UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Form 6-K

 

 

REPORT OF FOREIGN PRIVATE ISSUER

PURSUANT TO RULE 13a-16 OR 15d-16

UNDER THE SECURITIES EXCHANGE ACT OF 1934

For the month of May 2013

Commission File Number 1-15242

 

 

DEUTSCHE BANK CORPORATION

(Translation of Registrant’s Name Into English)

 

 

Deutsche Bank Aktiengesellschaft

Taunusanlage 12

60325 Frankfurt am Main

Germany

(Address of Principal Executive Office)

 

 

Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F: Form 20-F   x Form 40-F   ¨

Indicate by check mark whether the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):   ¨

Indicate by check mark whether the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):   ¨

 

 

 


Explanatory note

This Report on Form 6-K contains the following exhibits, which are hereby incorporated by reference as Exhibits 1.6, 4.17, 4.18, 5.4 and 5.5, respectively, to the Registration Statement of Deutsche Bank Aktiengesellschaft on Form F-3, Registration No. 333-184193, as most recently amended on May 21, 2013.

Exhibit 1.6 : Purchase Agreement relating to Fixed to Fixed Reset Rate Subordinated Tier 2 Notes of Deutsche Bank Aktiengesellschaft, dated as of May 21, 2013, among Deutsche Bank Aktiengesellschaft, Deutsche Bank Securities Inc. and the other managers named therein.

Exhibit 4.17 : First Supplement Subordinated Indenture, dated as of May 24, 2013, among Deutsche Bank Aktiengesellschaft, as Issuer, Wilmington Trust, National Association, as Trustee, and Deutsche Bank Trust Company Americas, as Paying Agent, Transfer Agent and Registrar and Authenticating Agent.

Exhibit 4.18 : Form of Fixed to Fixed Reset Rate Subordinated Tier 2 Notes due 2028 of Deutsche Bank Aktiengesellschaft (included in Exhibit 4.17).

Exhibit 5.4 : Opinion of Cleary Gottlieb Steen and Hamilton LLP.

Exhibit 5.5 : Opinion of Group Legal Services of Deutsche Bank Aktiengesellschaft.

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

    D EUTSCHE B ANK A KTIENGESELLSCHAFT
Date: May 24, 2013    
    By:  

/s/ Joseph Rice

    Name:   Joseph Rice
    Title:   Managing Director
    By:  

/s/ Joseph C. Kopec

    Name:   Joseph C. Kopec
    Title:   Managing Director and Associate General Counsel

 

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Exhibit 1.6

DEUTSCHE BANK AG

 

 

PURCHASE AGREEMENT

U.S. $1,500,000,000

Fixed to Fixed Reset Rate

Subordinated Notes

 

 

May 21, 2013

 


PURCHASE AGREEMENT

DEUTSCHE BANK AG , a stock corporation organized under the laws of the Federal Republic of Germany (the “ Bank ”),

and

DEUTSCHE BANK SECURITIES INC. (in such capacity, the “ Lead Manager ”),

and

the other Managers named in Article 2 hereof (hereinafter, together with the Lead Manager, the “ Managers ”),

agree as follows:

ARTICLE 1

( TERMS, PURPOSE AND LEGAL PREREQUISITES )

(1) The Bank shall issue U.S. $1,500,000,000 Fixed to Fixed Reset Rate Subordinated Notes (the “ Notes ”), under a subordinated indenture (the “ Subordinated Indenture ”) comprising a base subordinated indenture entered into on May 21, 2013 among the Bank, Wilmington Trust, N.A., as trustee (the “ Trustee ”) and Deutsche Bank Trust Company Americas (“ DBTCA ”), as initial principal paying agent, issuing agent and registrar, and a supplement thereto expected to be entered into on or about May 24, 2013 among the Bank, the Trustee and DBTCA.

(2) The Bank understands that the Managers propose to make a public offering of the Notes as soon as the Managers deem advisable after this Agreement has been executed and delivered and the Subordinated Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the “ Trust Indenture Act ”). The Bank has filed with the Securities and Exchange Commission (the “ Commission ”) an automatic shelf registration statement on Form F-3 (No 333-184193) under the Securities Act of 1933, as amended (the “ Securities Act ”), in respect of, among others, the Notes, which registration statement became effective upon filing under Rule 462(e) of the rules and regulations of the Commission (the “ Securities Act Regulations ”). Such registration statement contains a base prospectus in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement (the “ Base Prospectus ”), to be used in connection with the public offering and sale of the Notes. Any preliminary prospectus supplement to the Base Prospectus that describes the Notes and the offering thereof and is used prior to filing of the Prospectus is called, together with the Base Prospectus, a “ preliminary prospectus ”. The term “ Prospectus ” means the final prospectus supplement relating to the Notes, together with the Base Prospectus, that is filed pursuant to Rule 424(b) of the Securities Act Regulations after the date and time of execution and delivery of this Agreement, but does not include any “free writing prospectus” (as such term is used in Rule 405 of the Securities Act Regulations). Any preliminary prospectus and Prospectus shall be deemed to include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Securities Act, any reference to any amendment or supplement to any preliminary prospectus or Prospectus shall be deemed to include any documents filed after the date of such preliminary prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder

 

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(collectively, the “ Exchange Act ”), and incorporated by reference in such preliminary prospectus or Prospectus, as the case may be. Such registration statement, at any given time, including the amendments thereto to such time, the exhibits and any schedules thereto at such time, the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Securities Act at such time and the documents otherwise deemed to be a part thereof or included therein by Securities Act Regulations, is herein called the “ Registration Statement .” For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to refer to the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“ EDGAR ”).

All references in this Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in or otherwise deemed by Securities Act Regulations to be a part of or included in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be.

ARTICLE 2

( PURCHASE AND SALE OF THE NOTES )

Each of the Managers shall purchase Notes in the aggregate amount set forth opposite its name in the following table, on May 21, 2013, at the price of 100% of their principal amount, subject to the terms and conditions hereof.

 

Manager

   Commitments in $  

Deutsche Bank Securities Inc.

   $ 1,215,000,000   

ABN AMRO Securities (USA) LLC

   $ 15,000,000   

Banco Bilbao Vizcaya Argentaria, S.A.

   $ 15,000,000   

Banca IMI S.p.A.

   $ 15,000,000   

Merrill Lynch, Pierce, Fenner & Smith Incorporated

   $ 15,000,000   

BB&T Capital Markets, a division of BB&T Securities, LLC

   $ 15,000,000   

Commerz Markets LLC

   $ 15,000,000   

Credit Agricole Securities (USA) Inc.

   $ 15,000,000   

Credit Suisse Securities (USA) LLC

   $ 15,000,000   

DZ BANK AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main

   $ 15,000,000   

ING Bank N.V. Belgian Branch

   $ 15,000,000   

Lloyds Securities Inc.

   $ 15,000,000   

RB International Markets (USA) LLC

   $ 15,000,000   

Regions Securities LLC

   $ 15,000,000   

Scotia Capital (USA) Inc.

   $ 15,000,000   

SEB Enskilda, Inc.

   $ 15,000,000   

SMBC Nikko Capital Markets Limited

   $ 15,000,000   

SG Americas Securities, LLC

   $ 15,000,000   

Swedbank AB (publ)

   $ 15,000,000   

UniCredit Bank AG

   $ 15,000,000   
  

 

 

 

Total

   $ 1,500,000,000   
  

 

 

 

 

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ARTICLE 3

( SELLING RESTRICTIONS )

(1) European Economic Area : In relation to each member state of the European Economic Area which has implemented the Prospectus Directive (each, a “ Relevant Member State ”), each of the Managers has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “ Relevant Implementation Date ”) it has not made and will not make an offer of the Notes in the Relevant Member State except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Notes to the public in that Relevant Member State at any time under the following exemptions under the Prospectus Directive:

 

(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;

 

(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provisions of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the relevant dealer or dealers nominated by the Bank for any such offer;

 

(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive;

provided that no such offer of Notes referred to in (b) or (c) above shall require the Bank or any Manager to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive.

For the purposes of this provision, the expression an “offer of the Notes to the public” in relation to any Notes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe the Notes, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State; the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in the Relevant Member State; and the expression “2010 PD Amending Directive” means Directive 2010/73/EU.

(2) United Kingdom : Each of the Managers represents, warrants and agrees that:

 

(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000 (the “ FSMA ”)) received by it in connection with the issue or sale of any Notes in circumstances in which section 21(1) of the FSMA does not apply to the Bank; and

 

(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom.

 

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(3) People’s Republic of China : Each of the Managers represents, warrants and agrees that the Prospectus will not be circulated or distributed in the People’s Republic of China (“ China ”) and the Notes will not be offered or sold, to any person for re-offering or resale directly or indirectly to any resident of China except pursuant to applicable laws and regulations of China. For the purpose of this paragraph, China does not include Taiwan or the special administrative regions of Hong Kong and Macau.

(4) Hong Kong : Each of the Managers represents, warrants and agrees that this offer is not being made in Hong Kong, by means of any document, other than (1) to persons whose ordinary business it is to buy or sell shares or debentures (whether as principal or agent); (2) to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap. 571) of Hong Kong (the “SFO”) and any rules made under the SFO; or (3) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies Ordinance (Cap. 32) of Hong Kong (the “CO”) or which do not constitute an offer to the public within the meaning of the CO.

Each of the Managers represents, warrants and agrees that there is no advertisement, invitation or document relating to the Notes which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the laws of Hong Kong) other than with respect to notes which are or are intended to be disposed of only to persons outside Hong Kong or only to the persons or in the circumstances described in the preceding paragraph.

(5) Japan : Each of the Managers represents, warrants and agrees that the Notes will not be offered or sold and will not be offered or sold, directly or indirectly, in Japan or to or for the account of any resident of Japan (including any corporation or other entity organized under the laws of Japan), except (i) pursuant to an exemption from the registration requirements of the Financial Instruments and Exchange Law and (ii) in compliance with any other applicable requirements of Japanese law.

(6) Singapore : Each of the Managers represents, warrants and agrees that neither Prospectus nor any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Notes will be circulated or distributed, nor will the Notes be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to the public or any member of the public in Singapore other than in circumstances where the registration of a prospectus is not required and thus only (1) to an institutional investor or other person falling within section 274 of the Securities and Futures Act, (2) to a relevant person (as defined in section 275 of the Securities and Futures Act) or to any person pursuant to section 275(1A) of the Securities and Futures Act and in accordance with the conditions specified in section 275 of that Act, or (3) pursuant to, and in accordance with the conditions of, any other applicable provision of the Securities and Futures Act. Each of the Managers represents, warrants and agrees that no person receiving a copy of the Prospectus may treat the same as constituting any invitation to him/her, unless in the relevant territory such an invitation could be lawfully made to him/her without compliance with any registration or other legal requirements or where such registration or other legal requirements have been complied with. Each of the Managers represents, warrants and agrees that each of the following relevant persons specified in Section 275 of the Securities and Futures Act who has subscribed for or purchased the Notes, namely a person who is:

 

(a) a corporation (which is not an accredited investor) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor, or

 

(b) a trust (other than a trust the trustee of which is an accredited investor) whose sole purpose is to hold investments and of which each beneficiary is an individual who is an accredited investor, should note that securities of that corporation or the beneficiaries’ rights and interest in that trust may not be transferred for 6 months after that corporation or that trust has acquired the Notes under Section 275 of the Securities and Futures Act pursuant to an offer made in reliance on an exemption under Section 275 of the Securities and Futures Act unless (i) the transfer is made only to institutional investors, or relevant persons as defined in Section 275(2) of that Act, or arises from an offer referred to in Section 275(1A) of that Act (in the case of a corporation) or in accordance with Section 276(4)(i)(B) of that Act (in the case of a trust); (ii) no consideration is or will be given for the transfer; or (iii) the transfer is by operation of law.

 

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(7) South Korea : Each of the Managers represents, warrants and agrees that the Notes will not be offered, sold and delivered directly or indirectly, or offered or sold to any person for re-offering or resale, directly or indirectly, in South Korea or to any resident of South Korea except pursuant to the applicable laws and regulations of South Korea, including the Financial Investment Services and Capital Markets Act and the Foreign Exchange Transaction Law and the decrees and regulations thereunder. Each of the Managers represents, warrants and agrees that the Notes will not be re-sold to South Korean residents unless the purchaser of the Notes complies with all applicable regulatory requirements (including but not limited to government approval requirements under the Foreign Exchange Transaction Law and its subordinate decrees and regulations) in connection with their purchase.

(8) Switzerland : Each of the Managers represents, warrants and agrees that the Notes will not be offered to the public in or from Switzerland, but only to a selected and limited circle of investors who do not subscribe to the Notes with a view to distribution.

(9) Taiwan : Each of the Managers represents, warrants and agrees that the Notes will not be offered or sold in the Republic of China (“ Taiwan ”) through a public offering or in any manner which would constitute an offer within the meaning of the Securities and Exchange Act of Taiwan or would otherwise require registration with or the approval of the Financial Supervisory Commission of Taiwan. Each of the Managers represents, warrants and agrees that no person or entity in Taiwan has been authorized to offer or sell the Notes in Taiwan.

(10) General : In addition to the specific restrictions set out above, each of the Managers severally represents, warrants and agrees that it will not take any action (including without limitation, the possession or distribution of the Prospectus or any other offering document or any publicity or other material relating to the Notes) in any country or jurisdiction outside of the United States where such action would (i) result in any violation of applicable law or (ii) cause the issuance of the Notes to be considered an offering to the public under applicable law.

 

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ARTICLE 4

( REPRESENTATIONS AND WARRANTIES )

(1) The Bank represents and warrants (in addition to the representations and warranties contained in the selling restrictions set out in Article 3) to each of the Managers that:

 

(a) the Registration Statement became effective upon filing under Rule 462(e) of the Securities Act Regulations (“ Rule 462(e) ”) on 28 September 2012, and any post-effective amendment thereto also became effective upon filing under Rule 462(e). No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and is in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Bank, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.

Any offer that is a written communication relating to the Notes made prior to the filing of the Registration Statement by the Bank or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of the Securities Act Regulations) that is an offer for purposes of Rule 163 of the Securities Act Regulations (“ Rule 163 ”) and that is required to be filed, has been filed with the Commission in accordance with the exemption provided by Rule 163 and otherwise complied with the requirements of Rule 163, including without limitation the legending requirement, to qualify such offer for the exemption from Section 5(c) of the Securities Act provided by Rule 163.

At the respective times the Registration Statement and each amendment thereto became or becomes effective, at each deemed effective date with respect to the Managers pursuant to Rule 430B(f)(2) of the Securities Act Regulations and on the Closing Date (as defined under Article 6(2) below), the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act and the Securities Act Regulations and the Trust Indenture Act and the rules and regulations of the Commission under the Trust Indenture Act (the “ Trust Indenture Act Regulations ”), and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.

Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued and on the Closing Date, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

Each preliminary prospectus (including the prospectus or prospectuses filed as part of the Registration Statement or any amendment thereto) complied when so filed in all material respects with the Securities Act Regulations, and the copy of each preliminary prospectus and the Prospectus delivered to the Managers for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. The copy of the Prospectus delivered to the Managers for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. As of the Time of Sale (as defined below), the Issuer Free Writing Prospectus(es) (as defined below) issued at or prior to the Time of Sale and the Statutory Prospectus (as defined below), all considered together (collectively, the “ General Disclosure Package ”), did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

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As used in this subsection and elsewhere in this Agreement:

Issuer Free Writing Prospectus ” means an “issuer free writing prospectus,” as defined in Rule 433 of the Securities Act Regulations (“ Rule 433 ”).

