF COMPANY PREFERRED SECURITIES] liquidation preference of Company
Preferred Securities, $[INSERT MINIMUM DENOMINATION OF TRUST PREFERRED
SECURITIES] liquidation amount of Trust Preferred Securities.
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"COVERED PERSON" means any Holder or beneficial owner of Company Preferred
Securities.
"
CREDIT SUISSE GROUP SENIOR LIABILITIES" has the meaning assigned to it in
Section 5.02(a).
"DIVIDEND RATE" means, on any day, the dividend rate applicable to the
Company Preferred Securities as determined pursuant to the LLC Agreement.
"DIVIDENDS" means distributions on the Company Preferred Securities in the
amounts and in the manner set forth in the LLC Agreement.
"EVENT OF DEFAULT" means a default by the Guarantor on any of its payment
or other obligations under this Guarantee.
"GUARANTEE" has the meaning set forth in the preamble to this Guarantee.
"GUARANTEE ADDITIONAL AMOUNTS" has the meaning set forth in Section 4.07.
"GUARANTEE PAYMENTS" has the meaning assigned to it in Section 4.01.
"GUARANTEE TRUSTEE" means JPMorgan Chase Bank, a
New York banking
corporation, and its successors, in its capacity as trustee under this
Guarantee, until a Successor Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Guarantee by executing a
counterpart hereof and becoming a party hereto, and thereafter means each such
Successor Guarantee Trustee.
"GUARANTOR" has the meaning assigned to it in the preamble to this
Guarantee.
"GUARANTOR CERTIFICATE" has the meaning assigned to it in Section 4.02.
"HOLDER" means any holder, as registered on the books and records of the
Company or the Trust, of Company Preferred Securities or Trust Preferred
Securities, as the case may be; PROVIDED, HOWEVER, that, in determining whether
the holders of the requisite percentage of Company Preferred Securities or Trust
Preferred Securities, as the case may be, have given any request, notice,
consent or waiver hereunder, "HOLDER" shall not include the Guarantor or any
Affiliate of the Guarantor (other than the Trust).
"INDEMNIFIED PERSON" means the Guarantee Trustee, the Initial Holder, any
Affiliate of the Guarantee Trustee, or any officer, director, shareholder,
member, partner, employee, representative, nominee, custodian or agent of the
Guarantee Trustee.
"INITIAL HOLDER" means the Trust as the initial holder of the Company
Preferred Securities.
"INITIAL SUBORDINATED NOTES" means the Subordinated Promissory Notes dated
the date hereof issued by the Guarantor or one of its branches or subsidiaries.
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"INVESTMENT COMPANY ACT" means the U.S. Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"LIABILITIES" means the total liabilities of the Guarantor, on a
consolidated basis, excluding shareholders' equity, as shown in the latest
published audited balance sheet of the Guarantor, all valued in such a manner as
the Guarantor or any liquidator (as the case may be) may determine and
calculated in accordance with Swiss GAAP or any other accounting principles that
the Guarantor may use to prepare its financial statements in the future.
"LIQUIDATION DISTRIBUTION" means, with respect to each $1,000 liquidation
preference of Company Preferred Securities, an amount equal to the lesser of (i)
the Base Liquidation Amount and (ii) an amount calculated as (A) the amount of
remaining assets of the Guarantor determined to be available for distribution in
respect of this Guarantee, the Parity Preferred Shares and the Parity Guarantees
in any insolvency of the Guarantor, without giving effect to any distributions
hereunder or under the terms of any Parity Guarantees, multiplied by (B) a
fraction, (x) the numerator of which is the Base Liquidation Amount as of the
date the liquidation of the Guarantor commenced (whether as a result of a
Bankruptcy Event or otherwise), and (y) the denominator of which is the
aggregate principal or face amount of all claims, without duplication, under the
Company Preferred Securities (determined as if the Company Preferred Securities
were Parity Preferred Shares), the Parity Preferred Shares and the Parity
Guarantees determined to be payable out of such remaining assets of the
Guarantor.
"LLC AGREEMENT" has the meaning assigned to it in the first recital to this
Guarantee.
"Majority (or Other Stated Percentage) in liquidation preference of the
Company Preferred Securities" means, except as provided by the Trust Indenture
Act, a vote by the Holder(s) of more than 66 2/3% (or other stated percentage)
of the aggregate liquidation preference (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Dividends to the date upon which the voting percentages are determined) of all
Company Preferred Securities, voting as a class.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person.
"PARITY GUARANTEE" means any guarantee issued by the Guarantor from time to
time of any equity preferred or preference shares issued by any subsidiary of
the Guarantor from time to time, if such guarantee ranks PARI PASSU with the
Guarantor's obligations under this Guarantee.
"PARITY PREFERRED SHARES" means the most senior ranking equity preferred or
preference shares (if any) outstanding and issued by the Guarantor from time to
time.
"PARITY SECURITIES" means, collectively, the Parity Guarantees, the Parity
Preferred Shares and the Parity Subsidiary Securities.
"PARITY SUBSIDIARY SECURITIES" means any parity securities issued by a
subsidiary of the Guarantor from time to time that are guaranteed by the
Guarantor under a Parity Guarantee.
