Exhibit 4.3
SECOND SUPPLEMENTAL
INDENTURE
This SECOND SUPPLEMENTAL INDENTURE (this “Second
Supplemental Indenture”), dated as of June 9, 2023, among CREDIT SUISSE (USA), INC. (formerly CREDIT SUISSE FIRST BOSTON (USA),
INC.), a Delaware corporation (“CS USA”), CREDIT SUISSE GROUP AG, a corporation (Aktiengesellschaft) organized
under the laws of Switzerland (“CSG”), UBS GROUP AG, a corporation (Aktiengesellschaft) organized under the
laws of Switzerland ( “UBS”), CREDIT SUISSE AG, a corporation (Aktiengesellschaft) organized under the laws
of Switzerland (the “Bank Guarantor”) and THE BANK OF NEW YORK MELLON (formerly THE BANK OF NEW YORK), as trustee under
the Indenture referred to herein (the “Trustee”).
RECITALS
WHEREAS, CS USA has previously issued $742,344,000
aggregate principal amount of 7 1/8% Notes due July 15, 2032 (the “Securities”) under a senior indenture, dated as
of June 1, 2001, between CS USA and the Trustee, as amended by the First Supplemental Indenture, dated as of March 26, 2007, among CS
USA, CSG, the Bank Guarantor and the Trustee (as heretofore amended and supplemented, the “Indenture”);
WHEREAS, pursuant to the merger agreement between
UBS and CSG, dated as of March 19, 2023, as amended on April 6, 2023 and on May 22, 2023, CSG and UBS will merge, with UBS being the absorbing
company which shall continue to operate, and CSG being the absorbed company which shall cease to exist (the “Merger”);
WHEREAS, effective upon registration of the Merger
with the Commercial Register of the Canton of Zurich in Switzerland (such date of registration, the “Effective Date”),
CSG will be dissolved and its assets, liabilities and contracts (including its obligations under the CSG Guarantee (as defined below)
and the Indenture) transferred to, and absorbed and taken over by, UBS by operation of Swiss law (Universalsukzession);
WHEREAS, pursuant to Section 5.03 of the Indenture,
UBS desires to assume all of the obligations of CSG on the Guarantee by CSG of the Securities (the “CSG Guarantee”)
and under the Indenture on the terms and conditions set forth in the Indenture and herein with effect as of the Effective Date;
WHEREAS, all conditions and requirements necessary
to make this Second Supplemental Indenture a valid and binding instrument in accordance with the terms of the Indenture have been performed
and fulfilled and the execution and delivery hereof have been in all respects duly authorized;
WHEREAS, Section 9.01(b) of the Indenture provides
that, without the consent of the Holders, CS USA, CSG, the Bank Guarantor and the Trustee may enter into a supplemental indenture to amend
or supplement any of the provisions of the Indenture to comply with Article 5 of the Indenture;
WHEREAS, Section 9.01(h) of the Indenture provides
that, without the consent of the Holders, CS USA, CSG, the Bank Guarantor and the Trustee may enter into a supplemental indenture to amend
or supplement any of the provisions of the Indenture to make any change that does not materially and adversely affect the rights of any
Holder; and
WHEREAS, pursuant to Section 9.05 of the Indenture,
the Trustee is authorized to execute and deliver this Second Supplemental Indenture.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing
and for other good and valuable consideration, the receipt of which is hereby acknowledged, CS USA, the Bank Guarantor, UBS, CSG and the
Trustee mutually covenant and agree for the equal and proportionate benefit of the Holders as follows:
1.
CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2.
AGREEMENT TO ASSUME OBLIGATIONS. Pursuant to and in accordance with Section 5.03 of the Indenture and by operation of Swiss law,
and with effect as of the Effective Date, UBS shall succeed to, and be substituted for, and may exercise every right and power of, CSG
under the CSG Guarantee with the same effect as if UBS had been named as the “Group Guarantor” under the Indenture, the CSG
Guarantee and the Securities. As of the Effective Date, UBS hereby (i) assumes all of CSG’s obligations under the CSG Guarantee
and the Indenture on the terms and subject to the conditions set forth in this Second Supplemental Indenture and in the Indenture and
(ii) undertakes in favor of each Holder to be bound by the terms and conditions of the CSG Guarantee and the provisions of the Indenture
with the same effect as if UBS had been named as the “Group Guarantor” under the Indenture, the CSG Guarantee and the Securities.
For the avoidance of doubt, any references in the Indenture to CS USA as the “Company” under the Indenture, the Bank Guarantee
and the Securities and the Bank Guarantor as the “Bank Guarantor” under the Indenture, the Bank Guarantee and the Securities
remain unchanged.
3.
OPINION OF COUNSEL.