Statutory Prospectus ” as of any time means the Base Prospectus relating to the Notes, including any preliminary or other prospectus supplement deemed to be a part thereof, as amended or supplemented at that time.

Time of Sale ” means 12:45 p.m. (Eastern time) on May 21, 2013 or such other time as agreed by the Bank and the Managers.

Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Notes or until any earlier date that the Bank notified or notifies the Managers as described in Article 5(5), did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified. The representations and warranties in this subsection shall not apply to (i) any statements in or omissions from the Registration Statement, the Prospectus, any preliminary prospectus or any Issuer Free Writing Prospectus, or any amendments or supplements to any of such documents made in reliance upon and in conformity with written information furnished to the Bank by the Managers expressly for use therein or (ii) that part of the Registration Statement which constitutes the Statements of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee, of The Bank of New York Mellon and of Law Debenture Trust Company of New York, as trustees.

 

(b) the documents incorporated by reference in the Registration Statement and the Prospectus pursuant to Item 6 of Form F-3 under the Securities Act, at the time they were or hereafter are filed or submitted with the Commission prior to the end of the Closing Date, complied and will comply in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder (the “ Exchange Act Regulations ”) and, when read together with the other information in the Prospectus, (a) at the time the Registration Statement became effective, (b) at the earlier of the time the Prospectus was first used and the date and time of the first contract of sale of Notes in this offering and (c) on the Closing Date, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;

 

(c) The Bank is duly incorporated and validly existing under the laws of the Federal Republic of Germany, with full power and authority to own its properties and conduct its business as described in the Prospectus and is lawfully qualified to do business in those jurisdictions in which business is conducted by it;

 

(d) this Agreement has been, or on the Closing Date, will have been, duly authorized, executed and delivered by the Bank and constitutes, or on the Closing Date, will constitute, valid and legally binding obligations of the Bank, enforceable in accordance with its terms;

 

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(e) the Notes (as defined in the Prospectus) have been duly authorized by the Bank and, when duly executed, issued and delivered in accordance with the terms of this Agreement and the Subordinated Indenture, will constitute valid and legally binding obligations of the Bank, enforceable in accordance with their terms;

 

(f) no action or thing is required to be taken, fulfilled or done (including without limitation the obtaining of any consent or licence or the making of any filing or registration) for the issue of the Notes or the compliance by the Bank with the terms of the Notes and this Agreement, except for those which have been, or will prior to the Closing Date, obtained and are, or will on the Closing Date, be, in full force and effect;

 

(g) the execution and delivery of this Agreement, the issue of the Notes and compliance with the terms of this Agreement do not and will not (i) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the Bank’s constitutive documents or any indenture, trust deed, mortgage or other agreement or instrument to which the Bank is a party or by which the Bank or any of its properties is bound, or (ii) infringe any existing applicable law, rule, regulation, judgement, order or decree of any government, governmental body or court or regulatory body, of or in the United States or Germany having jurisdiction over the Bank or any of its properties;

 

(h) the statements that are contained in the Prospectus are in every material respect accurate and not misleading, there are, and will be, no other facts the omission of which would make any statement in the Prospectus misleading in any material respect, and all reasonable enquiries have been, and will have been, made by the Bank to ascertain such facts and to verify the accuracy of all such information and statements;

 

(i) there are no contracts or documents which are required to be described in the Registration Statement, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so described and filed as required;

 

(j) neither the Bank nor any of its affiliates (with the exception of the Lead Manager as set forth in the Prospectus) have taken, nor will the Bank or any affiliate take, directly or indirectly, any action which is designed to or which has constituted or which would be expected to cause or result in stabilization or manipulation of the price of any security of the Bank with the purpose of facilitating the sale or resale of the Notes;

 

(k) the Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the Securities Act, and the Bank is not the subject of a pending proceeding under Section 8A of the Securities Act in connection with the offering of the Notes;

 

(l)

(A) at the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the time the Bank or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities Act Regulations) made any offer relating to the Notes in reliance on the exemption of Rule 163 of the Securities Act Regulations and (D) at the date hereof, the Bank was and is a “well-known seasoned issuer” as defined in Rule 405 of the Securities Act Regulations (“ Rule 405 ”), including not having been and

 

9


  not being an “ineligible issuer” as defined in Rule 405. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405, and the Notes, since their registration on the Registration Statement, have been and remain eligible for registration by the Bank on a Rule 405 “automatic shelf registration statement”. The Bank has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act Regulations objecting to the use of the automatic shelf registration statement form;

 

(m) the financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related supplemental financial information, schedules and notes, present fairly in all material respects the financial position of the Bank and its consolidated subsidiaries on the basis stated in the Registration Statement at the dates indicated and the statement of operations, stockholders’ equity and cash flows of the Bank and its consolidated subsidiaries for the periods specified, said financial statements have been prepared in conformity with international financial reporting standards as endorsed by the European Union (“ IFRS ”), applied on a consistent basis throughout the periods involved, except as disclosed therein;

 

(n) the accountants who certified the financial statements and supporting schedules included in the Registration Statement are independent public accountants as required by the Securities Act and the Securities Act Regulations;

 

(o) except as disclosed in the Registration Statement, there are no pending actions, suits or proceedings against or affecting the Bank or any of its properties which, if determined adversely to the Bank, would adversely affect the ability of the Bank to perform its obligations under this Agreement, the Subordinated Indenture or the Notes and, to the best of the Bank’s knowledge, no such actions, suits or proceedings are threatened or contemplated;

 

(p) none of the Bank, its affiliates, or any persons acting on its behalf has engaged or will engage in any jurisdiction referred to in Article 3 in any activity with respect to the issue and offering of the Notes that is not permitted by the laws of such jurisdiction; and

 

(q) the Bank is not and, after giving effect to the transactions contemplated herein, will not be an “investment company,” or an entity “controlled” by an “investment company” as such terms are defined in the U.S. Investment Company Act of 1940, as amended.

(2) The representations and warranties in this Agreement shall be repeated on the Closing Date.

ARTICLE 5

( COVENANTS OF THE BANK )

The Bank covenants with each of the Managers as follows:

(1) The Bank, subject to Article 5(2), will comply with the requirements of Rule 430B and, during the period beginning at the Time of Sale and ending on the later of the Closing Date or such date as in the opinion of counsel for the Managers the Prospectus is no longer required by law to be delivered in connection with the sales by the Managers or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the “ Prospectus Delivery Period ”), will notify the Managers immediately, and confirm the notice in writing (i)

 

10


when any post-effective amendment to the Registration Statement or new registration statement relating to the Notes shall become effective, or any supplement to the Prospectus or any amended Prospectus relating to the Notes shall have been filed, (ii) of the receipt of any comments from the Commission to the Registration Statement, and (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information (except those relating to the offering of securities other than the Notes). The Bank, subject to Article 5(2), will notify the Managers immediately, and confirm the notice in writing (i) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any new registration statement relating to the Notes or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement (except those relating to the offering of securities other than the Notes) and (ii) if the Bank becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Notes. The Bank will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as they deem necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, will promptly file such prospectus. The Bank will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. The Bank shall pay the required Commission filing fees relating to the Notes within the time required by Rule 456(b)(l)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).

(2) The Bank will give the Managers notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Notes or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, in each case relating to the Notes, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Bank will furnish the Managers with copies (which may be in electronic form) of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Managers or counsel for the Managers shall object. The Bank has given the Managers notice of any filings made pursuant to the Exchange Act or Exchange Act Regulations within 48 hours prior to the Time of Sale; the Bank will give the Managers notice of its intention to make any such filing from the Time of Sale to the Closing Date and will furnish the Managers with copies (which may be in electronic form) of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Managers or counsel for the Managers shall reasonably object. The Bank will prepare a final term sheet (the “ Final Term Sheet ”) reflecting the final terms of the Notes, in form and substance satisfactory to the Managers, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus prior to the close of business two business days after the date hereof; provided that the Bank shall furnish the Managers with copies (which may be in electronic form) of any such Issuer Free Writing Prospectus a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Managers or counsel to the Managers shall reasonably object.

 

11


(3) The Bank has furnished or will deliver to the Managers and counsel for the Managers, without charge, copies of the Registration Statement and of each amendment thereto relating to the Notes (including exhibits filed therewith or incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Managers, without charge, a conformed copy of the Registration Statement and of each amendment thereto relating to the Notes (without exhibits). The copies of the Registration Statement and each amendment thereto furnished to the Managers will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.

(4) The Bank has delivered to the Managers, without charge, as many copies of each preliminary prospectus as the Managers reasonably requested, and the Bank hereby consents to the use of such copies for purposes permitted by the Securities Act. The Bank will furnish to the Managers, without charge, during the Prospectus Delivery Period, such number of copies of the Prospectus (as amended or supplemented) as the Managers may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Managers will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.

(5) The Bank will comply with the Securities Act and the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations and the Trust Indenture Act and the Trust Indenture Act Regulations so as to permit the completion of the distribution of the Notes as contemplated in this Agreement and in the Prospectus. If at any time during the Prospectus Delivery Period any event shall occur or condition shall exist as a result of which it is necessary, in the reasonable opinion of counsel for the Managers or for the Bank, to amend the Registration Statement or amend or supplement the Prospectus or the General Disclosure Package in order that the Prospectus or the General Disclosure Package will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of such counsel, at any such time to amend the Registration Statement or to file a new registration statement or amend or supplement the Prospectus or the General Disclosure Package in order to comply with the requirements of the Securities Act or the Securities Act Regulations, the Bank will promptly prepare and file with the Commission, subject to Article 5(2), such amendment, supplement or new registration statement as may be necessary to correct such statement or omission or to comply with such requirements, the Bank will use its best efforts to have such amendment or new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect to the Notes) and the Bank will furnish to the Managers such number of copies of such amendment, supplement or new registration statement as the Managers may reasonably request. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Notes) or the Statutory Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Bank will promptly notify the Managers and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.

 

12


(6) The Bank will endeavour, in cooperation with the Managers, to qualify the Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Managers shall reasonably request and to maintain such qualifications for as long as may be required for the distribution of the Notes.

(7) The Bank will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Managers the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.

(8) The Bank will use the net proceeds received by them from the sale of the Notes in the manner specified in the Prospectus under “Use of Proceeds”.

(9) The Bank will use its best efforts to effect the listing of the Notes on the New York Stock Exchange.

(10) The Bank, during the Prospectus Delivery Period, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the Exchange Act Regulations.

(11) The Bank represents and agrees that unless it obtains the prior consent of the Managers, and the each of the Managers represents and agrees that, unless it obtains the prior consent of the Bank, it has not made and will not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission, and the Bank and each of the Managers represents and agrees that Schedule A hereto is a complete list of all free writing prospectuses for which such consent was received, provided , however , that prior to the preparation of the Final Term Sheet in accordance with Article 5(2), the Managers are authorized to use the information with respect to the final terms of the Notes in communications conveying information relating to the offering to investors. Any such free writing prospectus consented to by the Bank and the Managers is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Bank represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and have complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.

ARTICLE 6

( CONDITIONS PRECEDENT AND PAYMENT )

(1) The obligations of the Managers to purchase the Notes are subject to the following conditions precedent:

 

(a) On the Closing Date there have been no events making any of the representations and warranties contained in this Agreement untrue or incorrect in any material respect as though they had been given and made on such date and the Bank shall have performed all of its obligations hereunder to be performed on or before the Closing Date.

 

13


(b) The Registration Statement has become effective and on the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Managers. The Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). The Bank shall have paid the required Commission filing fees relating to the Notes within the time period required by Rule 456(b)(l)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).

 

(c) The delivery of legal opinions to the Managers on the Closing Date in such form and with such contents as the Managers may reasonably require from (i) Cleary Gottlieb Steen & Hamilton LLP, legal advisers to the Managers as to the laws of the State of New York and the federal laws of the United States and (iii) Group Legal Services of the Bank.

 

(d) The delivery of such certificates and other documents as the Managers may reasonably request.

 

(e) On the Closing Date, the Notes shall be rated at least Baa3 by Moody’s Investor Service Inc., BBB+ by Standard & Poor’s Rating Services, and A- by Fitch Ratings, and the Bank shall have delivered to the Managers a letter dated on or about the Closing Date, from each such rating agency, or other evidence satisfactory to the Bank, confirming that the Notes have such ratings, and since the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the securities or the Bank by any “nationally recognized statistical rating agency,” as that term is defined in Section 3(a)(62) of the Exchange Act, and no such organization shall have publicly announced that it has under surveillance or review its rating of any securities of the Bank.

 

(f) On the Closing Date, the Bank will have taken all steps necessary to apply for approval for listing on the New York Stock Exchange of the Notes.

(2) The “ Closing Date ” shall be May 24, 2013, or such other time and date as the Bank and the Managers shall agree in writing.

(3) On the Closing Date the Managers shall pay the purchase price as mentioned in Article 2(1) in same day funds into a U.S. $-denominated account to be named by the Bank.

 

14


ARTICLE 7

( CHANGE OF CIRCUMSTANCES )

Notwithstanding anything contained in this Agreement, the Managers may by notice to the Bank terminate this Agreement at any time before the time on the Closing Date when payment would otherwise be due under this Agreement to the Bank in respect of the Notes if:

 

(1) in the opinion of the Lead Manager, circumstances shall be such as:

 

(a) to prevent or to a material extent restrict payment for the Notes in the manner contemplated in this Agreement; or

 

(b) to a material extent prevent or restrict settlement of transactions in the Notes in the market or otherwise; or

 

(2) in the opinion of the Lead Manager, there shall have been:

 

(a) any change in national or international political, legal, tax or regulatory conditions; or

 

(b) any calamity or emergency,

which has in its view caused a substantial deterioration in the price and/or value of the Notes, and, upon notice being given, the parties to this Agreement shall (except for the liability of the Bank in relation to expenses as provided in Article 8 and except for any liability arising before or in relation to such termination) be released and discharged from their respective obligations under this Agreement.

ARTICLE 8

( INDEMNITY )

(1) Indemnification of Managers. The Bank agrees to indemnify and hold harmless each Manager, its affiliates, as such term is defined in Rule 501(b) under the Securities Act (each, an “ Affiliate ”), and each person, if any, who controls any Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:

 

(a) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto) or the Prospectus, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;

 

(b)

against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or

 

15


  threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Article 8(5) below) any such settlement is effected with the written consent of the Bank;

 

(c) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Lead Manager, reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (a) or (b) above;

provided , however , that (x) this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Bank by any Manager expressly for use in the Registration Statement (or any amendment thereto), any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) and (y) the foregoing indemnity agreement with respect to the preliminary prospectus shall not inure to the benefit of any Manager from whom the person asserting any such losses, claims, damages or liabilities purchased Notes, or any person controlling such Manager where it shall have been determined by a court of competent jurisdiction by final judgment that (A) prior to the Time of Sale the Bank shall have notified such Manager that the preliminary prospectus contains an untrue statement of material fact or omits to state therein a material fact required to be stated therein in order to make the statements therein not misleading, (B) such untrue statement or omission of a material fact was corrected in an amended or supplemented preliminary prospectus or, where permitted by law, an Issuer Free Writing Prospectus and such corrected preliminary prospectus or issuer free writing prospectus was provided to such Manager far enough in advance of the Time of Sale so that such corrected preliminary prospectus or issuer free writing prospectus could have been delivered or otherwise conveyed to such person prior to the Time of Sale, (C) such corrected preliminary prospectus or issuer free writing prospectus (excluding any document then incorporated or deemed incorporated therein by reference) was not delivered or otherwise conveyed to such person at or prior to the Time of Sale, and (D) such loss, claim, damage or expense would not have occurred had the corrected preliminary prospectus or issuer free writing prospectus (excluding any document then incorporated or deemed incorporated therein by reference) been delivered or otherwise conveyed to such person as provided for in (C).

