Exhibit 4.16


 


LIMITED LIABILITY COMPANY AGREEMENT


 


OF


 


CREDIT SUISSE GROUP CAPITAL (DELAWARE) LLC II


 


This LIMITED
LIABILITY COMPANY AGREEMENT (this “Agreement”) of Credit Suisse Group Capital
(Delaware) LLC II is entered into by Credit Suisse Group, a company
incorporated under the laws of Switzerland (the “Member”).


 


The Member, by
execution of this Agreement, hereby forms a limited liability company pursuant
to and in accordance with the Delaware Limited Liability Company Act (6 Del.C.
§18-101, et seq.), as amended from time to time (the “Act”), and hereby agrees
as follows:


 


1.             Name.
The name of the limited liability company formed hereby is Credit Suisse Group
Capital (Delaware) LLC II (the “Company”).


 


2.             Certificates.
James G. Leyden, Jr., as an authorized person within the meaning of the Act,
shall execute, deliver and file the Certificate of Formation with the Secretary
of State of the State of Delaware. Upon the filing of the Certificate of
Formation with the Secretary of State of the State of Delaware, his powers as
an authorized person shall cease and the Member shall thereafter be designated
as an authorized person within the meaning of the Act. The Member or an Officer
(as defined below) shall execute, deliver and file any other certificates (and
any amendments and/or restatements thereof) necessary for the Company to
qualify to do business in a jurisdiction in which the Company may wish to
conduct business.


 


3.             Purpose.
The Company is formed for the object and purpose of, and the nature of the business
to be conducted and promoted by the Company is, engaging in any lawful act or
activity for which limited liability companies may be formed under the Act.


 


4.             Powers.


 


(a)            In
furtherance of its purposes, but subject to all of the provisions of this Agreement,
the Company shall have the power and is hereby authorized to:


 


(i)             acquire
by purchase, lease, contribution of property or otherwise, own, hold, sell,
convey, transfer or dispose of any real or personal property which may be
necessary, convenient or incidental to the accomplishment of the purpose of the
Company;


 


(ii)           act
as a trustee, executor, nominee, bailee, director, officer, agent or in some
other fiduciary capacity for any person or entity and to exercise all of the
powers, duties, rights and responsibilities associated therewith;


 


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(iii)          take
any and all actions necessary, convenient or appropriate as trustee, executor,
nominee, bailee, director, officer, agent or other fiduciary, including the
granting or approval of waivers, consents or amendments of rights or powers
relating thereto and the execution of appropriate documents to evidence such
waivers, consents or amendments;


 


(iv)          operate,
purchase, maintain, finance, improve, own, sell, convey, assign, mortgage,
lease or demolish or otherwise dispose of any real or personal property which
may be necessary, convenient or incidental to the accomplishment of the
purposes of the Company;


 


(v)           borrow
money and issue evidences of indebtedness in furtherance of any or all of the
purposes of the Company, and secure the same by mortgage, pledge or other lien
on the assets of the Company;


 


(vi)          invest
any funds of the Company pending distribution or payment of the same pursuant
to the provisions of this Agreement;


 


(vii)         prepay
in whole or in part, refinance, recast, increase, modify or extend any
indebtedness of the Company and, in connection therewith, execute any
extensions, renewals or modifications of any mortgage or security agreement
securing such indebtedness;


 


(viii)        enter
into, perform and carry out contracts of any kind, including, without
limitation, contracts with any person or entity affiliated with the Member,
necessary to, in connection with, convenient to, or incidental to the accomplishment
of the purposes of the Company;


 


(ix)           employ
or otherwise engage employees, managers, contractors, advisors, attorneys and
consultants and pay reasonable compensation for such services;


 


(x)            enter
into partnerships, limited liability companies, trusts, associations,
corporations or other ventures with other persons or entities in furtherance of
the purposes of the Company; and


 


(xi)           do
such other things and engage in such other activities related to the foregoing
as may be necessary, convenient or incidental to the conduct of the business of
the Company, and have and exercise all of the powers and rights conferred upon
limited liability companies formed pursuant to the Act.


