Exhibit 4.6
LIMITED LIABILITY COMPANY AGREEMENT
OF
CREDIT SUISSE GROUP CAPITAL (DELAWARE) LLC I
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") of Credit
Suisse Group Capital (Delaware) LLC I 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. ss.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 I (the "Company").
2. Certificates. Xxxxx X. Xxxxxx, Xx., 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;
(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:
(i) issue preferred limited liability company interests in the
Company (the "Company Preferred Securities") and invest such proceeds in
subordinated notes 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
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(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 or any Officer 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 or
Officer 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.
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 $2,000,000,000. 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
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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;
(4) the obligation, if any, of the Company to purchase or redeem the Company
Preferred Securities and the price or prices 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; (5) the voting rights, if any, of the Company
Preferred Securities and Company Common Securities, including any vote
required to amend this Agreement; (6) 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; (7) terms for any optional or mandatory
conversion or exchange of Company Preferred Securities into other securities;
(8) whether and to what extent the Company will be required to pay any
additional amounts in respect of withholding taxes; (9) the right, if any, of
the Company to change the dividend preference of the Company Preferred
Securities; and (10) 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 Xxxxxx Square,
10th Floor, Tenth and Xxxx Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx
00000.
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 Corp., One Xxxxxx Square, 10th Floor, Tenth and Xxxx Xxxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
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.
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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 Xxxxxxx Xx Xxxxx as the Chief Executive
Officer and President of the Company, Xxxxxx X. Xxxx as an officer of the
Company, Xxxxx Xxxxxxxxx as an officer of the Company, and Xxxxxxx X.
Xxxxxxxxxx as Secretary of the Company.
19. Other Business. 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. 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 has an
interest in the Company, 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
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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.
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 Member or the occurrence
of any other event which terminates the continued membership of the 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,
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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.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Agreement as of the 4th day of October, 2002.
Pursuant to Section 18-201(d) of the Act, this Agreement shall be effective as
of October 2, 2002.
CREDIT SUISSE GROUP
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Director
By: /s/ Xxxxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
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