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"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"POTENTIAL SECURITYHOLDER" has the meaning assigned to it in Section
5.01(d).
"QUALIFIED SUBSIDIARY" means a subsidiary of the Guarantor which satisfies
the conditions to be considered a "company controlled by the parent company"
under Rule 3a-5 of the Investment Company Act, or any successor provision.
"REDEMPTION PRICE" means, for each $[INSERT MINIMUM DENOMINATION OF COMPANY
PREFERRED SECURITIES] liquidation preference of Company Preferred Securities, in
the case of a redemption of Company Preferred Securities pursuant to the LLC
Agreement, the amount determined pursuant to the LLC Agreement.
"RELEVANT JURISDICTION" means Switzerland or [INSERT ANY OTHER RELEVANT
JURISDICTION].
"RELEVANT TAX" means any present or future taxes, duties, assessments or
governmental charges of whatever nature, imposed or levied by or on behalf of
any Relevant Jurisdiction or any authority therein or thereof having the power
to tax.
"RESPONSIBLE OFFICER" means, with respect to the Guarantee Trustee, any
officer within the Corporate Trust Office of the Guarantee Trustee with direct
responsibility for the administration of the Guarantee, including any vice
president, any assistant vice president, any trust officer, any secretary, any
assistant secretary, the treasurer, any assistant treasurer or other officer of
the Guarantee Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"SHARES" means the shares of the Guarantor and any other shares of the
Guarantor's capital stock ranking junior to the Parity Preferred Shares, if any,
in each case issued by the Guarantor from time to time.
"SUBORDINATED NOTES" means the Initial Subordinated Notes and any successor
subordinated notes that constitute the assets of the Company.
"SUCCESSOR GUARANTEE TRUSTEE" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 3.01.
"SWISS GAAP" means the accounting rules of the Swiss Federal Law on Banks
and Savings Banks and the respective Implementing Ordinance, the Federal Banking
Commission guidelines and Swiss GAAP FER Financial Reporting Standards for the
insurance businesses of
Credit Suisse Group, which collectively are the
generally accepted accounting principles for banks and insurance companies,
respectively, in Switzerland.
"TRUST" has the meaning assigned to it in the first recital to this
Guarantee.
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"TRUST AGREEMENT" means the Amended and Restated Trust Agreement, dated as
of ________, 2002 and as from time to time amended, modified or supplemented,
among the Company, as grantor, Chase Manhattan Bank USA, National Association,
as trustee, and the holders from time to time of the Trust Preferred Securities.
"TRUST INDENTURE ACT" means the U.S. Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"TRUST PREFERRED SECURITIES" means [INSERT TITLE OF TRUST PREFERRED
SECURITIES] issued by the Trust.
ARTICLE II
TRUST INDENTURE ACT
Section 2.01. TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee is subject to the provisions of the Trust Indenture Act
that are required to be part of this Guarantee and shall, to the extent
applicable, be governed by such provisions. A term defined in the Trust
Indenture Act has the same meaning when used in this Guarantee, unless otherwise
defined in this Guarantee or unless the context otherwise requires.
(b) If and to the extent that any provision of this Guarantee limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 2.02. LISTS OF HOLDERS OF SECURITIES.
(a) The Guarantee Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders of Company Preferred Securities. If the Guarantee Trustee
is not the Registrar, the Guarantor shall furnish to the Guarantee Trustee
[INSERT DATES], and at such other times as the Guarantee Trustee may request in
writing, a list, in such form and as of such date as the Guarantee Trustee may
reasonably require, containing all the information in the possession or control
of the Registrar, the Guarantor or any of its paying agents other than the
Guarantee Trustee as to the names and addresses of Holders of Company Preferred
Securities.
(b) The Guarantee Trustee shall comply with its obligations under Sections
311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.03. REPORTS BY THE GUARANTEE TRUSTEE. Within 60 days after May 1
of each year, the Guarantee Trustee shall provide to the Holders of the Company
Preferred Securities (and, for so long as the Initial Holder is the Holder of
the Company Preferred Securities, also to the Holders of the Trust Preferred
Securities), such reports as are required by Section 313(a) of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313 of
the Trust Indenture Act. The Guarantee Trustee shall also comply with the other
requirements of Section 313 of the Trust Indenture Act.
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Section 2.04. PERIODIC REPORTS TO GUARANTEE TRUSTEE. The Guarantor shall
provide to the Guarantee Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and shall provide,
within _____ days after the end of each of its fiscal years, the compliance
certificate required by Section 314 of the Trust Indenture Act in the form and
in the manner required by Section 314 of the Trust Indenture Act. Delivery of
such reports, information and documents to the Guarantee Trustee is for
informational purposes only and the Guarantee Trustee's receipt of such shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Guarantor's
compliance with any of its covenants hereunder (as to which the Guarantee
Trustee is entitled to rely exclusively on Officers' Certificates).