(2) Insofar as this indemnity agreement may permit indemnification for liabilities under the Securities Act of any person who is a partner of a Manager or who controls a Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and who, at the date of this Agreement, is a director or officer of the Bank or controls the Bank within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, such indemnity agreement is subject to the undertaking of the Bank in the Registration Statement under “ Part II—Information Not Required in Prospectus—Indemnification of Directors and Officers—Undertakings .”

 

16


(3) Indemnification of the Bank, Directors and Officers. Each Manager severally agrees to indemnify and hold harmless the Bank, its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Bank within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (1)(a) of this Article, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Bank by such Manager expressly for use therein.

(4) Actions against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Article 8(1) above, counsel to the indemnified parties shall be selected by the Lead Manager, and, in the case of parties indemnified pursuant to Article 8(3) above, counsel to the indemnified parties shall be selected by the Bank. An indemnifying party may participate at its own expense in the defense of any such action; provided , however , that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Article 8 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (A) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.

(5) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Article 8(1)(b) effected without its written consent if (A) such settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request, (B) such indemnifying party shall have received notice of the terms of such settlement at least 45 days prior to such settlement being entered into and (C) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.

 

17


ARTICLE 9

( PARTIAL INVALIDITY )

Should any of the provisions of this Agreement be or become invalid in whole or in part, the other provisions of this Agreement shall remain in force. Invalid provisions shall, according to the intent and purpose of this Agreement, be replaced by such valid provisions which in their economic effect come as close as legally possible to that of the invalid provisions.

ARTICLE 10

( MISCELLANEOUS )

This Agreement may be executed in counterparts, each of which shall be deemed an original.

ARTICLE 11

( APPLICABLE LAW AND PLACE OF JURISDICTION )

(1) This Agreement and any non-contractual obligations arising out of or in relation to this Agreement shall be governed by German law.

(2) Non-exclusive place of jurisdiction shall be Frankfurt am Main.

 

18


IN WITNESS WHEREOF, each of the undersigned has caused this PURCHASE AGREEMENT to be executed as of the day and year first written above.

 

DEUTSCHE BANK AG
By:   /s/ Robert Müller
  Name: Robert Müller
  Title:   Director
By:   /s/ Marco Zimmermann
  Name: Marco Zimmermann
  Title:   Director

 

THE MANAGERS LISTED UNDER SCHEDULE C HERETO
By virtue of powers of attorney
By:  

DEUTSCHE BANK SECURITIES INC.

  By:   /s/ Jeanmarie Genirs
    Name: Jeanmarie Genirs
    Title:   Managing Director
  By:   /s/ Christopher J. Kulusic
    Name: Christopher J. Kulusic
    Title:   Director


Banca IMI S.p.A.
By:   /s/ Stefano Fassone
  Name: Stefano Fassone
  Title:   Head of Syndicate
By:   /s/ Michele Petta
  Name: Michele Petta
  Title:   Syndicate Manager

 

DZ BANK AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main
By:   /s/ Christoph Alenfeld
  Name: Christoph Alenfeld
  Title:   Executive Director
By:   /s/ Ralph Ockert
  Name: Ralph Ockert
  Title:   Executive Director

 

RB International Markets (USA) LLC
By:   /s/ Stefan Gabriele
  Name: Stefan Gabriele
  Title:   Manager, CEO
By:   /s/ Marianne Rafferty
  Name: Marianne Rafferty
  Title:   Manager, CCO


BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
By:   /s/ Oliver Schwarzer
  Name: Oliver Schwarzer
  Title:   Vice President
By:   /s/ Sandra de las Cavadas
  Name: Sandra de las Cavadas
  Title:   Director

 

SEB Enskilda, Inc.
By:   /s/ Frederick Johansson
  Name: Frederick Johansson
  Title:   General Manager
By:   /s/ Tony Racanelli
  Name: Tony Racanelli
  Title:   Senior Vice President


Swedbank AB (publ)
By:   /s/ Johanna Lundin
  Name: Johanna Lundin
  Title:   Legal Counsel
By:   /s/ Per-Åke Nyberg
  Name: Per-Åke Nyberg
  Title:   Head of Syndicate Desk
UniCredit Bank AG
By:   /s/ Matthias Preißer
  Name: Matthias Preißer
  Title:   Director
By:   /s/ Claus Fincke
  Name: Claus Fincke
  Title:   Associate Director


SCHEDULE A

Final Term Sheet, dated May 21, 2013, in respect of the Notes as filed pursuant to Rule 433 on May 21, 2013.

 

23


SCHEDULE B

Contact details for each Manager:

Deutsche Bank Securities Inc.

60 Wall Street

New York, New York 10005

United States of America

Attn:   Debt Capital Markets Syndicate

Fax:     +1 212 797-2202

With a copy to General Counsel

Fax:     +1 212 797-4561

ABN AMRO Securities (USA) LLC

Corporate Finance & Capital Markets

100 Park Avenue, 17 th Floor

New York, NY 10017

United States of America

Attn:   Mr. John F.H. Ong

Tel:     +1 917 284 6739

Fax:     +1 646 434 0191

E-mail: john.ong@abnamro.com

Banco Bilbao Vizcaya Argentaria, S.A.

44 th Floor – One Canada Square

London E14 5AA

United Kingdom

Attn:   Legal Department / Debt Capital Markets EMEA

E-mail: Stefano.daniello@bbvany.com

Banca IMI S.p.A.

Largo Mattioli 3

20121 Milan

Italy

Attn:   Head of DCM and of Joseph Amoroso

Tel:     +39 02 7261 4704 / (212) 326 1200

Fax:     +39 02 7261 2053 / (212) 326 1144

E-mail: dcm.corp@bancaimi.com

Merrill Lynch, Pierce, Fenner & Smith Incorporated

50 Rockefeller Plaza

NY1-050-12-02

New York, New York 10020

United States of America

Attn:   High Grade Transaction Management / Legal

Fax:     +1 646 855 5958

 

24


BB&T Capital Markets, a division of BB&T Securities, LLC

901 East Byrd Street

Suite 300

Richmond, VA 23219

United States of America

Tel:     +1 804 649-3952

Fax:     +1 804 649-3933

E-mail: bhardy@bbandtcm.com

Commerz Markets LLC

2 World Financial Center, 32 nd Floor

New York, NY 10281 – 1050

United States of America

Attn:   Capital Markets / Legal & Compliance

Tel:     +1 212 703 4000

Fax:     +1 212 703 4032

Credit Agricole Securities (USA) Inc.

1301 Avenue of the Americas

New York, NY 10019

United States of America

Tel:     +1 866-807-6030

Credit Suisse Securities (USA) LLC

Investment Banking / GMSG Debt Capital Markets

Eleven Madison Avenue

10010-3629 New York

United States of America

Attn:   Sharon Harrison (Director)

Tel:     +1 212 325 2501

Fax:     +1 212 743 1953

E-mail: sharon.harrison@credit-suisse.com

DZ BANK AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main

Platz der Republik

60265 Frankfurt am Main

Germany

Attn:   Marlene Merget

Tel:     +49 69 7447 7961

Fax:     +49 69 7447 2884

E-mail: marlene.merget@dzbank.de

ING Bank N.V. Belgian Branch

Avenue Marnix, 24

B – 1000 Brussels

Belgium

Attn:   Legal Financial Markets

 

25


Lloyds Securities Inc.

1095 Avenue of the Americas

New York, NY 10036

United States of America

Tel:     +1 212-930-5000

Fax:     +1 212-429-2882

E-mail: fixedincomedesk@lbusa.com

RB International Markets (USA) LLC

1133 Avenue of the Americas, 16th Floor

New York, NY 10036

United States of America

E-mail: stefan.gabriele@rbimusa.com / marianne.rafferty@rbimusa.com

Regions Securities LLC

3050 Peachtree Road NW, Suite 400

Atlanta, GA 30305

United States of America

Attn: Regions Capital Markets

Tel:     +1 901 580-5812

Fax:     +1 901 580-5656

Scotia Capital (USA) Inc.

165 Broadway, 25th Floor

One Liberty Plaza

New York, NY 10006

United States of America

Tel:     +1 212-225-5501

Fax:     +1 212-225-6550

SEB Enskilda, Inc.

SE-106 40 Stockholm

Sweden

Attn:   Mr. Niklas Lindkvist

Tel:     +46-8-506 230 93

E-Mail: niklas.lindkvist@seb.se

SMBC Nikko Capital Markets Limited

One New Change

London, EC4M 9AF

United Kingdom

Attn:   Transaction Management

Tel:     +44 20 3527 7000

E-mail: Intm@smbcnikko-cm.com

 

26


SG Americas Securities, LLC

1221 Avenue of the Americas

New York, NY 10020

United States of America

Attn:    High Grade Syndicate Desk

Tel:      +1 212 278 7631

Fax:     +1 212 278 5642

E-mail: sabina.ceddia@sgcib.com

Swedbank AB (publ)

SE-105 34 Stockholm

Sweden

Attn:    Legal, E829

Tel:      +46 (0)8-585 900 00

Fax:     +46 (0)8-411 85 23

E-mail: dcm.legal@swedbank.se

UniCredit Bank AG

Arabellastrasse 12

81925 Munich

Germany

Attn:    Debt Capital Markets Legal – LCI4DC

Tel:      +49 89 378 13092

Fax:      +49 89 378 33 15964

 

27


SCHEDULE C

Deutsche Bank Securities Inc.

ABN AMRO Securities (USA) LLC

Merrill Lynch, Pierce, Fenner & Smith Incorporated

BB&T Capital Markets, a division of BB&T Securities, LLC

Credit Agricole Securities (USA) Inc.

Commerz Markets LLC

Credit Suisse Securities (USA) LLC

ING Bank N.V. Belgian Branch

Lloyds Securities Inc.

Regions Securities LLC

Scotia Capital (USA) Inc.

SMBC Nikko Capital Markets Limited

SG Americas Securities, LLC

 

28

Exhibit 4.17

DEUTSCHE BANK AKTIENGESELLSCHAFT,

Issuer

AND

WILMINGTON TRUST, NATIONAL ASSOCIATION,

Trustee

AND

DEUTSCHE BANK TRUST COMPANY AMERICAS,

Paying Agent, Transfer Agent and Registrar and Authenticating Agent

First Supplemental Subordinated Indenture

Dated as of May 24, 2013

to the Subordinated Indenture

Dated as of May 21, 2013

Fixed to Fixed Reset Rate

Subordinated Tier 2 Notes due 2028


TABLE OF CONTENTS

 

         P AGE  

ARTICLE 1

 

D EFINITIONS AND I NCORPORATION BY R EFERENCE

     1   

Section 1.1

 

Definitions

     1   

Section 1.2

 

Incorporation by Reference of Trust Indenture Act

     6   

Section 1.3

 

Rules of Construction

     7   

ARTICLE 2

 

T HE N OTES

     7   

Section 2.1

 

Title and Terms

     7   

Section 2.2

 

Form of Notes

     8   

Section 2.3

 

Legends

     9   

Section 2.4

 

Book-Entry Provisions for the Global Notes

     10   

Section 2.5

 

Default

     11   

Section 2.6

 

Status

     12   

ARTICLE 3

 

A DDITIONAL C OVENANTS

     12   

Section 3.1

 

Payment of Additional Amounts

     12   

Section 3.2

 

Written Statement to Trustee

     14   

ARTICLE 4

 

R EDEMPTION OR R EPURCHASE OF N OTES

     15   

Section 4.1

 

Deposit of Redemption Price

     15   

Section 4.2

 

Cessation of Interest Accrual

     15   

Section 4.3

 

Optional Redemption

     15   

Section 4.4

 

Tax Redemption

     15   

Section 4.5

 

Redemption due to a Capital Disqualification Event

     16   

Section 4.6

 

Payment on the Maturity Date

     17   

Section 4.7

 

Repurchase

     17   

Section 4.8

 

Amounts to be Returned to the Issuer

     17   

ARTICLE 5

 

S ATISFACTION AND D ISCHARGE OF S UPPLEMENTAL S UBORDINATED I NDENTURE

     18   

Section 5.1

 

Satisfaction and Discharge of the Supplemental Subordinated Indenture

     18   

ARTICLE 6

 

M ISCELLANEOUS P ROVISIONS

     18   

Section 6.1

 

Scope of Supplemental Subordinated Indenture

     18   

Section 6.2

 

Provisions of Supplemental Subordinated Indenture for the Sole Benefit of Parties and Holders of Notes

     19   

Section 6.3

 

Successors and Assigns of Issuer Bound by Supplemental Subordinated Indenture

     19   

Section 6.4

 

Notices and Demands on Issuer, Trustee, Agents and Holders of Notes

     19   

Section 6.5

 

Payments Due on Saturdays, Sundays and Holidays

     21   

Section 6.6

 

Conflict of any Provisions of Supplemental Subordinated Indenture with Trust Indenture Act

     21   

Section 6.7

 

Governing Law as in Base Subordinated Indenture

     21   

Section 6.8

 

Counterparts

     21   

Section 6.9

 

Effect of Headings

     21   

 

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Section 6.10

 

Submission to Jurisdiction

     21   

Section 6.11

 

Not Responsible for Recitals or Issuance of Securities

     22   

Section 6.12

 

Further Issues

     22   

Section 6.13

 

Waiver of Right to Set-Off

     22   

ARTICLE 7

 

S UPPLEMENTS TO S UPPLEMENTAL S UBORDINATED I NDENTURE

     22   

Section 7.1

 

Supplements without Consent of Holders

     22   

EXHIBITS

    

EXHIBIT A:

 

Form of Global Note

  

EXHIBIT B:

 

Form of Definitive Note

  

 

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THIS FIRST SUPPLEMENTAL SUBORDINATED INDENTURE, dated as of May 24, 2013 among DEUTSCHE BANK AKTIENGESELLSCHAFT (the “ Issuer ”) WILMINGTON TRUST, NATIONAL ASSOCIATION, as trustee (the “ Trustee ”), and DEUTSCHE BANK TRUST COMPANY AMERICAS (“ DBTCA ”), as Paying Agent, Transfer Agent and Registrar and Authenticating Agent.

W I T N E S S E T H :

WHEREAS, the Issuer has heretofore executed and delivered to the Trustee a subordinated indenture, dated as of May 21, 2013 (the “ Base Subordinated Indenture ”), providing for the issuance from time to time of one or more series of its subordinated unsecured debentures, notes or other evidences of indebtedness (the “ Subordinated Debt Securities ”);

WHEREAS, Section 8.01(d) of the Base Subordinated Indenture provides that the Issuer and the Trustee may from time to time enter into one or more indentures supplemental thereto to establish the form or terms of Subordinated Debt Securities;

WHEREAS, the Issuer, pursuant to the foregoing authority, proposes in and by this first supplemental subordinated indenture (the “ Supplemental Subordinated Indenture ” and, together with the Base Subordinated Indenture, the “ Subordinated Indenture ”) to supplement the Base Subordinated Indenture insofar as it will apply only to the fixed to fixed reset rate subordinated Tier 2 notes due 2028 (the “ Notes ”) issued hereunder (and not to any other series of Subordinated Debt Securities); and

WHEREAS, all things necessary have been done to make the Notes, when executed by the Issuer and authenticated and delivered hereunder and duly issued by the Issuer, the valid obligations of the Issuer, and to make this Supplemental Subordinated Indenture a valid agreement of the Issuer, in accordance with their and its terms;

NOW, THEREFORE:

In consideration of the premises and the purchases of the Notes by the holders thereof, the Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Notes as follows:

ARTICLE 1

D EFINITIONS AND I NCORPORATION BY R EFERENCE

Section 1.1 Definitions. Capitalized terms used herein but not defined shall have the meanings assigned to them in the Base Subordinated Indenture unless otherwise indicated. For all purposes of this Supplemental Subordinated Indenture and the Notes, the following terms are defined as follows:

Additional Amounts ” has the meaning specified in Section 3.1.