 


(b)          Notwithstanding
anything in this Agreement to the contrary, without the need for consent of the
Member or any Officer, the Company has the power and authority to and is hereby
authorized to:


 


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(i)            issue
preferred limited liability company interests in the Company (the “Company Preferred
Securities”) and invest such proceeds in subordinated notes or other eligible
investments issued by the Member or one of its branches or subsidiaries;


 


(ii)           issue
common limited liability company interests in the Company (the “Company Common
Securities”); and


 


(iii)          issue
a prospectus pursuant to which the securities listed in (i) may be offered, and
negotiate and execute an underwriting agreement pursuant to which the
securities listed in (i) may be distributed; and the Member, acting alone, or
any two Officers, acting jointly, may, on behalf of the Company, execute and
deliver, and cause the Company (A) to perform its obligations under, (B) to
satisfy any conditions required to be satisfied by the Company as a condition
precedent to the effectiveness of, and (C) to take such other actions as such
Member, acting alone, or such Officers, acting jointly, may deem appropriate
with respect to, such documents.


 


(c)           Notwithstanding
any other provision of this Agreement, the Member, acting alone, and any two
Officers, acting jointly, are authorized to execute and deliver any document on
behalf of the Company without any vote or consent of any other person or
entity.


 


5.             Admission
of Securityholders. Upon the execution of this Agreement, the Member is deemed admitted
as a member of the Company and shall become and be designated as, automatically
and without any further act on the part of any person or entity being
necessary, the holder (the “Common Securityholder”) of the Company Common
Securities. Without execution of this Agreement, upon the payment to the
Company for the Company Preferred Securities being acquired by a person or
entity in connection with the issuance of the Company Preferred Securities
pursuant to the terms of an underwriting agreement among the Company, the
Member and one or more underwriters or initial purchasers, which action shall
be deemed to constitute a request by such person or entity that the books and
records of the Company reflect its admission as a holder (a “Preferred
Securityholder”) of Company Preferred Securities, such person or entity shall
thereupon be admitted to the Company as a Preferred Securityholder and shall be
bound by all the terms and conditions hereof and of the Company Preferred
Securities.


 


6.             Company
Common Securities.


 


(a)           The
Member, as the initial Common Securityholder, shall be deemed to have been
issued 100 Company Common Securities upon its designation as the Common
Securityholder pursuant to Section 5 of this Agreement. Upon issuance as
provided in this Agreement, the Company Common Securities so issued shall be
deemed duly authorized, validly issued, fully paid and nonassessable.


 


(b)           Company
Common Securities shall not be evidenced by any certificate or other written
instrument, but shall only be evidenced by this Agreement.


 


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7.             General
Provisions Regarding Company Preferred Securities. There is hereby authorized
for issuance and sale Company Preferred Securities having an aggregate initial
liquidation preference not to exceed $15,000,000,000. The specific designation,
dividend rate, liquidation preference, redemption terms, voting rights,
exchange limitations and other powers, preferences and special rights and
limitations of the Company Preferred Securities shall be set forth in an
amendment to this Agreement. Upon issuance as provided in this Agreement, the
Company Preferred Securities so issued shall be deemed duly authorized, validly
issued, fully paid and nonassessable. Subject to the express provisions of this
Agreement, the Company shall have authority to fix the terms of the Company
Preferred Securities that may be issued by the Company by an amendment to this
Agreement that shall set forth the terms of such securities including, without
limitation, the following: (1) the specific designation of the Company
Preferred Securities; (2) the number or liquidation preference of Company
Preferred Securities; (3) the dividend rate or rates, or method of its
calculation, the date or dates on which the Company will pay dividends and the
record date for any dividends on the Company Preferred Securities; (4) the
amount or amounts that the Company will pay out of its assets to the holders of
the Company Preferred Securities upon the Company’s liquidation; (5) the obligation
or option, if any, of the Company to purchase or redeem the Company Preferred
Securities and the price or prices (or formula for determining the price) at
which, the period or periods within which, and the terms and conditions upon
which the Company will or may purchase or redeem Company Preferred Securities,
in whole or in part, pursuant to the obligation or option; (6) the voting
rights, if any, of the Company Preferred Securities and Company Common
Securities, including any vote required to amend this Agreement; (7) the
criteria for determining whether and to what extent the Company will be
required to pay dividends on the Company Preferred Securities or will be
prohibited from paying dividends on the Company Preferred Securities; (8) terms
for any optional or mandatory conversion or exchange of Company Preferred
Securities into other securities, including shares of the Member; (9) whether
and to what extent the Company will be required to pay any additional amounts
in respect of withholding taxes; (10) the right, if any, of the Company to
change the dividend preference of the Company Preferred Securities; and (11)
any other relative rights, preferences, privileges, limitations or restrictions
of the Company Preferred Securities not inconsistent with this Agreement or
applicable law. Unless otherwise provided in an amendment to this Agreement,
the Company Preferred Securities shall be perpetual and non-cumulative. The
Company Preferred Securities shall be issued in registered form only. The form
of certificate evidencing the Company Preferred Securities, if any, will be set
forth in an amendment to this Agreement.