Section 2.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Guarantee that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers' Certificate and shall
include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
Section 2.06. EVENTS OF DEFAULT; WAIVER. The Holders of a Majority in
liquidation preference of the Company Preferred Securities may, by vote, on
behalf of the Holders of all of the Company Preferred Securities, waive any past
Event of Default and its consequences except an Event of Default in respect of a
covenant or provision hereof which cannot be modified or amended without the
consent of each Holder of Company Preferred Securities (and, for so long as the
Initial Holder is the Holder of the Company Preferred Securities, also of each
Holder of Trust Preferred Securities). Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Guarantee, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
Section 2.07. EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default, transmit by mail, first class postage prepaid, to the Holders
of the Company Preferred Securities (and, for so long as the Initial Holder is
the Holder of the Company Preferred Securities, also to the Holders of the Trust
Preferred Securities), notices of all Events of Default actually known to a
Responsible Officer of the Guarantee Trustee, unless such defaults have
7
been cured before the giving of such notice; PROVIDED, that, the Guarantee
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer of the Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Company
Preferred Securities or Trust Preferred Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless a Responsible Officer of the Guarantee Trustee shall
have received written notice, or a Responsible Officer of the Guarantee Trustee
charged with the administration of this Guarantee shall have obtained actual
knowledge, of such Event of Default.
Section 2.08. RIGHTS OF HOLDERS.
(a) The Holders of a Majority in liquidation preference of the Company
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of this Guarantee or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee; PROVIDED, that, (1) such direction shall
not be in conflict with any rule of law or with this Guarantee, (2) the
Guarantee Trustee may take any other action deemed proper by the Guarantee
Trustee which is not inconsistent with such direction, and (3) subject to the
provisions of Section 2.10, the Guarantee Trustee shall have the right to
decline to follow any such direction if the Guarantee Trustee in good faith
shall, by a Responsible Officer or Officers of the Guarantee Trustee, determine
that the proceeding so directed would involve the Guarantee Trustee in personal
liability.
(b) If the Guarantee Trustee fails to enforce its rights under this
Guarantee after a Holder of Company Preferred Securities has made a written
request, such Holder of Company Preferred Securities may institute a legal
proceeding directly against the Guarantor to enforce the Guarantee Trustee's
rights under Article IV, without first instituting a legal proceeding against
the Company, the Guarantee Trustee or any other person or entity.
Notwithstanding the foregoing, if the Guarantor has failed to make a Guarantee
Payment, a Holder of Company Preferred Securities may directly institute a
proceeding in such Holder's own name against the Guarantor for enforcement of
Article IV for such payment.
(c) Notwithstanding any other provision of this Agreement, for so long as
the Trust is the Holder of any Company Preferred Securities, any Holder of Trust
Preferred Securities shall have the right, upon the occurrence of an Event of
Default, to institute a suit directly against the Guarantor for enforcement of
its payment and other obligations hereunder with respect to a Corresponding
Amount of Company Preferred Securities.
Section 2.09. CONFLICTING INTERESTS. The [ADD REFERENCE TO ANY RELEVANT
INDENTURES] shall be deemed to be specifically described in this Guarantee for
the purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
Section 2.10. POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE.
(a) This Guarantee shall be held by the Guarantee Trustee for the benefit
of the Holders of the Company Preferred Securities, and the Guarantee Trustee
shall not transfer this Guarantee to any Person except a Holder of Company
Preferred Securities exercising his or her rights
8
pursuant to Section 2.08(b) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of the
Guarantee Trustee has occurred and is continuing, the Guarantee Trustee shall be
entitled to enforce this Guarantee for the benefit of the Holders of the Company
Preferred Securities.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing or waiver of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee, and no implied covenants shall be read into this Guarantee
against the Guarantee Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.06 and is actually known to a
Responsible Officer of the Guarantee Trustee), the Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Guarantee, and use
the same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee, and
the Guarantee Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
Guarantee, and no implied covenants or obligations shall be read into
this Guarantee against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this Guarantee; PROVIDED
that in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Guarantee (but need not confirm or investigate
the accuracy of any mathematical calculations or other facts stated
therein);
9
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a Majority in liquidation amount of the
Company Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Guarantee
Trustee, or the exercise of any trust or power conferred upon the Guarantee
Trustee under this Guarantee; and
(iv) no provision of this Guarantee shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds or
liability, or indemnity, satisfactory to the Guarantee Trustee, against
such expense, risk or liability, is not assured to it under the terms of
this Guarantee.