 

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Agent Member ” has the meaning specified in Section 2.4.

Agents ” means the Paying Agent, the Transfer Agent, the Registrar and the Authenticating Agent.

Authenticating Agent ” means DBTCA.

Authorized Agent ” has the meaning specified in Section 6.10.

Authorized Signatories ” means any two persons acting together authorized by the Issuer, its articles of association or otherwise under German law to act on behalf of the Issuer.

BaFin ” means the German Federal Financial Supervisory Authority ( Bundesanstalt für Finanzdienstleistungsaufsicht ).

Business Day ” means a day on which commercial banks and foreign exchange markets settle payments and are open for general business (including dealing in foreign exchange and foreign currency deposits) in New York City and London.

Capital Disqualification Event ” shall be deemed to have occurred if, as a result of any amendment or supplement to, or change in, the Capital Regulations which are in effect at the Issue Date, the Notes are fully excluded from Tier 2 Capital (as defined in the Capital Regulations) of the Issuer and/or the Deutsche Bank Group.

Capital Regulations ” means, at any time, the regulations, requirements, guidelines and policies relating to capital adequacy adopted by bodies of the European Union or the Federal Republic of Germany or any other competent authority then in effect in the Federal Republic of Germany and applicable to the Issuer.

corporation ” means any corporation, association, limited liability company, company or business trust.

CRD 4/CRR ” means, taken together, (i) the CRD 4, (ii) the CRR and (iii) any Capital Regulations relating thereto.

CRD 4 ” means a directive of the European Parliament and of the Council on the access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms and amending Directive 2002/87/EC of

 

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the European Parliament and of the Council on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate, the first draft of which was published on July 20, 2011, and any successor directive.

CRR ” means a regulation of the European Parliament and of the Council on prudential requirements for credit institutions and investment firms, the first draft of which was published on July 20, 2011, and any successor regulation.

Defaulted Interest ” has the meaning specified in Section 2.5.

Depositary ” means The Depository Trust Company, its nominees and their respective successors.

Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended.

5 year Swap Rate ” means the 5 year semi-annual mid-swap rate as displayed on the Reset Screen Page on the Reset Interest Determination Date. In the event that the 5 year Swap Rate does not appear on the Reset Screen Page on the Reset Interest Determination Date, the 5 year Swap Rate shall be the Reset Reference Bank Rate on the Reset Interest Determination Date.

5 year Swap Rate Quotation ” means, in each case, the arithmetic mean of the bid and offered rates for the semi-annual fixed leg (calculated on a basis of a 360-day year of twelve 30-day months) of a fixed-for-floating U.S. dollar interest rate swap which (i) has a term of 5 years commencing on the Reset Date, (ii) is in an amount that is representative of a single transaction in the relevant market at the relevant time with an acknowledged dealer of good credit in the swap market and (iii) has a floating leg based on the 3-month U.S. dollar LIBOR rate (calculated on basis of the actual number of days elapsed in 360-day year).

Fixed Interest Rate ” means 4.296% per annum.

Fixed Reset Interest Rate ” means 2.2475% above the 5 year Swap Rate.

Global Note ” has the meaning specified in Section 2.2(b).

Holder ,” “ Holder of Notes ” or other similar terms means the registered holder of any Note.

Interest Payment Date ” means each of May 24 and November 24, beginning November 24, 2013; provided, however , in each case, that if any such date is not a Business Day, the Interest Payment Date shall be the next succeeding Business Day.

 

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Issuer ” means the company named as the “Issuer” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of the Subordinated Indenture, and thereafter “Issuer” shall mean such successor Person.

Issuer Order ” means a written statement, request or order of the Issuer signed in its name by any two Authorized Signatories of the Issuer.

Maturity Date ” means May 24, 2028.

Note ” or “ Notes ” has the meaning specified to it in the third recital paragraph of this Supplemental Subordinated Indenture.

Paying Agent ” means DBTCA, with respect to payments to be made in U.S. Dollars (or such other currency as to which DBTCA or its agent has agreed to make payments hereunder), or any person authorized by the Issuer in accordance with Section 3.04 of the Base Subordinated Indenture.

Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

Physical Notes ” means Notes issued in definitive, fully registered form without interest coupons, substantially in the form of Exhibit B hereto.

Record Date ” means either a Regular Record Date or a Special Record Date, as the case may be.

Redemption Date ,” when used with respect to any Note to be redeemed, means the date fixed for such redemption by or pursuant to this Supplemental Subordinated Indenture.

Redemption Price ,” when used with respect to any Note to be redeemed pursuant to Article 4 of this Supplemental Subordinated Indenture, means the amount equal to 100% of the principal amount of the Notes to be redeemed.

Registrar ” means DBTCA.

Regular Record Date ” in respect of interest on the Notes payable means the Business Day immediately preceding an Interest Payment Date.

Regulatory Bail-in ” means a subjection of the claims for payment of principal, interest or other amounts under the Notes to a permanent reduction, including to zero, or a conversion of the Notes, in whole or in part, into equity of the Issuer, such as ordinary shares, in each case pursuant to German law.

 

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Relevant Jurisdiction ” means the Federal Republic of Germany, the United States or the jurisdiction of residence or incorporation of any successor corporation to the Issuer.

Relevant Regulator ” means the BaFin or any other competent authority assuming the relevant supervisory functions performed by the BaFin as of the date first written above.

Reset Date ” means May 24, 2023.

Reset Interest Determination Date ” means the day falling two Business Days prior to the Reset Date.

Reset Reference Bank Rate ” means the percentage rate determined on the basis of the 5 year Swap Rate Quotations provided by five leading swap dealers in the interbank market to the paying agent at approximately 11:00 a.m. (New York time), on the Reset Interest Determination Date. If at least three quotations are provided, the 5 year Swap Rate will be the arithmetic mean of the quotations, eliminating the highest quotation (or, in the event of equality one of the highest) and the lowest quotation (or, in the event of equality, one of the lowest). If only two quotations are provided, the 5 year Swap Rate will be the arithmetic mean of the quotations provided. If only one quotation is provided, the 5 year Swap Rate will be the quotation provided. If no quotations are provided, the 5 year Swap Rate shall be equal to the last available 5 year semi-annual mid-swap rate on the Reset Screen Page.

Reset Screen Page ” means Reuters screen “ISDAFIX1” (or any successor page) as at 11:00 a.m. (New York time).

Responsible Officer” when used with respect to any Person means the chairman of the board of directors, any vice chairman of the board of directors, the chairman of the trust committee, the chairman of the executive committee, any vice chairman of the executive committee, the president, any vice president (whether or not designated by numbers or words added before or after the title “ vice president ”), the cashier, the secretary, the treasurer, any trust officer, any assistant trust officer, any assistant vice president, any assistant cashier, any assistant secretary, any assistant treasurer, or any other officer or assistant officer of the Person customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject.

Securities Act ” means the U.S. Securities Act of 1933, as amended.

Special Record Date ” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 2.5.

 

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Transfer Agent ” means DBTCA.

Trust Indenture Act ” means the U.S. Trust Indenture Act of 1939, as amended.

Trustee ” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Supplemental Subordinated Indenture, and thereafter “Trustee” shall mean such successor Trustee.

U.S. Dollar ” means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

Section 1.2 Incorporation by Reference of Trust Indenture Act . Whenever this Supplemental Subordinated Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Supplemental Subordinated Indenture.

The following Trust Indenture Act terms used in this Supplemental Subordinated Indenture have the following meanings:

“indenture securities” means the Notes;

“indenture security holder” means a Holder;

“indenture to be qualified” means the Subordinated Indenture;

“indenture trustee” or “institutional trustee” means the Trustee; and

“obligor” on the Notes means the Issuer and any other obligor on the indenture securities.

All other Trust Indenture Act terms used in this Supplemental Subordinated Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by U.S. Securities Exchange Commission rule have the meanings assigned to them by such definitions.

 

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Section 1.3 Rules of Construction .

(a) For all purposes of this Supplemental Subordinated Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; and

(2) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Supplemental Subordinated Indenture as a whole and not to any particular Article, Section or other subdivision.

(b) Capitalized terms used herein but not otherwise defined shall have the meanings assigned to them in the Base Subordinated Indenture.

(c) To the extent the terms of the Base Subordinated Indenture are inconsistent with provisions of this Supplemental Subordinated Indenture, the terms of this Supplemental Subordinated Indenture shall govern, but only with respect to the Notes.

ARTICLE 2

T HE N OTES

Section 2.1 Title and Terms .

(a) The Notes shall be known and designated as the “Fixed to Fixed Reset Rate Subordinated Tier 2 Notes due 2028” of the Issuer. The aggregate principal amount of the Notes that may be authenticated and delivered under this Supplemental Subordinated Indenture shall not initially exceed $1,500,000,000 (except as otherwise provided in the Subordinated Indenture). The Notes shall be issuable in minimum denominations of $200,000 principal amount and integral multiples of $1,000 in excess thereof.

(b) The Notes shall be due and payable on the Maturity Date unless previously redeemed or repurchased and cancelled.

(c) Subject to Section 2.1(b), the Notes shall bear interest (i) from (and including) the date of issuance to (but excluding) the Reset Date at the Fixed Interest Rate and (ii) from (and including) the Reset Date to (but excluding) the Maturity Date at the Fixed Reset Interest Rate. Interest shall be payable semi-annually in arrears on each Interest Payment Date.

(d) Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.

(e) A Holder of any Note at the close of business on a Regular Record Date shall be entitled to receive interest on such Note on the corresponding Interest Payment Date.

 

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(f) Principal of and interest on Global Notes shall be payable to the Depositary by wire in immediately available funds by the Paying Agent (subject to the Paying Agent’s receipt of such funds as provided under Section 3.04(c) of the Base Indenture).

(g) Principal on Physical Notes shall be payable at the office or agency of the Issuer maintained for such purpose, initially the office of the Paying Agent. U.S. dollar payments of interest, other than interest due at maturity or any date of redemption or repayment, will be made by U.S. dollar check mailed to the address of the person entitled thereto as such address shall appear in the register of the Notes. A holder of U.S. $10,000,000 or more in aggregate principal amount of Notes having the same Interest Payment Date, the interest on which is payable in U.S. dollars, will be entitled to receive payments of interest, other than interest due at maturity or on any date of redemption or repayment, by wire transfer of immediately available funds if appropriate wire transfer instructions have been received by the Paying Agent in writing not less than 15 calendar days prior to the applicable Interest Payment Date.

Section 2.2 Form of Notes .

(a) Except as otherwise provided pursuant to this Section 2.2, the Notes are issuable in fully registered, global form without coupons in substantially the form of Exhibit A hereto (the “ Global Notes ”), each of which representing a maximum of U.S. $500,000,000 principal amount of all such Notes that have the same original issue date, Maturity Date and other terms, with such applicable legends as are provided for in Section 2.3. The Notes are not issuable in bearer form or with detachable coupons. The terms and provisions contained in the form of Notes shall constitute, and are hereby expressly made, a part of this Supplemental Subordinated Indenture and to the extent applicable, the Issuer and the Trustee, by their execution and delivery of this Supplemental Subordinated Indenture, expressly agree to such terms and provisions and to be bound thereby. Any of the Notes may have such letters, numbers or other markings of identification and such notations, legends and endorsements as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Supplemental Subordinated Indenture and the Base Subordinated Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to usage.

(b) Each Global Note shall be duly executed by the Issuer and authenticated and delivered by the Trustee and shall be registered in the name of the Depositary or its nominee and retained by the Registrar, as custodian, at its Corporate Trust Office. The aggregate principal amount of each Global Note may from time to time be increased or decreased by adjustments made on the records of the Registrar, as custodian, and of the Depositary or its nominee, as hereinafter provided.

 

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Section 2.3 Legends . Each Global Note shall also bear the following legends on the face thereof:

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“ DTC ”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. BY ACCEPTING THIS NOTE (OR AN INTEREST IN THE NOTES REPRESENTED HEREBY).

EACH ACQUIRER AND EACH TRANSFEREE OF BENEFICIAL INTERESTS IN THIS NOTE IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT AT THE TIME OF ITS ACQUISITION AND THROUGHOUT THE PERIOD THAT IT HOLDS THIS NOTE OR ANY INTEREST HEREIN (1) EITHER (A) IT IS NOT, AND IT IS NOT ACTING ON BEHALF OF (AND FOR SO LONG AS IT HOLDS SUCH NOTES OR ANY INTEREST THERE IN IT WILL NOT BE, AND WILL NOT BE ACTING ON BEHALF OF), AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE UNITED STATES EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ ERISA ”)), SUBJECT TO THE PROVISIONS OF PART 4 OF SUBTITLE B OF TITLE I OF ERISA, A PLAN TO WHICH SECTION 4975 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, (“ CODE ”), APPLIES, OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF SUCH AN EMPLOYEE BENEFIT PLAN’S AND/OR PLAN’S INVESTMENT IN SUCH ENTITY (EACH, A “ BENEFIT PLAN INVESTOR ”), OR A GOVERNMENTAL, CHURCH OR NON-U.S. PLAN WHICH IS SUBJECT TO ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND/OR SECTION 4975 OF THE CODE (“ SIMILAR LAWS ”), AND NO PART OF THE ASSETS USED BY IT TO ACQUIRE OR HOLD THIS NOTE OR ANY INTEREST HEREIN CONSTITUTES THE ASSETS OF ANY BENEFIT PLAN INVESTOR OR SUCH A GOVERNMENTAL, CHURCH OR NON-U.S. PLAN, OR (B) ITS ACQUISITION, HOLDING AND DISPOSITION OF THIS NOTE OR AN

 

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INTEREST HEREIN DOES NOT AND WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA AND/OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A GOVERNMENTAL, CHURCH OR NON U.S. PLAN, A NON-EXEMPT VIOLATION OF ANY SIMILAR LAWS); (2) NEITHER THE ISSUER NOR ANY OF ITS AFFILIATES IS A “FIDUCIARY” (WITHIN THE MEANING OF SECTION 3(21) OF ERISA OR, WITH RESPECT TO A GOVERNMENTAL, CHURCH OR NON-U.S. PLAN, ANY DEFINITION OF “FIDUCIARY” UNDER SIMILAR LAWS) WITH RESPECT TO THE PURCHASER OR HOLDER IN CONNECTION WITH ANY PURCHASE OR HOLDING OF THE NOTES, OR AS A RESULT OF ANY EXERCISE BY THE ISSUER OR ANY OF ITS AFFILIATES OF ANY RIGHTS IN CONNECTION WITH THE NOTES, AND NO ADVICE PROVIDED BY THE ISSUER OR ANY OF ITS AFFILIATES HAS FORMED A PRIMARY BASIS FOR ANY INVESTMENT DECISION BY OR ON BEHALF OF THE PURCHASER AND HOLDER IN CONNECTION WITH THE NOTES AND THE TRANSACTIONS CONTEMPLATED WITH RESPECT TO THE NOTES; AND (3) IT WILL NOT SELL OR OTHERWISE TRANSFER THIS NOTE OR ANY INTEREST HEREIN OTHERWISE THAN TO A PURCHASER OR TRANSFEREE THAT IS DEEMED TO MAKE THESE SAME REPRESENTATIONS, WARRANTIES AND AGREEMENTS WITH RESPECT TO ITS ACQUISITION, HOLDING AND DISPOSITION OF THIS NOTE.