 


8.             Principal
Business Office. The principal business office of the Company shall be located
at such location as may hereafter be determined by the Member.


 


9.             Registered
Office. The address of the registered office of the Company in the State of
Delaware is c/o RL&F Service Corp., One Rodney Square, 10th Floor, Tenth
and King Streets, Wilmington, New Castle County, Delaware 19801.


 


10.           Registered
Agent. The name and address of the registered agent of the Company for service
of process on the Company in the State of Delaware is RL&F Service


 


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Corp., One Rodney Square, 10th
Floor, Tenth and King Streets, Wilmington, New Castle County, Delaware 19801.


 


11.           Members.
The name and the mailing address of the Member is set forth in the records of
the Company.


 


12.           Limited
Liability. Except as otherwise provided by the Act, the debts, obligations and liabilities
of the Company, whether arising in contract, tort or otherwise, shall be solely
the debts, obligations and liabilities of the Company, and the Member shall not
be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a member of the Company.


 


13.           Capital
Contributions. The Member will contribute $100.00 to the Company.


 


14.           Additional
Contributions. The Member is not required to make any additional capital
contribution to the Company. However, a member of the Company may make
additional capital contributions to the Company with the written consent of the
Member.


 


15.           Allocation
of Profits and Losses. The Company’s profits and losses shall be allocated to
the Member.


 


16.           Distributions.
Distributions shall be made to the Member at the times and in the aggregate
amounts determined by the Member. Notwithstanding any provision to the contrary
contained in this Agreement, the Company shall not make a distribution to a
member of the Company on account of its interest in the Company if such
distribution would violate Section 18-607 of the Act or other applicable law.


 


17.           Management.
In accordance with Section 18-402 of the Act, management of the Company shall
be vested in the Member. The Member shall have the power to do any and all acts
necessary, convenient or incidental to or for the furtherance of the purposes
described herein, including all powers, statutory or otherwise, possessed by
members of a limited liability company under the laws of the State of Delaware.
The Member has the authority to bind the Company.


 


18.           Officers.
The Member may, from time to time as it deems advisable, appoint officers of
the Company (the “Officers”) and assign in writing titles (including, without
limitation, President, Vice President, Secretary, and Treasurer) to any such
person. Unless the Member decides otherwise, if the title is one commonly used
for officers of a business corporation formed under the Delaware General
Corporation Law, the assignment of such title shall constitute the delegation
to such person of the authorities and duties that are normally associated with
that office. Any delegation pursuant to this Section 18 may be revoked at any
time by the Member. The Member hereby appoints Moez Jamal as the Chief
Executive Officer and President of the Company, Anthony L. Le Conte as the
Secretary and an officer of the


 


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Company, Mark A. Hoyow as an
officer of the Company, Kim Fox-Moertl as an officer of the Company, and
Annette Hunter as an officer of the Company.


 


19.           Other
Business. Notwithstanding any duty otherwise existing at law or in equity, the
Member may engage in or possess an interest in other business ventures
(unconnected with the Company) of every kind and description, independently or
with others, and the Company shall not have any rights in or to such
independent ventures or the income or profits therefrom by virtue of this
Agreement.


