EXHIBIT 4.9


 


AMENDED AND RESTATED TRUST AGREEMENT NO. 1


 


This AMENDED AND RESTATED TRUST AGREEMENT NO. 1, dated as of March 9,
2009 (this “Trust Agreement”), is among (i) CREDIT SUISSE GROUP CAPITAL
(DELAWARE) LLC III, a limited liability company organized under the laws of the
state of Delaware, as depositor (the “Depositor”), (ii) THE BANK OF NEW
YORK MELLON, a New York banking corporation, as property trustee (the “Trustee”)
and (iii) BNY MELLON TRUST OF DELAWARE, a Delaware banking corporation, as
Delaware trustee (the “Delaware Trustee”).


 


WHEREAS, the Depositor and Chase Bank USA, National Association, a
national banking association (“Chase”), entered into a Trust Agreement, dated
as of March 24, 2006 (the “Original Trust Agreement”), whereby Chase was
appointed the trustee of the Trust (as defined below);


 


WHEREAS, the Delaware Trustee is the successor in interest to Chase
under the Original Trust Agreement; and


 


WHEREAS, the Depositor, the Trustee and the Delaware Trustee wish to
amend and restate the Original Trust Agreement;


 


NOW, THEREFORE, The Depositor, the Trustee and the Delaware Trustee
hereby agree that the Original Trust Agreement shall be amended and restated as
follows:


 


1.             The trust created hereby (the “Trust”)
shall be known as “Credit Suisse Group Capital (Delaware) Trust III” in which
name the Trustee, or the Depositor to the extent provided herein, may engage in
the transactions contemplated hereby, make and execute contracts, and sue and
be sued on behalf of the trust.


 


2.             The Depositor hereby assigns,
transfers conveys and sets over to the Trustee the sum of $1,000.00.  The Trustee hereby acknowledges receipt of
such amount in trust from the Depositor, which amount shall constitute the
initial trust estate.  The Trustee hereby
declares that it will hold the trust estate in trust for the Depositor.  It is the intention of the parties hereto
that the Trust created hereby constitute a statutory trust under Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. § 3801, et seq.
(the “Trust Act”), and that this document constitute the governing instrument
of the Trust.  The Trustee and the
Delaware Trustee are hereby authorized and directed to execute and file an
amendment to the certificate of trust in the form of exhibit A attached hereto
with the Delaware Secretary of State in accordance with the provisions of the
Trust Act.


 


3.             The Depositor, the Trustee and the
Delaware Trustee will enter into an amended and restated Trust Agreement,
satisfactory to each such party and substantially in the form included as an
exhibit to the 1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and the issuance of
the preferred securities and common securities referred to therein (collectively,
the “Trust 


 


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Securities”).  Prior to the
execution and delivery of such amended and restated Trust Agreement, neither
the Trustee nor the Delaware Trustee shall have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise.


 


4.             The Depositor, the Trustee and the
Delaware Trustee hereby authorize and direct the Depositor, as agent of the
Trust, (i) to file with the Securities and Exchange Commission (the “Commission”)
and execute, in each case on behalf of the Trust, (a) the Registration
Statement on Form F-3 (the “1933 Act Registration Statement”), including
any pre-effective or post-effective amendments to the 1933 Act Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended, of the preferred securities of the Trust and (b) a Registration
Statement on Form 8-A (the “1934 Act Registration Statement”) (including
all pre-effective and post-effective amendments thereto) relating to the
registration of the preferred securities of the Trust under the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York Stock
Exchange, Inc., The Nasdaq National Market or any other national stock
exchange (each, an “Exchange”) and execute on behalf of the Trust one or more
listing applications and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause
the preferred securities to be listed on any of the Exchanges; (iii) to
file with the Luxembourg Stock Exchange and execute on behalf of the Trust one
or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the preferred securities to be listed on the Luxembourg
Stock Exchange; (iv) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the preferred securities under the securities
or blue sky laws of such jurisdictions as the Depositor, on behalf of the
Trust, may deem necessary or desirable; (v) to execute and deliver letters
or documents to, or instruments for filing with, a depository relating to the
preferred securities of the Trust; and (vi) to execute on behalf of the
Trust one or more underwriting agreements, in customary form, relating to the
preferred securities.