Section 2.4 Book-Entry Provisions for the Global Notes .

(a) The Global Notes initially shall:

(1) be registered in the name of the Depositary (or a nominee thereof); and

(2) be delivered to the Registrar as custodian for such Depositary.

Members of, or participants in, the Depositary (“ Agent Members ”) shall have no rights under this Supplemental Subordinated Indenture with respect to any Global Note held on their behalf by the Depositary, or the Registrar as its custodian, or under such Global Note, and the Depositary may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing contained herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and the Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Note.

 

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(b) The Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Supplemental Subordinated Indenture, the Base Subordinated Indenture or the Notes.

(c) A Global Note may not be transferred, in whole or in part, to any Person other than the Depositary (or a nominee thereof), and no such transfer to any such other Person may be registered. Beneficial interests in a Global Note may be transferred in accordance with the rules and procedures of the Depositary.

(d) If at any time, the Depositary notifies the Issuer in writing that it is no longer willing or able to continue to act as Depositary for the Global Notes, or the Depositary ceases to be a “clearing agency” registered under the Exchange Act and a successor depositary for the Global Notes is not appointed by the Issuer within 90 days of such notice or cessation, the Depositary shall surrender such Global Note or Global Notes to the Registrar for cancellation and the Issuer shall execute, and the Trustee, upon receipt of an Officers’ Certificate and Issuer Order for the authentication and delivery of Notes, shall authenticate and deliver, in exchange for such Global Note or Global Notes, Physical Notes in an aggregate principal amount equal to the aggregate principal amount of such Global Note or Global Notes. Such Physical Notes shall be registered in such names as the Depositary shall identify in writing as the beneficial owners of the Notes represented by such Global Note or Global Notes (or any nominee thereof).

(e) Notwithstanding the foregoing, in connection with any transfer of beneficial interests in a Global Note to the beneficial owners thereof pursuant to Section 2.4(d), the Registrar shall reflect on its books and records the date and a decrease in the principal amount of such Global Note in an amount equal to the principal amount of the beneficial interests in such Global Note to be transferred.

Section 2.5 Default .

(a) If the Issuer fails to make a payment of interest on any Note when due and payable for reasons other than pursuant to the subordination provisions of the Notes (“ Defaulted Interest ”), it shall pay such Defaulted Interest plus (to the extent lawful) any interest payable on the Defaulted Interest, in any lawful manner. The Issuer may elect to pay any Defaulted Interest, plus any such interest payable on it, to the Persons who are Holders of such Notes on which the interest is due on a subsequent Special Record Date. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Note. The Issuer shall fix any such Special Record Date and payment date for such payment. At least 15 days before any such Special Record Date, the Issuer shall mail to Holders affected thereby a notice that states the Special Record Date, the Interest Payment Date and amount of such interest to be paid.

(b) If the Issuer fails to make payments of principal of, interest on, or other amounts owing under the Notes (i) pursuant to the subordination provisions of the Notes or (ii) due to a Regulatory Bail-in, the Issuer will not be in default, and the Trustee and the holders of the Notes shall not be permitted to accelerate the maturity of the Notes. Moreover, in the event of a Regulatory Bail-in, the holders of the Notes may permanently lose the right to receive such payments. If the Issuer fails to make payments of principal of, interest on, or other amounts owing under the Notes when due for reasons other than (i) pursuant to the subordination provisions of the Notes or (ii) due to a Regulatory Bail-in, the Issuer will be in default on its obligations under the Subordinated Indenture. Nevertheless, neither the Trustee nor the holders of the Notes may accelerate the maturity of the Notes in such case. Furthermore, if the Issuer becomes subject to German insolvency proceedings, the Trustee and Holders of the Notes will have no right to file a claim against the Issuer unless the competent insolvency court allows the filing of subordinated claims.

 

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Section 2.6 Status. The obligations under the Notes constitute unsecured and subordinated obligations of the Issuer ranking pari passu among themselves and pari passu with all other subordinated obligations of the Issuer (unless such obligations are expressed to rank junior to the Notes, in which case the Notes shall rank senior to such junior obligations, but junior to unsubordinated debt). Any right to set off any claims for interest, repayment and any other claims under the Notes (“ Payment Claims ”) against claims of the Issuer will be excluded. No collateral or guarantee shall be given to secure Payment Claims. The Payment Claims shall be subordinated in the event of insolvency or liquidation of the Issuer to the claims of all other creditors which are not also subordinated and shall, in any such event, only be satisfied after all claims against the Issuer which are not subordinated have been satisfied. Prior to any insolvency or liquidation of the Issuer, the Payment Claims shall be subject to any Regulatory Bail-in, and no Holder or holder of any beneficial interest shall have any claim against the Issuer in connection with or arising out of any such Regulatory Bail-in.

ARTICLE 3

A DDITIONAL C OVENANTS

In addition to the covenants set forth in Article 3 of the Base Subordinated Indenture, the Notes shall be subject to the additional covenants set forth in this Article 3 of this Supplemental Subordinated Indenture.

Section 3.1 Payment of Additional Amounts . Every net payment of the principal of, interest on and other amounts owing under the Notes shall be made without any withholding or deduction for or on account of any present or future

 

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Taxes of any nature whatsoever imposed, levied or collected by or on behalf of any Relevant Jurisdiction, or by or on behalf of any political subdivision or authority therein or thereof having the power to tax (“ withholding taxes ”), unless such deduction or withholding is required by law. In such event, the Issuer shall, with respect to any of the Notes and subject to certain exceptions and limitations set forth below, pay any Additional Amounts to the beneficial owners of any Note as may be necessary in order that every net payment of the principal of, interest on and other amounts owing under such Note, after the application of any withholding taxes, will not be less than the amount provided for in such Note to be then due and payable.

The Issuer shall not, however, make any payment of Additional Amounts to any beneficial owner on account of:

(1) any present or future Tax that would not have been so imposed but for the existence of any present or former connection between a Holder or beneficial owner of the Notes and any Relevant Jurisdiction other than the mere holding or beneficial ownership of the Notes;

(2) any present or future Tax that would not have been so imposed but for the presentation by or on behalf of the beneficial owner of such Note for payment on a date more than 15 days after the date on which payment became due and payable or the date on which payment of such Note is duly provided for, whichever occurs later;

(3) any present or future Tax to the extent such deduction or withholding can be avoided or reduced if the Holder or beneficial owner of the Note (or any financial institution through which the holder or beneficial owner holds the Notes or through which payment on the Note is made) (i) makes a declaration of non-residence or other similar claim for exemption to the relevant tax authority or complies with any reasonable certification, documentation, information or other reporting requirement imposed by the relevant tax authority or (ii) enters into or complies with any applicable certification, identification, information, documentation, registration or other reporting requirement or agreement concerning accounts maintained by the holder or beneficial owner (or such financial institution) or concerning ownership of the holder or beneficial owner (or financial institution) or concerning such Holder’s or beneficial owner’s (or such financial institution’s) nationality, residence, identity or connection with the jurisdiction imposing such tax;

 

13


(4) any estate, inheritance, gift, sales, transfer, excise, capital gains, financial transaction or personal property Tax or any similar Tax;

(5) any present or future Tax is payable otherwise than by withholding or deduction from payments on or in respect of such Note;

(6) any present or future Taxes which are deducted or withheld pursuant to (i) European Council Directive 2003/48/EC or any other European Union Directive or Regulation implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income, or (ii) any international treaty or understanding entered into for the purpose of facilitating cooperation in the reporting and collection of savings income and to which (x) the United States, and (y) the European Union or Germany is a party, or (iii) any provision of law implementing, or complying with, or introduced to conform with, such Directive, Regulation, treaty or understanding;

(7) any present or future Taxes which are deducted or withheld from payments on a Note that is presented for payment by or on behalf of a beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Note to another paying agent in a member state of the European Union; and

(8) any combination of items (1) through (7) above.

Nor shall the Issuer pay Additional Amounts with respect to any payment on a Note to a Holder who is a fiduciary or partnership or other than the sole beneficial owner of the payment to the extent the payment would be required by the laws of a Relevant Jurisdiction (or any political subdivision thereof) to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary or a member of the partnership or a beneficial owner who would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the holder of the Note.

For purposes of this Section 3.1, “ Taxes ” means, with respect to payments on the Notes, all future and present taxes, withholdings, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Jurisdiction or any political subdivision therein or thereof having power to tax.

Section 3.2 Written Statement to Trustee . The Issuer will furnish to the Trustee on or before March 31 in each year (beginning with March 31, 2014) a brief certificate that complies with the requirements of the Trust Indenture Act

 

14


(but which need not comply with Section 11.05 of the Base Subordinated Indenture) from the principal executive, financial or accounting officer of the Issuer stating that in the course of the performance by the signer of his duties as an officer of the Issuer he would normally have knowledge of any default or non-compliance by the Issuer in the performance of any covenants or conditions contained in this Supplemental Subordinated Indenture, stating whether or not he has knowledge of any such default or non-compliance and, if so, specifying each such default or non-compliance of which the signer has knowledge and the nature thereof.

ARTICLE 4

R EDEMPTION OR R EPURCHASE OF N OTES

Section 4.1 Deposit of Redemption Price . Prior to 10:00 a.m., New York City time, on any Redemption Date, the Issuer shall deposit with the Paying Agent an amount of money sufficient to pay the Redemption Price in respect of all the Notes to be redeemed on that Redemption Date and accrued and unpaid interest, if any, on such Notes.

Section 4.2 Cessation of Interest Accrual . If the Issuer elects to redeem the Notes, they shall cease to accrue interest from the relevant Redemption Date, unless the Issuer fails to pay the Redemption Price on the Redemption Date.

Section 4.3 Optional Redemption.

(a) The Issuer may redeem all of the Notes, in whole but not in part, at its option on the Reset Date, upon the giving of a notice as described below, provided that, if required under applicable law or regulation, any such redemption will be subject to a requirement to give notice to or obtain the consent of the Relevant Regulator to such redemption and provided further that once CRD 4/CRR has taken effect in the Federal Republic of Germany, the Issuer shall only be permitted to redeem the Notes if, when and to the extent not prohibited by CRD 4/CRR as then in effect in the Federal Republic of Germany. Redemption shall be made at the Redemption Price together with accrued interest to (but excluding) the Reset Date.

(b) Notice of such redemption will be given not less than 30 nor more than 60 days prior to the Reset Date, which date and the Redemption Price will be specified in the notice. Notice to Holders will be given in accordance with Section 12.02 of the Base Subordinated Indenture.

Section 4.4 Tax Redemption .

(a) The Issuer may redeem all of the Notes, in whole but not in part, at its option at any time prior to the Maturity Date, upon the giving of a notice of tax redemption as described below, if the Issuer determines that, as a

 

15


result of: (i) any change in or amendment to the laws, or any regulations or rulings promulgated under the laws of a Relevant Jurisdiction, or of any political subdivision or taxing authority thereof or therein affecting taxation; or (ii) any change in or announcement of an official position regarding the application or interpretation of the laws, regulations or rulings referred to above, in each case, which change or amendment becomes effective or, in the case of a change in or announcement of an official position, is announced, on or after May 21, 2013, the Issuer has or there is a substantial probability that the Issuer shall become obligated to pay Additional Amounts with respect to any of those Notes as described in Section 3.1, provided that, if required under applicable law or regulation, any such redemption will be subject to a requirement to give notice to or obtain the consent of the Relevant Regulator to such redemption and provided further that once CRD 4/CRR has taken effect in the Federal Republic of Germany, the Issuer shall only be permitted to redeem the Notes if, when and to the extent not prohibited by CRD 4/CRR as then in effect in the Federal Republic of Germany. Redemption shall be made at the Redemption Price together with accrued but unpaid interest to (but excluding) the applicable Redemption Date.

(b) Notice of tax redemption will be given not less than 30 nor more than 60 days prior to the date fixed for redemption, which date and the Redemption Price will be specified in the notice. Notice to Holders will be given in accordance with Section 12.02 of the Base Subordinated Indenture.

(c) Before any notice of tax redemption pursuant to Section 4.3(a) is given to the Trustee or the Holders of the Notes, the Issuer (or its successor), shall deliver to the Trustee (i) an Officers’ Certificate stating that the Issuer (or its successor), is entitled to effect such redemption and setting forth a statement of facts showing that the condition or conditions precedent to the right of the Issuer (or its successor) so to redeem have occurred or been satisfied and (ii) an opinion of independent legal counsel satisfactory to the Trustee to the effect that the Issuer is entitled to effect the redemption based on the statement of facts set forth in the certificate; provided that no notice of tax redemption may be given earlier than 60 days prior to the earliest date on which the Issuer would be obligated to pay the additional amounts if a payment in respect of the Notes were then due. Such notice, once given to the Trustee, shall be irrevocable.

Section 4.5 Redemption due to a Capital Disqualification Event.

(a) The Issuer may redeem all of the Notes, in whole but not in part, at its option at any time prior to the Maturity Date, upon the giving of a notice of redemption as described below, if, at any time immediately prior to the giving of the notice referred to above, a Capital Disqualification Event has occurred and is continuing, provided that, if required under applicable law or regulation, any such redemption will be subject to a requirement to give notice to or obtain the consent of the Relevant Regulator to such redemption and provided further that once CRD 4/CRR has taken effect in the Federal Republic of

 

16


Germany, the Issuer shall only be permitted to redeem the Notes if, when and to the extent not prohibited by CRD 4/CRR as then in effect in the Federal Republic of Germany. Redemption shall be made at the Redemption Price together with accrued but unpaid interest to (but excluding) the applicable Redemption Date.

(b) Notice of redemption due to a Capital Disqualification Event will be given not less than 30 nor more than 60 days prior to the date fixed for redemption, which date and the Redemption Price will be specified in the notice. Notice to Holders will be given in accordance with Section 12.02 of the Base Subordinated Indenture.

Section 4.6 Payment on the Maturity Date . Unless previously redeemed or repurchased and cancelled, the Notes will be due and payable on the Maturity Date in the full principal amount together with any accrued and unpaid interest to (but excluding) the Maturity Date. No subsequent agreement may limit the subordination provisions applicable to the Subordinated Notes, amend their maturity date or redemption date to an earlier date or shorten any applicable notice period.

Section 4.7 Repurchase . To the extent the Issuer is permitted to do so under the terms of the Notes and applicable law, including CRD 4/CRR once it is in effect in the Federal Republic of Germany and as then in effect, the Issuer is entitled to purchase Notes in the open market or by tender or by private agreement in any manner and at any price or at differing prices (i) for the purposes of market stabilization, in an amount of up to 3% of the total outstanding amount of all subordinated securities qualifying as lower Tier 2 capital, provided , however, that the Issuer notifies the BaFin and the German Federal Bank ( Deutsche Bundesbank ), or other competent authority, thereof without undue delay, or (ii) as commission agent ( Einkaufskommissionär ). The Issuer may, at its discretion or if required under applicable law or regulation, treat any Notes so purchased beneficially for its own account (other than in connection with dealing in securities) as cancelled, whereupon they will no longer be issued and outstanding. If required under applicable law or regulation, any such purchases will be subject to a requirement to give notice to or obtain the consent of the Relevant Regulator.