(a)
Section 5.01 (a) of the Indenture is hereby amended and restated in its entirety as follows:
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 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)
Section 5.03 (a) of the Indenture is hereby amended and restated in its entirety as follows:
either (x) such Guarantor shall be the continuing
Person or (y) the Person (if other than such Guarantor) formed by such consolidation or into which such Guarantor is merged or that acquired
or leased such property and assets of such Guarantor shall expressly assume, by a supplemental indenture, executed and delivered to the
Company and to the Trustee, all of the obligations of such Guarantor on the relevant Guarantee and under this Indenture and such Guarantor
shall have delivered to the Trustee an Opinion of Counsel stating that such consolidation, merger, sale, conveyance, transfer, lease or
other disposition 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 valid and binding obligation of such
Guarantor or such successor enforceable against such entity in accordance with its terms, subject to customary exceptions; and
(c)
Section 9.05 of the Indenture is hereby amended and restated in its entirety as follows:
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 9 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 valid and binding obligation
of the Company, enforceable against the Company 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.
4.
GOVERNING LAW; JURISDICTION AND SERVICE OF PROCESS; SOVEREIGN IMMUNITY.
(a)
The laws of the State of New York (without regard to conflicts of laws principles thereof) shall govern this Second Supplemental
Indenture.
(b)
Each of CSG, UBS and the Bank Guarantor agrees that any suit, action or proceeding against it arising out of or based upon the
Indenture, this Second Supplemental Indenture, the Securities or the Guarantees may be instituted in any state or federal court in the
Borough of Manhattan, The City of New York (each, a “Proceeding”), and waives any objection that it may now or hereafter
have to the laying of venue of any such Proceeding and any claim of inconvenient forum, and irrevocably submits to the non-exclusive jurisdiction
of such courts in any such Proceeding. UBS has appointed UBS AG, New York Branch, at 1285 Avenue of the Americas, New York, NY 10019,
as its authorized agent (the “UBS Authorized Agent”) upon whom process may be served in any Proceeding, and it expressly
accepts the non-exclusive jurisdiction of such courts in respect of any such Proceeding. Each of the Bank Guarantor and, until the Effective
Date, CSG, has appointed CS USA, at 11 Madison Avenue, New York, New York 10010, as its authorized agent (the “CS Authorized
Agent” and, together with the UBS Authorized Agent, the “Authorized Agents” and each, an “Authorized
Agent”) upon whom process may be served in any Proceeding, and it expressly accepts the non-exclusive jurisdiction of such courts
in respect of any such Proceeding. Each of CSG, UBS and the Bank Guarantor hereby represents and warrants that its respective Authorized
Agent has accepted such appointment and has agreed to act as said agent for service of process, such appointment to be irrevocable until
the appointment of a successor Authorized Agent in The City of New York for such purpose and such successor’s acceptance of such
appointment shall have occurred. If at any time any Authorized Agent no longer has an office in the Borough of Manhattan, The City of
New York, upon whom process may be served in any Proceeding, each of CSG, UBS or the Bank Guarantor, as applicable, will immediately appoint
an Authorized Agent upon whom such process may be served. Until the Indenture and this Second Supplemental Indenture are terminated or,
with respect to CSG only, until the Effective Date, each of CSG, UBS and the Bank Guarantor shall maintain an Authorized Agent in The
City of New York, and each of CSG, UBS and the Bank Guarantor agrees to take any and all action, including the filing of any and all documents
that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent
shall be deemed, in every respect, effective service of process upon CSG, UBS or the Bank Guarantor, as applicable.
(c)
To the extent that each of CS USA, the Bank Guarantor, UBS and CSG is or may become entitled to claim for itself any immunity from
jurisdiction (sovereign or otherwise) and to the extent that in any jurisdiction there may be attributed to CS USA, the Bank Guarantor,
UBS or CSG, as applicable, such an immunity (whether or not claimed), each of CS USA, the Bank Guarantor, UBS and CSG hereby irrevocably
waives and agrees not to claim any immunity from suit, jurisdiction, execution of a judgment, or attachment or set-off in aid of execution
of a judgment, to which it or its property might otherwise be entitled in any Proceeding, or any suit, action or proceeding against it
arising out of or based upon the Indenture, this Second Supplemental Indenture, the Securities or the Guarantees which may be instituted
in any competent court in Switzerland, but only to the extent necessary for enforcement of the obligations of CS USA, the Bank Guarantor,
UBS or CSG hereunder, as applicable. The agreements and waiver contained in this Section 3 are intended to be effective upon the execution
of this Second Supplemental Indenture without any further act by CS USA, the Bank Guarantor, UBS or CSG before any such court and introduction
of a true copy of this Second Supplemental Indenture into evidence shall be conclusive and final evidence of such waiver.