 


5.             The number of trustees initially
shall be two (2) and thereafter the number of trustees shall be such
number as shall be fixed from time to time by a written instrument signed by
the Depositor which may increase or decrease the number of trustees; provided,
however, that to the extent required by the Trust Act, one trustee shall either
be a natural person who is a resident of the State of Delaware or, if not a
natural person, an entity which has its principal place of business in the
State of Delaware and otherwise meets the requirements of applicable Delaware
law.  Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any trustee at any
time.  The trustees may resign upon
thirty (30) days’ prior notice to the Depositor, but such resignation shall not
be effective until the Depositor has appointed a successor trustee and such
successor trustee shall become a trustee hereunder.


 


6.             The recitals contained in this
Trust Agreement shall be taken as statements of the Depositor, and neither the
Trustee nor the Delaware Trustee assumes any responsibility for their
correctness.  Neither the Trustee nor the
Delaware Trustee makes any representation as to the value or condition of the
property of the Trust or any part thereof. 
Neither the Trustee nor 


 


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the Delaware Trustee makes any representation as to the validity or
sufficiency of this Trust Agreement.


 


7.             (a)   The Trustee, the Delaware Trustee and their
respective officers, directors, agents and servants (collectively, the “Fiduciary
Indemnified Persons”) shall not be liable, responsible or accountable in
damages or otherwise to the Trust, the Depositor, the Trustees or any holder of
the Trust Securities for any loss, damage or claim incurred by reason of any
act or omission performed or omitted by the Fiduciary Indemnified Persons in
good faith on behalf of the Trust and in a manner the Fiduciary Indemnified
Persons reasonably believed to be within the scope of authority conferred on
the Fiduciary Indemnified Persons by this Trust Agreement or by law, except
that the Fiduciary Indemnified Persons shall be liable for any such loss,
damage or claim incurred by reason of the Fiduciary Indemnified Person’s
negligence, bad faith or willful misconduct with respect to such acts or
omissions.


 


(b)           Each Fiduciary Indemnified Person
shall be fully protected in relying in good faith upon the records of the Trust
and upon such information, opinions, reports or statements presented to the
Trust by any person as to matters such Fiduciary Indemnified Person reasonably
believes are within such other person’s professional or expert competence and
who, if selected by such Indemnified Person, has been selected by such
Indemnified Person with reasonable care, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which distributions to holders of Trust Securities might properly
be paid.


 


(c)           The Depositor agrees, to the fullest
extent permitted by applicable law, (i) to indemnify and hold harmless
each Fiduciary Indemnified Person, or any of its officers, directors,
shareholders, employees, representatives or agents, from and against any loss,
damage, liability, tax, penalty, expense or claim of any kind or nature whatsoever
incurred by the Fiduciary Indemnified Persons by reason of the creation,
operation or termination of the Trust, except that no Fiduciary Indemnified
Persons shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by the Fiduciary Indemnified Persons by reason of negligence,
bad faith or willful misconduct with respect to such acts or omissions, and (ii) to
advance expenses (including legal fees) incurred by a Fiduciary Indemnified
Person in defending any claim, demand, action, suit or proceeding, from time to
time, prior to the final disposition of such claim, demand, action, suit or
proceeding, upon receipt by the Trust of an undertaking by or on behalf of such
Fiduciary Indemnified Persons to repay such amount if it shall be determined
that such Fiduciary Indemnified Person is not entitled to be indemnified as
authorized in the preceding subsection. 
Promptly after receipt by a Fiduciary Indemnified Person of written
notice of the commencement of any action, such Fiduciary Indemnified Person
will, if a claim in respect thereof is to be made against the Depositor under
this clause (c), notify the Depositor in writing of the commencement thereof,
provided that failure to give such prompt notice shall not impair the obligations
of the Depositor hereunder except to the extent that such failure to provide
notice materially prejudices the Depositor. 
The Depositor shall be entitled to appoint counsel of the Depositor’s
choice at the Depositor’s expense to represent the Fiduciary Indemnified
Persons in any action for which indemnification is sought; provided, however,
that such counsel shall be satisfactory to the Fiduciary Indemnified
Persons.  The Depositor will not, without
the prior written consent of the Fiduciary Indemnified Persons, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding 