Section 4.8 Amounts to be Returned to the Issuer . If any Notes are redeemed or repurchased before the date on which such redemption or repurchase is permitted under the terms thereof (other than a tax redemption or a redemption due to a Capital Disqualification Event) or repurchased by the Issuer otherwise than in accordance with the provisions of Section 10(5a) sentence 6 of the German Banking Act or the applicable provisions of the CRD 4/CRR (once such provisions have taken effect in the Federal Republic of Germany and as then in effect), then any amounts paid must be returned to the Issuer irrespective of any agreement to the contrary, unless (i) the Notes so redeemed or repurchased have been replaced by other regulatory banking capital ( haftendes

 

17


Eigenkapital ) of at least equal status within the meaning of the German Banking Act, or the Relevant Regulator has consented to such redemption or repurchase, or (ii) once the CRD 4/CRR has taken effect in the Federal Republic of Germany, and as then in effect, the CRD 4/CRR provides otherwise.

ARTICLE 5

S ATISFACTION AND D ISCHARGE OF S UPPLEMENTAL S UBORDINATED I NDENTURE

Section 5.1 Satisfaction and Discharge of Supplemental Subordinated Indenture . If at any time (i) the Issuer shall have paid or caused to be paid the principal of and interest on all the Notes (other than Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.09 of the Base Subordinated Indenture) as and when the same shall have become due and payable, or (ii) the Issuer shall have delivered to the Trustee for cancellation all Notes theretofore authenticated (other than any Notes which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.09 of the Base Subordinated Indenture), then this Supplemental Subordinated Indenture shall cease to be of further effect (except as to (i) rights of registration of transfer and exchange of Notes and the Issuer’s right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Notes, (iii) rights of Holders of Notes to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor, (iv) the rights, obligations, duties and immunities of the Trustee hereunder and the Issuer’s obligations related thereto, and (v) the obligations of the Issuer under Section 3.02 of the Base Subordinated Indenture) and the Trustee, on demand of the Issuer accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Issuer, shall execute proper instruments acknowledging such satisfaction of and discharging this Supplemental Subordinated Indenture; provided, that the rights of Holders of the notes to receive amounts in respect of principal of and interest on the Notes held by them shall not be delayed longer than required by then-applicable mandatory rules or policies of any securities exchange upon which the Notes are listed. The Issuer agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Supplemental Subordinated Indenture or the Notes.

ARTICLE 6

M ISCELLANEOUS P ROVISIONS

Section 6.1 Scope of Supplemental Subordinated Indenture . The changes, modifications and supplements to the Base Subordinated Indenture effected by this Supplemental Subordinated Indenture shall only be applicable with respect to, and govern the terms of, the Notes and shall not apply to any other Subordinated Debt Securities that may be issued by the Issuer under the Base Subordinated Indenture.

 

18


Section 6.2 Provisions of Supplemental Subordinated Indenture for the Sole Benefit of Parties and Holders of Notes . Nothing in this Supplemental Subordinated Indenture, the Base Subordinated Indenture or in the Notes, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the Holders of the Notes, any legal or equitable right, remedy or claim under this Supplemental Subordinated Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Notes.

Section 6.3 Successors and Assigns of Issuer Bound by Supplemental Subordinated Indenture . All the covenants, stipulations, promises and agreements in this Supplemental Subordinated Indenture contained by or on behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.

Section 6.4 Notices and Demands on Issuer, Trustee, Agents and Holders of Notes . Any notice or demand which by any provision of this Supplemental Subordinated Indenture is required or permitted to be given or served by the Trustee, by the Agents or by the Holders of Notes to or on the Issuer may be given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address is filed with the Trustee) as follows:

If to the Issuer, to:

Deutsche Bank AG

Attn: Group Treasury, Capital Markets Issuance

Große Gallusstrasse 10-14

60311 Frankfurt am Main

Germany

Any notice, direction, request or demand by the Issuer, by the Agents or by any Holder of Notes to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if delivered in person or mailed by first-class mail to the Trustee at Wilmington Trust, National Association, 166 Mercer Street, Suite 2 R, New York, New York 10012, Attn: Global Capital Markets.

 

19


Any notice, direction, request or demand by the Issuer, by the Trustee or by any Holder of Notes to or upon the Agents may be given or made if mailed by first-class mail or sent by facsimile to:

If to the Agents, to:

Deutsche Bank Trust Company Americas

Trust and Agency Services

60 Wall Street, 27th Floor

Mail Stop: NYC60-2710

New York, New York 10005

Fax: 732-578-4635

Attn: Corporates Team – Deutsche Bank AG

with a copy to:

Deutsche Bank Trust Company Americas

c/o Deutsche Bank National Trust Company

Trust and Agency Services

100 Plaza One, Mailstop JCY03-0699

Jersey City, New Jersey 07311

Fax: 732-578-4635

Attn: Corporates Team – Deutsche Bank AG

Notices to be given to Holders of Notes represented by a Global Note will be given only to the Depositary, as the registered holder, in accordance with its applicable policies as in effect from time to time. Notices to be given in respect of Notes held in street name will be given only to the bank, broker or other financial institution in whose name the Notes are registered, and not the owner of any beneficial interests. Notices to be given to Holders of Physical Notes will be sent by mail to the respective addresses of the holders as they appear in the note register, and will be deemed given when mailed.

Where this Supplemental Subordinated Indenture provides for notice to Holders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder entitled thereto, at his last address as it appears in the register of the Notes. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Supplemental Subordinated Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

In case, by reason of the suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer or Holders of Notes when such notice is required to be given pursuant to any provision of this Supplemental Subordinated Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.

 

20


Section 6.5 Payments Due on Saturdays, Sundays and Holidays . If the date of maturity of interest on or principal of the Notes or the date fixed for redemption or repayment of any such Note shall not be a Business Day, then payment of interest or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, or repayment, as the case may be, and no interest shall accrue for the period after such date.

Section 6.6 Conflict of any Provisions of Supplemental Subordinated Indenture with Trust Indenture Act . If and to the extent that any provision of this Supplemental Subordinated Indenture limits, qualifies or conflicts with the duties imposed by, or with another provision (an “ incorporated provision ”) included in this Supplemental Subordinated Indenture by operation of, Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties or incorporated provision shall control.

Section 6.7 Governing Law as in Base Indenture . This Supplemental Subordinated Indenture and the Base Subordinated Indenture shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of such State, except with respect to the provisions relating to the subordination hereof and thereof, which shall be governed by and construed in accordance with the laws of the Federal Republic of Germany.

Section 6.8 Counterparts . This Supplemental Subordinated Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.

Section 6.9 Effect of Headings . The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

Section 6.10 Submission to Jurisdiction . The Issuer agrees that any legal suit, action or proceeding arising out of or based upon this Supplemental Subordinated Indenture may be instituted in any federal or state court sitting in the Borough of Manhattan, City and State of New York, and, to the fullest extent permitted by law, waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such court in any suit, action or proceeding. The Issuer, as long as any of the Notes remain Outstanding or the parties hereto have any obligation under this Supplemental Subordinated Indenture, shall have an authorized agent (the “ Authorized Agent ”) in the United States upon whom

 

21


process may be served in any such suit, action or proceeding. Service of process upon the Authorized Agent and written notice of such service to the Issuer shall be deemed, in every respect, effective service of process upon the Issuer. The Issuer hereby appoints Deutsche Bank Americas Holding Corp., c/o office of the Secretary, 60 Wall Street, Mail Stop NYC60-4006, New York 10005, Attention: Peter Sturzinger as its Authorized Agent, and represents and warrants that the Authorized Agent has agreed to act as said agent for service of process.

Section 6.11 Not Responsible for Recitals or Issuance of Securities . The recitals contained herein and in the Notes, except the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Supplemental Subordinated Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Issuer of Notes or the proceeds thereof.

Section 6.12 Further Issues. The Issuer may, from time to time, without the consent of the Holders of the Notes, issue additional notes under the Subordinated Indenture having the same ranking and same interest rate, maturity date, redemption terms and other terms as the Notes described in this Subordinated Indenture except for the price to the public and issue date. Any such additional notes, together with the Notes, may constitute a single series of securities under the Subordinated Indenture, provided that if such additional notes have the same CUSIP, ISIN or other identifying number as the outstanding Notes, such additional notes must either (i) be issued with no more than a de minimis amount of original issue discount for U.S. federal income tax purposes or (ii) be otherwise issued in a qualified reopening for U.S. federal income tax purposes. There is no limitation on the amount of notes or other debt securities that the Issuer may issue under this Supplemental Subordinated Indenture or the Base Subordinated Indenture.

Section 6.13 Waiver of Right to Set-Off. By accepting a Note, each Holder will be deemed to have waived any right of set-off, counterclaim or combination of accounts with respect to such Note or the Subordinated Indenture (or between our obligations under or in respect of any Note and any liability owed by a Holder) that they might otherwise have against the Issuer, whether before or during our winding up or administration, and the claims of a Holder of a Note may not be set off against any of the Issuer’s claims.

ARTICLE 7

S UPPLEMENTS TO S UPPLEMENTAL S UBORDINATED I NDENTURE

Section 7.1 Supplements without Consent of Holders . The Issuer and the Trustee may amend, modify or supplement this Supplemental Subordinated Indenture or the Notes without the consent of any Holder to cure any ambiguity or to correct or supplement any provision contained herein which may be

 

22


defective or inconsistent with any other provision contained herein, or to make such other provisions as the Issuer may deem necessary or desirable, provided that no such action shall adversely affect the interests of the Holders of the Notes. Notwithstanding the foregoing, any amendment made solely to conform the provisions of this Supplemental Subordinated Indenture to the description of the Notes contained in the Issuer’s prospectus supplement dated May 21, 2013 will not be deemed to adversely affect the interests of the Holders of the Notes.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Subordinated Indenture to be duly executed all as of May 24, 2013.

 

Very truly yours,
DEUTSCHE BANK AKTIENGESELLSCHAFT
By:  

/s/ Marco Zimmermann

  Name:  

Marco Zimmermann

  Title:  

Director

By:  

/s/ Robert Mueller

  Name:  

Robert Mueller

  Title:  

Director

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee
By:  

/s/ Boris Treyger

  Name:  

Boris Treyger

  Title:  

Vice President

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Paying Agent, Transfer Agent and Registrar and Authenticating Agent
By: Deutsche Bank National Trust Company
By:  

/s/ Linda Reale

  Name:  

Linda Reale

  Title:  

Vice President

By:  

/s/ Rodney Gaughan

  Name:  

Rodney Gaughan

  Title:  

Vice President

 

24


EXHIBIT A

FORM OF GLOBAL NOTE

DEUTSCHE BANK AG

[FORM OF FACE OF DEBT SECURITY]

FIXED TO FIXED RESET RATE SUBORDINATED REGISTERED NOTE

 

REGISTERED      CUSIP: 251525 AM3
No. FXR      ISIN: US251525AM33

$[ insert face amount ]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“ DTC ”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

EACH ACQUIRER AND EACH TRANSFEREE OF BENEFICIAL INTERESTS IN THIS NOTE IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT AT THE TIME OF ITS ACQUISITION AND THROUGHOUT THE PERIOD THAT IT HOLDS THIS NOTE OR ANY INTEREST HEREIN (1) EITHER (A) IT IS NOT, AND IT IS NOT ACTING ON BEHALF OF (AND FOR SO LONG AS IT HOLDS SUCH NOTES OR ANY INTEREST THERE IN IT WILL NOT BE, AND WILL NOT BE ACTING ON BEHALF OF), AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE UNITED STATES EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ ERISA ”)), SUBJECT TO THE PROVISIONS OF PART 4 OF SUBTITLE B OF TITLE I OF ERISA, A PLAN TO WHICH SECTION 4975 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, (“ CODE ”), APPLIES, OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF SUCH AN EMPLOYEE BENEFIT PLAN’S AND/OR PLAN’S INVESTMENT IN SUCH ENTITY (EACH, A “ BENEFIT PLAN INVESTOR ”), OR A GOVERNMENTAL, CHURCH OR NON-U.S. PLAN WHICH IS SUBJECT TO ANY FEDERAL, STATE,

 

A-1


LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND/OR SECTION 4975 OF THE CODE (“ SIMILAR LAWS ”), AND NO PART OF THE ASSETS USED BY IT TO ACQUIRE OR HOLD THIS NOTE OR ANY INTEREST HEREIN CONSTITUTES THE ASSETS OF ANY BENEFIT PLAN INVESTOR OR SUCH A GOVERNMENTAL, CHURCH OR NON-U.S. PLAN, OR (B) ITS ACQUISITION, HOLDING AND DISPOSITION OF THIS NOTE OR AN INTEREST HEREIN DOES NOT AND WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA AND/OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A GOVERNMENTAL, CHURCH OR NON U.S. PLAN, A NON-EXEMPT VIOLATION OF ANY SIMILAR LAWS); (2) NEITHER THE ISSUER NOR ANY OF ITS AFFILIATES IS A “FIDUCIARY” (WITHIN THE MEANING OF SECTION 3(21) OF ERISA OR, WITH RESPECT TO A GOVERNMENTAL, CHURCH OR NON-U.S. PLAN, ANY DEFINITION OF “FIDUCIARY” UNDER SIMILAR LAWS) WITH RESPECT TO THE PURCHASER OR HOLDER IN CONNECTION WITH ANY PURCHASE OR HOLDING OF THE NOTES, OR AS A RESULT OF ANY EXERCISE BY THE ISSUER OR ANY OF ITS AFFILIATES OF ANY RIGHTS IN CONNECTION WITH THE NOTES, AND NO ADVICE PROVIDED BY THE ISSUER OR ANY OF ITS AFFILIATES HAS FORMED A PRIMARY BASIS FOR ANY INVESTMENT DECISION BY OR ON BEHALF OF THE PURCHASER AND HOLDER IN CONNECTION WITH THE NOTES AND THE TRANSACTIONS CONTEMPLATED WITH RESPECT TO THE NOTES; AND (3) IT WILL NOT SELL OR OTHERWISE TRANSFER THIS NOTE OR ANY INTEREST HEREIN OTHERWISE THAN TO A PURCHASER OR TRANSFEREE THAT IS DEEMED TO MAKE THESE SAME REPRESENTATIONS, WARRANTIES AND AGREEMENTS WITH RESPECT TO ITS ACQUISITION, HOLDING AND DISPOSITION OF THIS NOTE.

 

A-2


GLOBAL NOTES

Fixed to Fixed Reset Rate Subordinated Registered Note

 

Original Issue Date

   May 24, 2013.

Reset Date

   May 24, 2023.

Maturity Date

   May 24, 2028.

Face Amount

   $[ insert face amount ].

Aggregate Face Amount

   $1,500,000,000.

Denominations

  

$200,000 and integral multiples of $1,000 in excess thereof.

Fixed Interest Rate

  

From (and including) the Original Issue Date to (but excluding) the Reset Date, 4.296% per annum.

Fixed Reset Interest Rate

  

From (and including) Reset Date to (but excluding) the Maturity Date, 2.2475% above the 5 year Swap Rate.