Section 2.11. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 2.10:
(i) the Guarantee Trustee may conclusively rely, and shall be fully
protected in acting or refraining from acting upon, any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed, sent
or presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by this
Guarantee shall be sufficiently evidenced by an Officers' Certificate;
(iii) whenever, in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Guarantee Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and conclusively rely
upon an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(iv) the Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any rerecording,
refiling or registration thereof) except as required in the administration
of this Guarantee;
(v) the Guarantee Trustee may, at the expense of the Guarantor,
consult with counsel of its selection, and the advice or opinion of such
counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with such
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advice or opinion. Such counsel may be counsel to the Guarantor or the
Guarantee Trustee or any of their Affiliates and may include any of their
employees. The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee from any court
of competent jurisdiction;
(vi) the Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee at the request
or direction of any Holder, unless such Holder shall have provided to the
Guarantee Trustee such security and indemnity, satisfactory to the
Guarantee Trustee, against the costs, expenses (including attorneys' fees
and expenses and the expenses of the Guarantee Trustee's agents, nominees
or custodians) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as may
be requested by the Guarantee Trustee; PROVIDED, that nothing contained in
this Section 2.11(a)(vi) shall be taken to relieve the Guarantee Trustee,
upon the occurrence of an Event of Default, of its obligation to exercise
the rights and powers vested in it by this Guarantee;
(vii) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit but shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(viii) the Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, nominees, custodians or attorneys, and the Guarantee Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders of the Company Preferred Securities, and
the signature of the Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third party shall
be required to inquire as to the authority of the Guarantee Trustee to so
act or as to its compliance with any of the terms and provisions of this
Guarantee, both of which shall be conclusively evidenced by the Guarantee
Trustee or its agent taking such action;
(x) whenever in the administration of this Guarantee the Guarantee
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the
Guarantee Trustee (i) may request written instructions from the Holders of
a Majority in liquidation preference of the Company Preferred Securities,
(ii) may refrain from enforcing such remedy or right or taking such other
action until such written instructions are received and (iii) shall be
protected in conclusively relying on or acting in accordance with such
written instructions; and
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(xi) the Guarantee Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Guarantee. No provision of this Guarantee
shall be deemed to impose any duty or obligation on the Guarantee Trustee
to perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or
acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Guarantee Trustee shall be
construed to be a duty.
Section 2.12. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE. The
recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Guarantee Trustee does not assume any responsibility for
their correctness. The Guarantee Trustee makes no representation as to the
validity or sufficiency of this Guarantee.
ARTICLE III
GUARANTEE TRUSTEE
Section 3.01. GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any state or territory thereof or of the
District of Columbia, and be permitted by the Securities and Exchange
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state,
territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above,
then, for the purposes of this Section 3.01(a)(ii), the combined capital
and surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 3.01(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 3.02(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act, subject to the penultimate
paragraph thereof.
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Section 3.02. APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE TRUSTEE.
(a) Subject to Section 3.02(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor except during an Event of
Default.
(b) The Guarantee Trustee shall not be removed in accordance with Section
3.02(a) until a Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor Guarantee
Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee shall hold office until a Successor Guarantee
Trustee shall have been appointed or until its removal or resignation. The
Guarantee Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Guarantee Trustee and
delivered to the Guarantor, which resignation shall not take effect until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
by instrument in writing executed by such Successor Guarantee Trustee and
delivered to the Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 3.02 within 60 days after
delivery of an instrument of removal or resignation, the Guarantee Trustee
resigning or being removed may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to act
of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation of the
Guarantee Trustee pursuant to this Section 3.02, and before the appointment of
any Successor Guarantee Trustee, the Guarantor shall pay to the Guarantee
Trustee all amounts to which it is entitled to the date of such termination,
removal or resignation.
ARTICLE IV
GUARANTEE
Section 4.01. GUARANTEE.
(a) The Guarantor irrevocably and unconditionally, on a subordinated basis
as provided in Section 5.02, agrees with the Guarantee Trustee, the Initial
Holder and the Holders from time to time of the Company Preferred Securities,
subject to the limitations set forth in this Guarantee, to pay in full to the
Initial Holder and each subsequent Holder of Company Preferred Securities,
whether such rights under this Guarantee are asserted by the Guarantee Trustee
or directly by any such Holder (without duplication of amounts theretofore paid
to the Holders of the Company Preferred Securities by the Company), regardless
of any defense, right of set-off or counterclaim that the Company may have or
assert:
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(i) on each Dividend Payment Date, Dividends due and payable on the
Company Preferred Securities in the amounts and in the manner set forth in
the LLC Agreement;
(ii) on each Redemption Date, the Redemption Price payable with
respect to the Company Preferred Securities called for redemption by the
Company;
(iii) upon any voluntary or involuntary dissolution, liquidation or
winding up of the Company, the Liquidation Distribution payable; and
(iv) any Additional Amounts payable by the Company with respect to
the payment set forth in clauses (i) through (iv), above, under the LLC
Agreement (collectively, the "GUARANTEE PAYMENTS");
PROVIDED that, if a Bankruptcy Event has occurred as to the Guarantor, the
Guarantee Payments payable under clause (i), (ii) and (iii) above of this
Section 4.01 shall be an amount equal to the lesser of (A) the aggregate
amount of Guarantee Payments pursuant to such clause of this Section 4.01
without giving effect to this proviso and (B) an amount calculated as (1)
the remaining assets of the Guarantor in the related bankruptcy or
insolvency proceeding after satisfaction of all claims which, as a matter
of law, are prior to those of holders of this Guarantee or any Parity
Guarantee multiplied by (2) a fraction, (x) the numerator of which is the
aggregate amount of Guarantee Payments pursuant to such clause of this
Section 4.01 without giving effect to this proviso and (y) the denominator
of which is the aggregate principal or face amount of all claims under this
Guarantee and the Parity Guarantees. All Guarantee Payments shall include
interest accrued on such Guarantee Payments, at a rate per annum equal to
the stated Dividend Rate of the Company Preferred Securities, since the
date of the claim asserted under this Guarantee relating to such Guarantee
Payments.