 


20.           Exculpation
and Indemnification. No member of the Company or Officer shall be liable to the
Company, or any other person or entity who is bound by this Agreement, for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such member of the Company or Officer in good faith on behalf of the
Company and in a manner reasonably believed to be within the scope of the
authority conferred on such member or Officer by this Agreement, except that a
member of the Company or Officer shall be liable for any such loss, damage or
claim incurred by reason of such member’s or Officer’s willful misconduct. To
the fullest extent permitted by applicable law, a member of the Company or
Officer shall be entitled to indemnification from the Company for any loss,
damage or claim incurred by such member or Officer by reason of any act or
omission performed or omitted by such member or Officer in good faith on behalf
of the Company and in a manner reasonably believed to be within the scope of
the authority conferred on such member or Officer by this Agreement, except
that no member of the Company or Officer shall be entitled to be indemnified in
respect of any loss, damage or claim incurred by such member or Officer by
reason of willful misconduct with respect to such acts or omissions; provided,
however, that any indemnity under this Section 20 shall be provided out of and
to the extent of Company assets only, and no member of the Company shall have
personal liability on account thereof.


 


21.           Assignments.
A member of the Company may assign in whole or in part its limited liability
company interest with the written consent of the Member. If a member of the
Company transfers all of its interest in the Company pursuant to this Section,
the transferee shall be admitted to the Company upon its execution of an instrument
signifying its agreement to be bound by the terms and conditions of this
Agreement. Such admission shall be deemed effective immediately prior to the
transfer, and, immediately following such admission, the transferor member
shall cease to be a member of the Company.


 


22.           Resignation.
A member of the Company may resign from the Company with the written consent of
the Member. If a member of the Company is permitted to resign pursuant to this
Section, an additional member shall be admitted to the Company, subject to
Section 23, upon its execution of an instrument signifying its agreement to be
bound by the terms and conditions of this Agreement. Such admission shall be
deemed effective immediately prior to the resignation, and, immediately
following such admission, the resigning member shall cease to be a member of
the Company.


 


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23.           Admission
of Additional Members. One (1) or more additional members of the Company may be
admitted to the Company with the written consent of the Member.


 


24.           Dissolution.


 


(a)           The
Company shall dissolve, and its affairs shall be wound up upon the first to
occur of the following:  (i) the written
consent of the Member, (ii) the retirement, resignation or dissolution of the
last remaining member of the Company or the occurrence of any other event which
terminates the continued membership of such member in the Company unless the
business of the Company is continued in a manner permitted by the Act, or (iii)
the entry of a decree of judicial dissolution under Section 18-802 of the Act.


 


(b)           The
bankruptcy of the Member will not cause the Member to cease to be a member of
the Company and upon the occurrence of such an event, the business of the
Company shall continue without dissolution.


 


(c)           In
the event of dissolution, the Company shall conduct only such activities as are
necessary to wind up its affairs (including the sale of the assets of the
Company in an orderly manner), and the assets of the Company shall be applied
in the manner, and in the order of priority, set forth in Section 18-804 of the
Act.


 


25.           Separability
of Provisions. Each provision of this Agreement shall be considered separable
and if for any reason any provision or provisions herein are determined to be
invalid, unenforceable or illegal under any existing or future law, such
invalidity, unenforceability or illegality shall not impair the operation of or
affect those portions of this Agreement which are valid, enforceable and legal.


 


26.           Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original of this Agreement.


 


27.           Entire
Agreement. This Agreement constitutes the entire agreement of the Member with
respect to the subject matter hereof.


 


28.           Governing
Law. This Agreement shall be governed by, and construed under, the laws of the
State of Delaware (without regard to conflict of laws principles), all rights
and remedies being governed by said laws.


 


29.           Amendments.
This Agreement may not be modified, altered, supplemented or amended except
pursuant to a written agreement executed and delivered by the Member.


 


IN WITNESS
WHEREOF, the undersigned, intending to be legally bound hereby, has duly
executed this Agreement as of the 24th day of March, 2006. Pursuant to Section
18-201(d) of the Act, this Agreement shall be effective as of March 24,
2006.


 


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  CREDIT SUISSE GROUP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ MARTIN TAUFER

  
	
   

  	
   

  	
  Name:Martin Taufer

  
	
   

  	
   

  	
  Title:Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ CHRISTIAN SCHMID

  
	
   

  	
   

  	
  Name:Christian Schmid

  
	
   

  	
   

  	
  Title:Director

  



 


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