  

5 year Swap Rate ” means the 5 year semi-annual mid-swap rate as displayed on Reuters screen “ISDAFIX1” (or any successor page) as at 11:00 a.m. (New York time) (the “ Reset Screen Page ”) on the day falling two Business Days prior to the Reset Date (the “ Reset Interest Determination Date ”). In the event that the 5 year Swap Rate does not appear on the Reset Screen Page on the Reset Interest Determination Date, the 5 year Swap Rate shall be the Reset Reference Bank Rate on the Reset Interest Determination Date. “ Reset Reference Bank Rate ” means the percentage rate determined on the basis of the 5 year Swap Rate Quotations provided by five leading swap dealers in the interbank market (the “ Reset

 

A-3


  

Reference Banks ”) to the paying agent at approximately 11:00 a.m. (New York time), on the Reset Interest Determination Date. If at least three quotations are provided, the 5 year Swap Rate will be the arithmetic mean of the quotations, eliminating the highest quotation (or, in the event of equality, one of the highest) and the lowest quotation (or, in the event of equality, one of the lowest). If only two quotations are provided, the 5 year Swap Rate will be the arithmetic mean of the quotations provided. If only one quotation is provided, the 5 year Swap Rate will be the quotation provided. If no quotations are provided, the 5 year Swap Rate shall be equal to the last available 5 year semi-annual mid-swap rate on the Reset Screen Page. Each such “ 5 year Swap Rate Quotation ” means the arithmetic mean of the bid and offered rates for the semi-annual fixed leg (calculated on a basis of a 360-day year of twelve 30-day months) of a fixed-for-floating U.S. dollar interest rate swap which (i) has a term of 5 years commencing on the Reset Date, (ii) is in an amount that is representative of a single transaction in the relevant market at the relevant time with an acknowledged dealer of good credit in the swap market and (iii) has a floating leg based on the 3-month U.S. dollar LIBOR rate (calculated on basis of the actual number of days elapsed in a 360-day year).

Interest Payment Date(s)

  

May 24 and November 24 in each year, commencing on November 24, 2013.

Optional Redemption

   Yes.

Tax Redemption

   Yes.

 

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Capital Disqualification Event Redemption

   Yes.

Payment of Additional Tax Amounts

   Yes.

 

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Deutsche Bank Aktiengesellschaft, a stock corporation ( Aktiengesellschaft ) organized under the laws of the Federal Republic of Germany (together with its successors and assigns, the “ Issuer ”), for value received, hereby promises to pay to Cede & Co., or registered assignees, the amount of cash due with respect to the principal sum specified above on the Maturity Date specified above (except to the extent previously redeemed or repaid) and to pay interest thereon at the applicable interest rate per annum specified above from and including the Original Issue Date specified above until but excluding the date the principal amount is paid or duly made available for payment (except as provided below) semi-annually in arrears on the Interest Payment Dates specified above in each year on each Interest Payment Date, and at maturity (or on any redemption or repayment date).

Interest on this Note will accrue from and including the most recent Interest Payment Date to which interest has been paid or duly provided for, until but excluding the date the principal hereof has been paid or duly made available for payment (except as provided below). The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, subject to certain exceptions described herein, be paid to the person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Business Day (as defined on the reverse of this Note) immediately preceding the relevant date of payment with respect of such Interest Payment Date (each such date a “ Record Date ”); provided , however , that interest payable at maturity (or on any redemption or repayment date) will be payable to the person to whom the principal hereof shall be payable.

Payment of the principal of this Note and premium, if any and the interest due at maturity (or on any redemption or repayment date) will be made in immediately available funds upon surrender of this Note at the office or agency of the Paying Agent, as defined on the reverse hereof, maintained for that purpose in the Borough of Manhattan, The City of New York, or at such other paying agency as the Issuer may determine (each, a “ Paying Agent ,” which term shall include the Paying Agent), in U.S. dollars. U.S. dollar payments of interest, other than interest due at maturity or any date of redemption or repayment, will be made by U.S. dollar check mailed to the address of the person entitled thereto as such address shall appear in the register of this Note. A holder of U.S. $10,000,000 or more in aggregate principal amount of Notes having the same Interest Payment Date, the interest on which is payable in U.S. dollars, will be entitled to receive payments of interest, other than interest due at maturity or on any date of redemption or repayment, by wire transfer of immediately available funds if appropriate wire transfer instructions have been received by the Paying Agent in writing not less than 15 calendar days prior to the applicable Interest Payment Date.

Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Subordinated Indenture, as defined on the reverse hereof, or be valid or obligatory for any purpose.

 

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IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.

 

DATED:

    DEUTSCHE BANK AG
    By:  

 

      Name:
      Title:
    By:  

 

      Name:
      Title:

 

 

TRUSTEE’S CERTIFICATE

        OF AUTHENTICATION

 

This is one of the Notes referred to in the within-mentioned Subordinated Indenture.

  DEUTSCHE BANK TRUST COMPANY AMERICAS, as Authenticating Agent
By:   DEUTSCHE BANK NATIONAL TRUST COMPANY
By:  

 

  Authorized Officer:

 

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[FORM OF REVERSE OF SECURITY]

This Note is one of a duly authorized issue of Global Notes of the Issuer. The Notes are issuable under a Subordinated Indenture, consisting of the base subordinated indenture, dated as of May 21, 2013, among the Issuer, Wilmington Trust, National Association, as trustee (the “ Trustee ,” which term includes any successor trustee under the Subordinated Indenture), and Deutsche Bank Trust Company Americas (“ DBTCA ”), as transfer agent (the “ Transfer Agent ”), paying agent (the “ Paying Agent ”), registrar (the “ Registrar ”) and authenticating agent (the “ Authenticating Agent ”) (the “ Base Subordinated Indenture ,” as may be amended from time to time), and a first supplemental subordinated indenture, dated as of May 24, 2013 among the Issuer, the Trustee and DBTCA (the “ Supplemental Subordinated Indenture ” and, together with the Base Subordinated Indenture, the “ Subordinated Indenture ”). Reference is hereby made to the Subordinated Indenture for a statement of the respective rights, limitations of rights, duties and immunities of the Issuer, the Trustee and holders of the Notes and the terms upon which the Notes are, and are to be, authenticated and delivered. The Issuer has appointed DBTCA acting through its principal corporate trust office in the Borough of Manhattan, The City of New York, as its Paying Agent, Transfer Agent and Registrar and Authenticating Agent. The term “Paying Agent” includes any additional or successor Paying Agent appointed by the Issuer with respect to the Notes. To the extent not inconsistent herewith, the terms of the Subordinated Indenture are hereby incorporated by reference herein.

This Note will not be subject to any sinking fund and will not be redeemable or subject to payment at the option of the holder prior to maturity.

Interest payments on this Note will include interest accrued to but excluding the Interest Payment Dates or the Maturity Date (or any earlier redemption or repayment date), as the case may be. Interest payments for this Note will be computed and paid on the basis of a 360-day year of twelve 30-day months.

In the case where the calendar date indicated on the face hereof as the Interest Payment Date or the Maturity Date (or any redemption or repayment date) does not fall on a Business Day, payment of interest, premium, if any, or principal otherwise payable on such calendar date need not be made on such date, but may be made on the immediately following Business Day with the same force and effect as if made on the indicated calendar date, and no interest on such payment shall accrue for the period from and after the indicated calendar date to such Business Day.

This Note constitutes the direct, unconditional and unsecured obligations of the Issuer ranking without preference or priority among themselves. The obligations of the Issuer under the terms of this Note, whether on account of principal, interest or otherwise, are subordinated to the Senior Indebtedness (as defined below) of the Issuer and will rank junior to the claims of the holders of all Senior Indebtedness of the Issuer in the event of bankruptcy or insolvency ( Insolvenzverfahren ), suspension of payments, dissolution, liquidation ( Liquidation ) or winding up of the Issuer, but will rank at least pari passu with the claims of the holders of all other subordinated indebtedness of the Issuer, except that it shall rank in priority to the claims of the holders of any subordinated indebtedness of the Issuer that by its express terms is stated to rank junior to this Note. In the event of bankruptcy or insolvency, suspension of payments, dissolution, liquidation or winding up of the Issuer, no amounts will be payable under this Note until the claims of all creditors of Senior Indebtedness have been satisfied in full.

 

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Senior Indebtedness ” means any indebtedness or other payment obligation of the Issuer that is not expressed to be subordinated, including, but not limited to: (a) the principal of and premium, if any, and interest, on, whether outstanding now or incurred later, (1) all indebtedness for money borrowed by the Issuer, including indebtedness of others guaranteed by the Issuer, other than any subordinated debt securities, indebtedness that is expressed to rank junior to subordinated debt securities and other indebtedness that is expressly stated as not senior, and (2) any amendments, renewals, extensions, modifications and refundings of any indebtedness, unless in any such case the instrument evidencing the indebtedness provides that it is not senior in right of payment to the Securities; (b) all of the Issuer’s capital lease obligations and any synthetic leases or tax retention operating leases; (c) all of the Issuer’s obligations issued or assumed as the deferred purchase price of property, and all conditional sale or title retention agreements; (d) all of the Issuer’s obligations, contingent or otherwise, in respect of any letters of credit, bankers acceptances, security purchase facilities and similar credit transactions; (e) all of the Issuer’s obligations in respect of interest rate swap, cap or similar agreements, interest rate future or options contracts, currency swap agreements, currency future or option contracts, commodity contracts and other similar agreements; (f) all obligations of the type referred to in clauses (a) through (e) of other persons for the payment of which the Issuer is responsible or liable as obligor, guarantor or otherwise; and (g) all obligations of the type referred to in clauses (a) through (f) of other persons secured by any lien on any of the Issuer’s property or assets whether or not such obligation is assumed by the Issuer.

The obligations under this Note constitute unsecured and subordinated obligations of the Issuer ranking pari passu among themselves and pari passu with all other subordinated obligations of the Issuer (unless such obligations are expressed to rank junior to the Notes, in which case the Notes shall rank senior to such junior obligations, but junior to unsubordinated debt). Any right to set off any claims for interest, repayment and any other claims under this Note (“ Payment Claims ”) against claims of the Issuer will be excluded. No collateral or guarantee shall be given to secure Payment Claims. The Payment Claims shall be subordinated in the event of insolvency or liquidation of the Issuer to the claims of all other creditors which are not also subordinated and shall, in any such event, only be satisfied after all claims against the Issuer which are not subordinated have been satisfied. Prior to any insolvency or liquidation of the Issuer, the Payment Claims shall be subject to any Regulatory Bail-in, and no holder or any holder of any beneficial interest shall have any claim against the Issuer in connection with or arising out of any such Regulatory Bail-in.

Regulatory Bail-in ” means a subjection of the claims for payment of principal, interest or other amounts under the Notes to a permanent reduction, including to zero, or a conversion of the Notes, in whole or in part, into equity of the Issuer, such as ordinary shares, in each case pursuant to German law.

This Note, and any Note or Notes issued upon transfer or exchange hereof, is issuable only in fully registered form, without coupons, and is issuable only in the minimum denominations set forth on the face hereof or any amount in excess thereof which is an integral multiple thereof.

 

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DBTCA has been appointed Registrar and Transfer Agent for this Note, and DBTCA will maintain at its office in The City of New York a register for the registration and transfer of Notes. This Note may be transferred at either the aforesaid New York office of DBTCA by surrendering this Note for cancellation, accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Registrar and duly executed by the registered holder hereof in person or by the holder’s attorney duly authorized in writing, and thereupon the Registrar shall issue in the name of the transferee or transferees, in exchange herefor, a new Note or Notes having identical terms and provisions and having a like aggregate principal amount in authorized denominations, subject to the terms and conditions set forth herein; provided , however , that the Registrar will not be required (i) to register the transfer of or exchange any Note that has been called for redemption in whole or in part, except the unredeemed portion of Notes being redeemed in part, (ii) to register the transfer of or exchange any Note if the holder thereof has exercised his right, if any, to require the Issuer to repurchase such Note in whole or in part, except the portion of such Note not required to be repurchased, or (iii) to register the transfer of or exchange Notes to the extent and during the period so provided in the Subordinated Indenture with respect to the redemption of Notes. Notes are exchangeable at said offices for other Notes of other authorized denominations of equal aggregate principal amount having identical terms and provisions. All such registrations, exchanges and transfers of Notes will be free of service charge, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge in connection therewith. All Notes surrendered for exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Registrar and executed by the registered holder in person or by the holder’s attorney duly authorized in writing. The date of registration of any Note delivered upon any exchange or transfer of Notes shall be such that no gain or loss of interest results from such exchange or transfer.

In case this Note shall at any time become mutilated, defaced or be destroyed, lost or stolen and this Note or evidence of the loss, theft or destruction thereof (together with the indemnity hereinafter referred to and such other documents or proof as may be required in the premises) shall be delivered to the Trustee, the Issuer in its discretion may execute a new Note of like tenor in exchange for this Note, but, in the case of any destroyed or lost or stolen Note, only upon receipt of evidence satisfactory to the Trustee and the Issuer that this Note was destroyed or lost or stolen and, if required, upon receipt also of indemnity satisfactory to each of them. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the owner of this Note mutilated, defaced, destroyed, lost or stolen.

Every net payment of the principal of, interest on and other amounts owing under this Note shall be made without any withholding or deduction for or on account of any present or future Taxes of any nature whatsoever imposed, levied or collected by or on behalf of any Relevant Jurisdiction, as defined below, or by or on behalf of any political subdivision or authority therein or thereof having the power to tax (“ withholding taxes ”), unless such deduction or withholding is required by law. In such event, the Issuer shall, with respect to this Note and subject to certain exceptions and limitations set forth below, pay any additional amounts to the beneficial owners of this Note as may be necessary in order that every net payment of the principal of, interest on and other amounts owing under this Note, after the application of any withholding taxes, will not be less than the amount provided for in this Note to be then due and payable (an “ Additional Amount ”).

 

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Relevant Jurisdiction ” means the Federal Republic of Germany, the United States or the jurisdiction of residence or incorporation of any successor corporation to the Issuer.

The Issuer shall not, however, make any payment of Additional Amounts to any beneficial owner on account of:

(1) any present or future Tax that would not have been so imposed but for the existence of any present or former connection between a holder or beneficial owner of this Note and any Relevant Jurisdiction other than the mere holding or beneficial ownership of this Note;

(2) any present or future Tax that would not have been so imposed but for the presentation by or on behalf of the beneficial owner of this Note for payment on a date more than 15 days after the date on which payment became due and payable or the date on which payment of this Note is duly provided for, whichever occurs later;

(3) any present or future Tax to the extent such deduction or withholding can be avoided or reduced if the holder or beneficial owner of this Note (or any financial institution through which the holder or beneficial owner holds this Note or through which payment on this Note is made) (i) makes a declaration of non-residence or other similar claim for exemption to the relevant tax authority or complies with any reasonable certification, documentation, information or other reporting requirement imposed by the relevant tax authority or (ii) enters into or complies with any applicable certification, identification, information, documentation, registration or other reporting requirement or agreement concerning accounts maintained by the holder or beneficial owner (or such financial institution) or concerning ownership of the holder or beneficial owner (or financial institution) or concerning such holder’s or beneficial owner’s (or such financial institution’s) nationality, residence, identity or connection with the jurisdiction imposing such tax;

(4) any estate, inheritance, gift, sales, transfer, excise, capital gains, financial transaction or personal property Tax or any similar Tax;

(5) any present or future Tax is payable otherwise than by withholding or deduction from payments on or in respect of this Note;

(6) any present or future Taxes which are deducted or withheld pursuant to (i) European Council Directive 2003/48/EC or any other European Union Directive or Regulation implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income, or (ii) any international treaty or understanding entered into for the purpose of facilitating cooperation in the reporting and collection of savings income and to which (x) the United States, and (y) the European Union or Germany is a party, or (iii) any provision of law implementing, or complying with, or introduced to conform with, such Directive, Regulation, treaty or understanding;

 

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(7) any present or future Taxes which are deducted or withheld from payments on a Note that is presented for payment by or on behalf of a beneficial owner who would have been able to avoid such withholding or deduction by presenting this Note to another paying agent in a member state of the European Union; and

(8) any combination of items (1) through (7) above.