(b) The Guarantor's obligation to make any of the payments listed in (i)
and (ii) of subsection (a) above may be satisfied by direct payment of the
required amounts (which shall be in U.S. dollars) by the Guarantor to the
Holders or by causing the Company to pay such amounts to the Holders.
Section 4.02. DELIVERY OF GUARANTOR CERTIFICATE. As of each (x) Dividend
Payment Date with respect to which the Company has not paid the full amount of
Dividends at the Dividend Rate payable as contemplated by clause (i) of Section
4.01(a) or (y) Redemption Date with respect to which the Company has not paid
the Redemption Price in full, the Guarantor shall deliver an Officers'
Certificate to the Guarantee Trustee within five Business Days after such
Dividend Payment Date or Redemption Date, as applicable, substantially in the
form attached as Exhibit A (the "GUARANTOR CERTIFICATE").
Section 4.03. WAIVER OF NOTICE AND DEMAND. The Guarantor hereby waives
notice of acceptance of this Guarantee and of any liability to which it applies
or may apply, presentment, demand for payment, any right to require a proceeding
first against the Company or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
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Section 4.04. OBLIGATIONS NOT AFFECTED. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Company of any express or implied agreement,
covenant, term or condition relating to the Company Preferred Securities to be
performed or observed by the Company;
(b) the extension of time for the payment by the Company of all or any
portion of the Dividends, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Company Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Company Preferred Securities; PROVIDED that
nothing in this Guarantee shall affect or impair any valid extension;
(c) any failure, omission, delay or lack of diligence on the part of the
Holders of the Company Preferred Securities (or so long as the Initial Holder is
the Holder of the Company Preferred Securities, on the part of the Holders of
the Trust Preferred Securities) to enforce, assert or exercise any right,
privilege, power or remedy conferred on such Holders pursuant to the terms of
the Company Preferred Securities (or Trust Preferred Securities, as applicable),
or any action on the part of the Company (or the Trust, if applicable) granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Company or any of the assets of the
Company;
(e) any invalidity of, or defect or deficiency in, the Company Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 4.04 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
Section 4.05. ACTION AGAINST GUARANTOR. The Guarantor waives any right or
remedy to require that any action be brought first against the Company or any
other person or entity before proceeding directly against the Guarantor.
Section 4.06. INDEPENDENT OBLIGATIONS. The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of the Company with
respect to the Company Preferred Securities, and that the Guarantor shall be
liable as principal and as debtor hereunder to make Guarantee Payments pursuant
to the terms of this Guarantee notwithstanding
15
the occurrence of any event referred to in subsections (a) through (g),
inclusive, of Section 4.04. It is further understood that all rights of a Holder
of a Company Preferred Security against the Guarantor under this Guarantee, and
all corresponding obligations of the Guarantor to such Holder, are separate and
independent of the rights and corresponding obligations between the Guarantor
and the respective other Holders of the Company Preferred Securities. This
Guarantee is a guarantee of payment and not of collection.
[IF GUARANTEE ADDITIONAL AMOUNTS WILL BE PAYABLE INSERT:
Section 4.07. TAXES. All payments in respect of the Guarantee Payments
(including interest accrued thereon, if any) by the Guarantor shall be made
without withholding or deduction for or on account of any Relevant Tax, unless
the withholding or deduction of such Relevant Tax is required by law. In that
event, the Guarantor shall pay, as further Guarantee Payments, such additional
amounts as may be necessary in order that the net amounts received by a Holder
(or a third party on its behalf) after such withholding or deduction will equal
the amount which would have been received in respect of the Guarantee Payments
(including interest accrued thereon, if any) in the absence of such withholding
or deduction ("GUARANTEE ADDITIONAL AMOUNTS"), except that no such Guarantee
Additional Amounts shall be payable to a Holder (or a third party on its behalf)
with respect to any Guarantee Payments (including interest accrued thereon, if
any), (i) to the extent that such Relevant Tax is imposed or levied by virtue of
such Holder (or the beneficial owner of Company Preferred Securities to which
such Guarantee Payments relate) (other than the Trust) having some connection
with the Relevant Jurisdiction, other than being a Holder of Company Preferred
Securities (or beneficial owner of Company Preferred Securities), (ii) to the
extent that such the Relevant Tax is imposed or levied by virtue of such Holder
(or beneficial owner) (other than the Trust) not having made a declaration of
non-residence in, or other lack of connection with, the Relevant Jurisdiction or
any similar claim for exemption, if the Guarantor or its agent has provided the
Holder (or beneficial owner) of such Company Preferred Securities or its nominee
with at least 60 days' prior written notice of any opportunity to make such a
declaration or claim, (iii) more than 30 days after the date on which the
related payments on the Trust Preferred Securities or Company Preferred
Securities become due, except to the extent that the Holders (or beneficial
owners) of the Trust Preferred Securities or Company Preferred Securities would
have been entitled to such Guarantee Additional Amounts on the thirtieth such
day, (iv) to the extent the withholding or deduction is imposed on a payment to
an individual and is required to be made pursuant to any European Union
Directive on the taxation of savings implementing the conclusions of the ECOFIN
Council meeting of 26th-27th November, 2000 or any law implementing or complying
with or introduced in order to conform to, such directive, or (v) to a Holder
(or beneficial owner) who would have been able to avoid such withholding or
deduction of any Relevant Tax by receiving such payment through another paying
agent in a member state of the European Union.