(d)
Each of the parties hereto hereby waives any right to stay or dismiss any action or proceeding under or in connection with this
Second Supplemental Indenture brought before the foregoing courts on the basis of forum non-conveniens.
5.
TRUST INDENTURE ACT OF 1939. This Second Supplemental 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.
6.
COUNTERPARTS. The parties may sign any number of copies of this Second Supplemental Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement. The exchange of copies of the Second Supplemental Indenture and of signature pages
by facsimile or PDF transmission shall constitute effective execution and delivery of the Second Supplemental Indenture as to the parties
hereto. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
The words “execution,” “signed,” “signature,” “delivery,” and words of like import in
or relating to this Second Supplemental Indenture or any document to be signed in connection with this Second Supplemental Indenture shall
be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping
system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
7.
EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
8.
THE TRUSTEE. The recitals contained herein shall be taken as statements of CS USA, the Bank Guarantor, UBS and CSG 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 makes any
representation as to the validity, sufficiency or adequacy of this Second Supplemental Indenture.
9.
PARTIES. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Second Supplemental Indenture
or the Indenture or any provision herein or therein contained.
10.
Severability. In case any provision
in this Second Supplemental Indenture 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 and such provision shall be ineffective only to the extent of such invalidity,
illegality or unenforceability.
11.
Ratification of Indenture; Supplemental Indenture
Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect. This Second Supplemental Indenture shall form a part of the
Indenture and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby.
12.
NOTICES. Section 10.02 of the Indenture is hereby amended by replacing the first paragraph thereof, the references to addresses
and the subparagraph immediately thereafter with the following:
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 among
CS USA, CSG, UBS, the Bank Guarantor and the Trustee if sent by facsimile or electronic transmission, when transmission is confirmed,
in each case addressed as follows:
If to CS USA:
Credit Suisse (USA), Inc.
Eleven Madison Avenue
New York, New York 10010
Facsimile No: (212) 325-8227
Attention: Corporate Treasury Department
If to CSG:
Credit Suisse Group AG
Paradeplatz 8
8001 Zurich, Switzerland
Attention: Legal Counsel
Telephone No.: +41 44 333 1111
If to UBS:
UBS Group AG
Bahnhofstrasse 45
8001 Zurich, Switzerland
Email: OL-GT-Funding@ubs.com
Attention: Group Treasury
If to the Bank Guarantor:
Credit Suisse AG
Paradeplatz 8,
8001 Zurich, Switzerland
Attention: Legal Counsel
Telephone No.: +41 44 333 1111
If to the Trustee:
The Bank of New York Mellon
240 Greenwich Street, Floor 7E
New York, New York 10286
Facsimile No.: (212) 815-5704
CS USA, CSG, UBS, the Bank Guarantor or the Trustee
by written notice to the other parties hereto may designate additional or different addresses or facsimile numbers for subsequent notices
or communications.
IN WITNESS WHEREOF, the parties hereto have caused
this Second Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| CREDIT SUISSE (USA), INC., |
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| as the Company under the Indenture, |
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| By: |
/s/ Elizabeth Lynch |
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Name: Elizabeth Lynch |
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Title: Treasurer |
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IN WITNESS WHEREOF, the parties hereto have caused
this Second Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| CREDIT SUISSE GROUP AG, |
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| as the existing Group Guarantor under
the Indenture, |
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| By: |
/s/ Christopher Chadie |
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Name: Christopher Chadie |
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Title: Authorized Person |
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| By: |
/s/ Noah Lee |
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Name: Noah Lee |
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Title: Authorized Person |
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IN WITNESS WHEREOF, the parties hereto have caused
this Second Supplemental Indenture to be duly executed and attested, all as of the date first above written.
CREDIT SUISSE AG,
as the Bank Guarantor under the Indenture,
| By: |
/s/
Christopher Chadie |
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Name: Christopher Chadie |
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Title: Authorized Person |
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| By: |
/s/ Noah Lee |
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Name: Noah Lee |
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Title: Authorized Person |
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IN WITNESS WHEREOF, the parties hereto have caused
this Second Supplemental Indenture to be duly executed and attested, all as of the date first above written.
UBS GROUP AG,
as the successor Group Guarantor under the Indenture,
| By: |
/s/ Danial Taylor |
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Name: Daniel Taylor |
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Title: Authorized Person |
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| By: |
/s/ Dean Robson |
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Name: Dean Robson |
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Title: Authorized Person |
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IN WITNESS WHEREOF, the parties hereto have caused
this Second Supplemental Indenture to be duly executed and attested, all as of the date first above written.
THE BANK OF NEW YORK MELLON,
as the Trustee
| By: |
/s/ Janet Lee |
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Name: Janet Lee |
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Title: Vice President |
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