 


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in respect of which indemnification may be sought unless such
settlement, compromise or consent includes an unconditional release of each
Fiduciary Indemnified Person from all liability arising out of such claim,
action, suit or proceeding.


 


(d)           The provisions of this Section shall
survive the termination of this Trust Agreement or the earlier resignation or
removal of the Fiduciary Indemnified Persons.


 


8.             This Trust Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Delaware (without regard to conflict of laws principles).


 


9.             This Trust Agreement may be
executed in one or more counterparts.


 


10.           The Trust may dissolve and terminate
without issuing any Trust Securities at the election of the Depositor.  Upon dissolution and at the direction and
expense of the Depositor, the Trustee and the Delaware Trustee shall file a
certificate of cancellation in accordance with the Trust Act.  Any remaining trust estate shall, after
payment of any other expenses of the Trust, be returned to the Depositor.


 


[SIGNATURE PAGE FOLLOWS]


 


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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.


 


	
   

  	
  CREDIT SUISSE GROUP CAPITAL (DELAWARE) LLC
  III, as Depositor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ A. L. Le Conte

  
	
   

  	
  Name:

  	
  A. L. Le Conte

  
	
   

  	
  Title:

  	
  President & Chief Executive
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kim Fox-Moertl

  
	
   

  	
  Name:

  	
  Kim Fox-Moertl

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK MELLON, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kimberly Davidson

  
	
   

  	
  Name:

  	
  Kimberly Davidson

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BNY MELLON TRUST OF DELAWARE, as Delaware
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kristine K. Gullo

  
	
   

  	
  Name:

  	
  Kristine K. Gullo

  
	
   

  	
  Title:

  	
  Vice President

  
				



 


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EXHIBIT A


 

















 


CERTIFICATE OF
AMENDMENT

TO

CERTIFICATE OF TRUST

OF

CREDIT SUISSE GROUP CAPITAL (DELAWARE) TRUST III


 


THIS Certificate of Amendment to Certificate
of Trust of Credit Suisse Group Capital (Delaware) Trust III (the “Trust”) is
being duly executed and filed by the undersigned trustees to amend the
Certificate of Trust of the Trust which was filed on March 24, 2006 (the “Certificate
of Trust”), with the Secretary of State of the State of Delaware under the
Delaware Statutory Trust Act (12 Del. C. § 3801 et seq.)
(the “Act”).


 


1              Name.  The name of the statutory trust is Credit
Suisse Group Capital (Delaware) Trust III.


 


2              Amendment of Trust.  The Certificate of Trust of the Trust is
hereby amended by changing the
name and business address of the trustee of the Trust with a principal place of
business in the State of Delaware to: BNY Mellon Trust of Delaware, White Clay
Center, Route 273, Newark, Delaware 19711.


 


3              Effective Date.  This Certificate of Amendment shall be
effective upon filing.


 


IN WITNESS WHEREOF, the undersigned trustees
of the Trust, have executed this Certificate of Amendment in accordance with Section 3811
of the Act.


 


 


	
   

  	
  BNY MELLON TRUST OF DELAWARE, not in its individual capacity but
  solely as trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kristine K. Gullo

  
	
   

  	
  Name:

  	
  Kristine K. Gullo

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK MELLON, not in its individual capacity but
  solely as trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kimberly Davidson

  
	
   

  	
  Name:

  	
  Kimberly Davidson

  
	
   

  	
  Title:

  	
  Vice President