At least 10 days prior to the first Dividend Payment Date and at least 10
days prior to each subsequent Dividend Payment Date if there has been a change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Guarantor shall furnish to the Guarantee Trustee an Officers'
Certificate instructing the Guarantee Trustee as to whether any Guarantee
Payment shall be made to Holders without withholding or deduction for or on
account of any Relevant Tax. If any such withholding or deduction shall be
required, then such Officers' Certificate shall specify by country the amount,
if any, required to be withheld or deducted on such payments to such Holders and
shall certify the fact that Guarantee Additional Amounts will
16
be payable if a Guarantee Payment is due and the amounts so payable to each
Holder, and the Guarantor shall pay to the Guarantee Trustee, in case a
Guarantee Payment is due, the Guarantee Additional Amounts required to be paid
by this Section. The Guarantor covenants to indemnify the Guarantee Trustee for,
and to hold it harmless against, any loss, liability or expense reasonably
incurred without negligence or bad faith on its part arising out of or in
connection with actions taken or omitted by it in reliance on any Officers'
Certificate furnished pursuant to this Section.]
Section 4.08. RIGHTS NOT SEPARATELY TRANSFERABLE. This Guarantee is a
guarantee for the benefit of each Holder from time to time of Company Preferred
Securities with respect to each Company Preferred Security held by such Holder.
Upon transfer of any Company Preferred Securities to a third party, a Holder
thereof shall no longer have any rights hereunder with respect to such Company
Preferred Securities. The rights under this Guarantee with respect to a Company
Preferred Security are not separately transferable from such Company Preferred
Security. The Initial Holder, by its execution of this Guarantee, hereby accepts
the rights under this Guarantee as initial purchaser and acquirer of the Company
Preferred Securities with the understanding that such rights shall be
transferred by operation of law to any subsequent Holder acquiring a Company
Preferred Security from the Initial Holder or from a subsequent Holder of
Company Preferred Securities.
ARTICLE V
LIMITATIONS OF TRANSACTIONS; RANKING
Section 5.01. LIMITATION OF TRANSACTIONS.
(a) The Guarantor, for so long as any Company Preferred Securities remain
outstanding, shall not issue any preferred or preference shares ranking senior
on liquidation to its obligations under this Guarantee or give any guarantee in
respect of any preferred securities or preferred or preference shares issued by
any of its subsidiaries if such guarantee would rank senior to this Guarantee,
unless this Guarantee is amended to give the Holders of the Company Preferred
Securities such rights and entitlements as are contained in or attached to such
other guarantee so that this Guarantee ranks PARI PASSU with such guarantee and
PARI PASSU on liquidation with any declared dividend or declared liquidation
payments of such preferred or preference shares.
(b) The Guarantor shall pay all amounts required to be paid pursuant to
this Guarantee in respect of any Dividends on the Company Preferred Securities
payable in respect of the most recent Dividend Period prior to any dividend or
other payment (except dividends in the form of the Shares) upon the Shares.
(c) The Guarantor, for so long as any Company Preferred Securities or Trust
Preferred Securities remain outstanding, shall not (i) issue any liquidation
preference participation rights (not being capital stock) ranking senior to or
PARI PASSU with the right to liquidation payments under any Parity Preferred
Shares, (ii) create, incur or permit to exist any debt junior to its obligations
under this Guarantee or (iii) create, incur or permit to exist any debt that
ranks PARI PASSU with this Guarantee unless such debt contains a provision
substantially similar to the proviso contained in Section 4.01.
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(d) The Guarantor, for so long as any Company Preferred Securities or Trust
Preferred Securities remain outstanding, shall (i) maintain, or shall cause any
one or more Qualified Subsidiaries (each, a "POTENTIAL SECURITYHOLDER") to
maintain, 100% ownership of the Company Common Securities. The Guarantor may
transfer or permit the transfer of the Company Common Securities from one
Potential Securityholder to another Potential Securityholder; PROVIDED that
prior to such transfer it has received an opinion of a nationally recognized
U.S. law firm experienced in such matters to the effect that (A) the Company
will continue to be treated as a partnership for U.S. federal income tax
purposes and such transfer will not cause the Company to be classified as an
association or publicly traded partnership taxable as a corporation for U.S.
federal income tax purposes, (B) such transfer will not cause the Company or the
Trust to be required to register under the Investment Company Act and (C) such
transfer will not adversely affect the limited liability of the Holders of the
Company Preferred Securities (and so long as the Initial Holder is the Holder of
the Company Preferred Securities, the Holders of the Trust Preferred
Securities).
(e) The Guarantor, for so long as any Company Preferred Securities or Trust
Preferred Securities remain outstanding, (i) shall use its commercially
reasonable efforts to ensure that the Company will not be an association or a
publicly traded partnership taxable as a corporation for U.S. federal income tax
purposes, (ii) shall cause the Company to remain a limited liability company and
not to voluntarily dissolve, wind up, liquidate or be terminated, except as
permitted by the LLC Agreement and (iii) shall use its commercially reasonable
efforts to ensure that the Trust will not be classified as other than a grantor
trust for U.S. federal income tax purposes.
(f) The Guarantor, for so long as any of the Company Preferred Securities
are outstanding, shall, to the fullest extent permitted by law, not permit, or
take any action to cause, the dissolution, liquidation, termination or winding
up of the Company, unless the Guarantor is itself in liquidation.
(g) If the Company Preferred Securities are distributed to Holders of Trust
Preferred Securities in connection with the involuntary or voluntary
dissolution, winding-up or liquidation of the Trust, the Guarantor shall use its
commercially reasonable efforts to cause the Company Preferred Securities to be
listed on such national or foreign securities exchange or similar organization
as the Trust Preferred Securities are then listed or quoted on.
Section 5.02. RANKING.
(a) The Guarantee will constitute a general and unsecured obligation of
Credit Suisse Group and, in liquidation of
Credit Suisse Group, will rank, both
as to payment and in liquidation:
(i) subordinate and junior to all liabilities of the Guarantor
(including those in respect of bonds, notes and debentures) that do not
expressly rank PARI PASSU with the obligations of the Guarantor under this
Agreement); and
(ii) senior to the Shares and any other securities of the Guarantor
expressed to rank junior to the Parity Preferred Shares. The foregoing
liabilities that rank senior to the Guarantee are collectively called
"
CREDIT SUISSE GROUP SENIOR LIABILITIES." [The
18
Guarantee ranks junior to the obligations of the Guarantor under 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, as the trustee, and the Subordinated Indenture
dated _________ between Credit Suisse Group, as the company, and JPMorgan
Chase Bank, as the trustee.]
(b) Payments under this Guarantee (other than payments upon a winding-up or
dissolution, by bankruptcy or otherwise, in Switzerland of the Guarantor) are
conditional upon the Guarantor's not being in default in the payment of Credit
Suisse Group Senior Liabilities.
ARTICLE VI
TERMINATION
Section 6.01. TERMINATION. This Guarantee shall terminate upon, and be of
no further force and effect from the earlier of (i) full payment of the
Redemption Price of all Company Preferred Securities or purchase and
cancellation of all Company Preferred Securities or (ii) upon full payment of
the Liquidation Distribution, plus Additional Amounts thereon, if any, as
payable upon liquidation of the Company. Notwithstanding the foregoing, this
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder of Company Preferred Securities must return
payment of any sums paid under the Company Preferred Securities or under this
Guarantee for any reason whatsoever.
ARTICLE VII
INDEMNIFICATION
Section 7.01. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any loss,
liability, expense, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance with
this Guarantee and in a manner that such Indemnified Person reasonably believed
to be within the scope of the authority conferred on such Indemnified Person by
this Guarantee or by law, except that an Indemnified Person shall be liable for
any such loss, liability, expense, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect to such acts
or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Guarantor and upon such information, opinions, reports
or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Dividends to Holders of Company Preferred Securities might properly be
paid.
Section 7.02. INDEMNIFICATION. The Guarantor agrees to pay to the Guarantee
Trustee from time to time such compensation as shall be agreed to in writing
between the Guarantor and the Guarantee Trustee for all services rendered by it
hereunder and to reimburse the Guarantee Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or
19
made by the Guarantee Trustee in accordance with any provision of this Guarantee
(including the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, willful misconduct or bad faith. The Guarantor
agrees to indemnify each Indemnified Person for, and to hold each Indemnified
Person harmless against, any and all loss, liability, damage, claim or expense
(including taxes other than taxes based on the income of any such Indemnified
Person) incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The obligations of the Guarantor under this Section 7.02 shall
survive the termination of this Guarantee or the earlier resignation or removal
of the Guarantee Trustee.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. SUCCESSORS AND ASSIGNS. All guarantees and agreements
contained in this Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the benefit of
the Holders of the Company Preferred Securities and Trust Preferred Securities
then outstanding.
Section 8.02. AMENDMENTS. Except for those changes (i) required under
Section 5.01(a) above, which may be made unilaterally by the Guarantor without
the consent of the Holders of the Company Preferred Securities, or (ii) provided
for in the last two sentences of this paragraph or the penultimate paragraph of
this Section 8.02, this Guarantee may be modified by the Guarantor and the
Guarantee Trustee only with the prior approval of the Holders of not less than
66 2/3% in liquidation preference of the Company Preferred Securities (excluding
any Company Preferred Securities held by the Guarantor or any of its Affiliates,
other than Company Preferred Securities purchased or acquired by the Guarantor
or its Affiliates in connection with transactions effected by or for the account
of customers of the Guarantor or any of its Affiliates in connection with the
distribution or trading of or market-making in connection with such securities
and except that persons (other than Affiliates of the Guarantor) to whom the
Guarantor or any of its subsidiaries have pledged Company Preferred Securities
may vote or convert with respect to such pledged securities pursuant to the
terms of such pledge). This Guarantee may be amended without the consent of the
Holders of the Company Preferred Securities to (i) cure any ambiguity or correct
any mistake, (ii) correct or supplement any provision in this Guarantee that may
be defective or inconsistent with any other provision of this Guarantee, (iii)
add to the covenants, restrictions or obligations of the Guarantor for the
benefit of the Holders of the Company Preferred Securities or to surrender any
right or power conferred upon the Guarantor under this Guarantee, (iv) evidence
the succession of another entity to the Guarantor and the assumption by any such
successor of the covenants of the Guarantor stated herein, (v) conform to any
change in the Investment Company Act, the Trust Indenture Act or the rules or
regulations of either such Act or any other applicable law and (vi) modify,
eliminate and add to any provision of this Guarantee to such extent as may be
necessary or desirable; PROVIDED that no such amendment made in reliance upon
clause (vi) above shall have a material adverse effect on the rights,
preferences or privileges of the Holders of the Company Preferred Securities
(and so long as the Initial Holder is the Holder of the Company Preferred
Securities, the Holders of the
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Trust Preferred Securities); PROVIDED, FURTHER that no such amendment made in
reliance upon clause (v) shall cause any provision in the Trust Agreement to
become invalid or shall have a material adverse effect on the interests of the
Holders of the Trust Preferred Securities. Except as provided in the preceding
sentence, Sections 4.01, 4.02, [4.07] and the form of Exhibit A may not be
amended without the prior approval of each Holder of the Company Preferred
Securities.
Any amendment to reduce the aggregate liquidation preference of Company
Preferred Securities whose Holders must consent to an amendment as provided in
the preceding paragraph must be approved by each Holder of Company Preferred
Securities.
Any amendment hereof in accordance with this Section 8.02 shall be binding
on all Holders of Company Preferred Securities.
Section 8.03. JUDGMENT CURRENCY INDEMNITY.
(a) If, for the purposes of obtaining judgment in any court, it is
necessary to convert an amount due from the Guarantor under any provision of
this Guarantee to a currency other than U.S. dollars, the parties agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures JPMorgan
Chase Bank could purchase such other currency with U.S. dollars at its
New York
office on the second Business Day preceding the day on which final judgment is
given.
(b) The obligations of the Guarantor in respect of any amount due to the
Guarantee Trustee or any Holders under this Agreement shall, notwithstanding any
judgment in a currency other than U.S. dollars, be discharged only to the extent
that on the Business Day following receipt by the Guarantee Trustee or such
Holders, as the case may be, of any amount adjudged to be so due in such other
currency the Guarantee Trustee or such Holders, as the case may be, may in
accordance with normal banking procedures purchase U.S. dollars with such other
currency.
(c) If the amount of U.S. dollars so purchased is less than the amount
originally due to the Guarantee Trustee or such Holders, as the case may be, in
U.S. dollars, the Guarantor agrees, to the fullest extent that it may
effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify the Guarantee Trustee or such Holders, as the case may
be, against such loss.
(d) If the amount of dollars so purchased exceeds the amount originally due
to the Guarantee Trustee or such Holders, as the case may be, in U.S. dollars,
the Guarantee Trustee and such Holders agree to remit any remaining amount to
the Guarantor.
Section 8.04. ASSIGNMENT OF THE GUARANTOR. The Guarantor may not assign its
obligations under the Guarantee, except in the case of a merger or consolidation
where the Guarantor is not the surviving entity, or a sale, lease or other
transfer of substantially all of its assets, and then only to the entity which
is the survivor of such merger or consolidation or the purchaser in such sale
and which expressly assumes the obligations of the Guarantor hereunder.
Section 8.05. NOTICES. All notices provided for in this Guarantee shall be
in writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
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(a) If given to the Guarantee Trustee, at the Guarantee Trustee's mailing
address set forth below:
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
(b) If given to the Guarantor, at the Guarantor's mailing address set forth
below (or such other address as the Guarantor may give notice of to the Holders
of the Company Preferred Securities):
Credit Suisse Group
Xxxxxxxxxxx 0, X.X. Xxx 0
XX 0000 Xxxxxx, Xxxxxxxxxxx
Attention: General Counsel
Telephone: x00 0 000 0000
With copies to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
Telephone: 000-000-0000
(c) If given to any Holder of Company Preferred Securities, at the address
set forth on the books and records of the Company. All such notices shall be
deemed to have been given when received in person, telecopied with receipt
confirmed, or mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be delivered because of a
changed address of which no notice was given, such notice or other document
shall be deemed to have been delivered on the date of such refusal or inability
to deliver.
Section 8.06. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 8.07. JURISDICTION. Any claim or proceeding brought by the
Guarantee Trustee on behalf of Holders or a Holder to enforce the obligations of
the Guarantor hereunder shall be brought exclusively in a court of competent
jurisdiction in
New York. Any claim or proceeding relating to the application of
Articles II and III, and the definitions of terms as used therein, including,
without limitation, any claims, counter-claims and cross-claims asserted against
the Guarantee Trustee in connection therewith, shall be brought in a court of
competent jurisdiction in the State of
New York.
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This GUARANTEE is executed as of the day and year first above written.
CREDIT SUISSE GROUP, as Guarantor
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Guarantee Trustee
By:
------------------------
Name:
Title:
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EXHIBIT A
[FORM OF GUARANTOR'S CERTIFICATE]
A-1