Nor shall the Issuer pay Additional Amounts with respect to any payment on this Note to a holder who is a fiduciary or partnership or other than the sole beneficial owner of the payment to the extent the payment would be required by the laws of a Relevant Jurisdiction (or any political subdivision thereof) to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary or a member of the partnership or a beneficial owner who would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the holder of this Note.

Taxes ” means, with respect to payments on this Notes, all future and present taxes, withholdings, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Jurisdiction or any political subdivision therein or thereof having power to tax.

An “ Event of Default ” with respect to this Note means the opening of insolvency proceedings against the Issuer by a German court having jurisdiction over the Issuer.

There are no other events of default under this Note. In particular, neither non-viability (as defined under the laws governing the supervision of financial institutions, as applicable in the Federal Republic of Germany) nor a Regulatory Bail-in in connection therewith will constitute an Event of Default with respect to this Note. If an Event of Default with respect to this Note occurs or is continuing, the Trustee or the Holder or Holders of not less than 33  1 / 3 % in aggregate principal amount of all outstanding subordinated debt securities issued under the Base Subordinated Indenture, voting as one class, by notice in writing to the Issuer, may declare the principal amount of this Note and interest accrued thereon to be due and payable immediately in accordance with the terms of the Base Subordinated Indenture.

If the Issuer fails to make a payment of interest on any Note when due and payable for reasons other than pursuant to the subordination provisions of the Notes (“ Defaulted Interest ”), it shall pay such Defaulted Interest plus (to the extent lawful) any interest payable on the Defaulted Interest, in any lawful manner. The Issuer may elect to pay any Defaulted Interest, plus any such interest payable on it, to the Persons who are Holders of such Notes on which the interest is due on a subsequent special record date set by the Trustee (the “ Special Record Date ”). The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Note. The Issuer shall fix any such Special Record Date and payment date for such payment. At least 15 days before any such Special Record Date, the Issuer shall mail to Holders affected thereby a notice that states the Special Record Date, the Interest Payment Date and amount of such interest to be paid.

 

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If the Issuer fails to make payments of principal of, interest on, or other amounts owing under this Note (i) pursuant to the subordination provisions of the Notes or (ii) due to a Regulatory Bail-in, the Issuer will not be in default, and the Trustee and the holder of this Note shall not be permitted to accelerate the maturity of this Note. Moreover, in the event of a Regulatory Bail-in, the holder of this Note may permanently lose the right to receive such payments. If the Issuer fails to make payments of principal of, interest on, or other amounts owing under this Note when due for reasons other than (i) pursuant to the subordination provisions of the Notes or (ii) due to a Regulatory Bail-in, the Issuer will be in default on its obligations under the Subordinated Indenture. Nevertheless, neither the Trustee nor the holders of the Notes may accelerate the maturity of this Note in such case. Furthermore, if the Issuer becomes subject to German insolvency proceedings, the Trustee and holder of this Note will have no right to file a claim against the Issuer unless the competent insolvency court allows the filing of subordinated claims.

Upon the occurrence of any Event of Default or any default in the payment of principal of, interest on, or other amounts owing under this Note, the Issuer shall give prompt written notice to the Trustee. In accordance with the Subordinated Indenture, the Trustee may proceed to protect and enforce its rights and the rights of the holders of this Note whether in connection with any breach by the Issuer of its obligations under this Note, the Subordinated Indenture or otherwise, by such judicial proceedings as the Trustee shall deem most effective, provided that the Issuer shall not, as a result of the bringing of such judicial proceedings, be required to pay any amount representing or measured by reference to principal or interest on this Note prior to any date on which the principal of, or any interest on, this Note would have otherwise been payable.

Other than the limited remedies specified above, no remedy against the Issuer shall be available to the Trustee or the holders of this Note whether for the recovery of amounts owing in respect of this Note or under the Subordinated Indenture or in respect of any breach by the Issuer of its obligations under the Subordinated Indenture or in respect of this Note, except that the Trustee and the holders shall have such rights and powers as they are required to have under the Trust Indenture Act, and provided that any payments are subject to the subordination provisions of the Notes and any Regulatory Bail-In set forth in the Subordinated Indenture.

The Issuer may redeem this Note, in whole but not in part, at its option on the Reset Date, upon the giving of a notice as described below, provided that, if required under applicable law or regulation, any such redemption will be subject to a requirement to give notice to or obtain the consent of the Relevant Regulator to such redemption and provided further that once CRD 4/CRR has taken effect in the Federal Republic of Germany, the Issuer shall only be permitted to redeem the Notes if, when and to the extent not prohibited by CRD 4/CRR as then in effect in the Federal Republic of Germany. Redemption shall be made at 100% of the principal amount of the Notes together with accrued interest to (but excluding) the Reset Date. Notice of redemption on the Reset Date will be given not less than 30 nor more than 60 days prior to the Reset Date, which date and the redemption price will be specified in the notice.

 

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Relevant Regulator ” means the BaFin or any other competent authority assuming the relevant supervisory functions performed by the BaFin as of the date first written above.

CRD 4/CRR ” means, taken together, (i) the CRD 4, (ii) the CRR and (iii) any Capital Regulations (as defined below) relating thereto.

CRD 4 ” means a directive of the European Parliament and of the Council on the access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms and amending Directive 2002/87/EC of the European Parliament and of the Council on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate, the first draft of which was published on July 20, 2011, and any successor directive.

CRR ” means a regulation of the European Parliament and of the Council on prudential requirements for credit institutions and investment firms, the first draft of which was published on July 20, 2011, and any successor regulation.

Capital Regulations ” means, at any time, the regulations, requirements, guidelines and policies relating to capital adequacy adopted by bodies of the European Union or the Federal Republic of Germany or any other competent authority then in effect in the Federal Republic of Germany and applicable to the Issuer.

The Issuer may redeem this Note, in whole but not in part, at its option at any time prior to the Maturity Date, upon the giving of a notice of tax redemption as described below, if the Issuer determines that, as a result of: (i) any change in or amendment to the laws, or any regulations or rulings promulgated under the laws of a Relevant Jurisdiction, or of any political subdivision or taxing authority thereof or therein affecting taxation; or (ii) any change in or announcement of an official position regarding the application or interpretation of the laws, regulations or rulings referred to above, in each case, which change or amendment becomes effective or, in the case of a change in or announcement of an official position, is announced, on or after May 21, 2013, the Issuer has or there is a substantial probability that the Issuer shall become obligated to pay Additional Amounts with respect to any of this Note as described below, provided that, if required under applicable law or regulation, any such redemption will be subject to a requirement to give notice to or obtain the consent of the Relevant Regulator to such redemption and provided further that once CRD 4/CRR has taken effect in the Federal Republic of Germany, the Issuer shall only be permitted to redeem the Notes if, when and to the extent not prohibited by CRD 4/CRR as then in effect in the Federal Republic of Germany. Redemption shall be made at 100% of the principal amount of this Note together with accrued but unpaid interest to (but excluding) the date fixed for redemption. Notice of tax redemption will be given not less than 30 nor more than 60 days prior to the date fixed for redemption, which date and the redemption price will be specified in the notice.

Before any notice of tax redemption is given to the Trustee or the holders of this Note, the Issuer (or its successor), shall deliver to the Trustee (i) an Officers’ Certificate stating that the Issuer (or its successor), is entitled to effect such redemption and setting forth a statement of facts showing that the condition or conditions precedent to the right of the Issuer (or its successor) so to redeem have occurred or been satisfied and (ii) an opinion of independent legal

 

A-14


counsel satisfactory to the Trustee to the effect that the Issuer is entitled to effect the redemption based on the statement of facts set forth in the certificate; provided that no notice of tax redemption may be given earlier than 60 days prior to the earliest date on which the Issuer would be obligated to pay the additional amounts if a payment in respect of this Note were then due. Such notice, once given to the Trustee, shall be irrevocable.

The issuer may redeem this Note, in whole but not in part, at its option at any time prior to the Maturity Date, upon the giving of a notice of redemption as described below, if, at any time immediately prior to the giving of the notice referred to above, a Capital Disqualification Event (as defined below) has occurred and is continuing, provided that, if required under applicable law or regulation, any such redemption will be subject to a requirement to give notice to or obtain the consent of the Relevant Regulator to such redemption and provided further that once CRD 4/CRR has taken effect in the Federal Republic of Germany, the Issuer shall only be permitted to redeem the Notes if, when and to the extent not prohibited by CRD 4/CRR as then in effect in the Federal Republic of Germany. Redemption shall be made at 100% of the principal amount of this Note together with accrued but unpaid interest to (but excluding) the date fixed for redemption. Notice of redemption due to a Capital Disqualification Event will be given not less than 30 nor more than 60 days prior to the date fixed for redemption, which date and the redemption price will be specified in the notice.

Capital Disqualification Event ” shall be deemed to have occurred if, as a result of any amendment or supplement to, or change in, the Capital Regulations which are in effect at the Issue Date, this Note is fully excluded from Tier 2 Capital (as defined in the Capital Regulations) of the Issuer and/or the Deutsche Bank Group.

If the Issuer elects to redeem this Note, it will cease to accrue interest from the date fixed for such redemption by or pursuant to this Supplemental Subordinated Indenture, unless the Issuer fails to pay the applicable redemption price of this Note on the date fixed for redemption.

The Issuer and the Trustee may amend, modify or supplement the Supplemental Subordinated Indenture or this Note without the consent of any holder to cure any ambiguity or to correct or supplement any provision contained herein which may be defective or inconsistent with any other provision contained herein, or to make such other provisions as the Issuer may deem necessary or desirable, provided that no such action shall adversely affect the interests of the holders of this Note. Notwithstanding the foregoing, any amendment made solely to conform the provisions of the Supplemental Subordinated Indenture to the description of the Notes contained in the Issuer’s prospectus supplement dated May 21, 2013 will not be deemed to adversely affect the interests of the holders of this Note.

The Base Subordinated Indenture permits the Issuer and the Trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the subordinated debt securities of all series issued under the Base Subordinated Indenture then outstanding and affected (voting as one class), to execute supplemental indentures adding any provisions to or changing in any manner the rights of the holders of each series so affected; provided that the Issuer and the Trustee may not, without the consent of the holder of each outstanding debt security affected hereby, (a) (i) change the final maturity of this Note, (ii) reduce the principal amount hereof, (iii) reduce the rate or change the time of payment of interest hereon, (iv) reduce

 

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any amount payable on redemption hereof, (v) make the principal hereof (including any amount in respect of original issue discount), or interest hereon payable in any coin or currency other than that provided in this Note or in accordance with the terms hereof, (vi) modify or amend any provisions for converting any currency into any other currency as provided in this Note or in accordance with the terms hereof, (vii) impair or affect the right of any Note holder to institute suit for the payment hereof, (viii) modify the provisions of the Subordinated Indenture with respect to the subordination of this Note in a manner adverse to the holders, in each case without the consent of the holder of each subordinated debt security so affected; or (b) reduce the aforesaid percentage of subordinated debt securities of all series issued under the Base Subordinated Indenture, the consent of the holders of which is required for any such supplemental indenture, without the consent of the holders of each subordinated debt security so affected.

So long as this Note shall be outstanding, the Issuer will cause to be maintained an office or agency for the payment of the principal of and premium, if any, and interest on this Note as herein provided in the Borough of Manhattan, The City of New York, and an office or agency in said Borough of Manhattan for the registration, transfer and exchange as aforesaid of this Note. The Issuer may designate other agencies for the payment of said principal, premium and interest at such place or places outside the United States (subject to applicable laws and regulations) as the Issuer may decide. So long as there shall be such an agency, the Issuer shall keep the Trustee advised of the names and locations of such agencies, if any are so designated.

With respect to moneys paid by the Issuer and held by the Trustee or any Paying Agent for payment of the principal of or interest or premium, if any, on any Notes that remain unclaimed at the end of two years after such principal, interest or premium shall have become due and payable (whether at maturity or upon call for redemption or otherwise), (i) the Trustee or such Paying Agent shall notify the holders of this Note that such moneys shall be repaid to the Issuer and any person claiming such moneys shall thereafter look only to the Issuer for payment hereof and (ii) such moneys shall be so repaid to the Issuer. Upon such repayment all liability of the Trustee or such Paying Agent with respect to such moneys shall thereupon cease, without, however, limiting in any way any obligation that the Issuer may have to pay the principal of or interest or premium, if any, on this Note as the same shall become due.

No provision of this Note or of the Subordinated Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the amount of cash, or other property, as determined in accordance with the provisions set forth in this Note due with respect to the principal of, premium, if any, and interest on this Note at the time, place, and rate, and in the coin or currency, herein prescribed unless otherwise agreed between the Issuer and the registered holder of this Note.

Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the holder in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Trustee or any such agent shall be affected by notice to the contrary.

No recourse shall be had for the payment of the principal of, premium, if any, or the interest on this Note, for any claim based hereon, or otherwise in respect hereof, or based on or in

 

A-16


respect of the Subordinated Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Issuer or of any successor corporation, either directly or through the Issuer or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.

This Note and the Subordinated Indenture shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of such State, except with respect to the subordinated provisions hereof and thereof, which shall be governed by and construed in accordance with the laws of the Federal Republic of Germany, and except as may otherwise be required by mandatory provisions of law. As used herein:

(a) the term “ Business Day ” means, a day on which commercial banks and foreign exchange markets settle payments and are open for general business (including dealing in foreign exchange and foreign currency deposits) in New York City and London.

(b) the term “ Notices ” refers to notices to the holders of the Notes at each holder’s address as that address appears in the register for the Notes by first class mail, postage prepaid, and to be given by publication in an authorized newspaper in the English language and of general circulation in the Borough of Manhattan, The City of New York; provided that notice may be made, at the option of the Issuer, through the customary notice provisions of the clearing system or systems through which beneficial interests in this Note are owned. Such Notices will be deemed to have been given on the date of such publication (or other transmission, as applicable), or if published in such newspapers on different dates, on the date of the first such publication;

(c) the term “ United States ” means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

All other terms used in this Note which are defined in the Subordinated Indenture and not otherwise defined herein shall have the meanings assigned to them in the Subordinated Indenture.

 

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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto

 

 

[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]

 

 

 

 

 

 

[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]

the within Note and all rights thereunder, hereby irrevocably constituting and appointing such person attorney to transfer such Note on the books of the Issuer, with full power of substitution in the premises.

 

Dated:  

 

 

NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever.

 

A-18

LOGO

EXHIBIT 5.4

Writer’s Direct Dial: +49 69 97 10 30

E-Mail: wgreenberg@cgsh.com

May 24, 2013

Deutsche Bank Aktiengesellschaft

Taunusanlage 12

60325 Frankfurt am Main

Germany

Ladies and Gentlemen:

We have acted as special United States counsel to Deutsche Bank Aktiengesellschaft, a corporation organized under the laws of the Federal Republic of Germany (the “Bank”), in connection with the Bank’s offering pursuant to a registration statement on Form F-3 (No. 333-184193) (the “Registration Statement”) and the prospectus dated September 28, 2012, as supplemented by the prospectus supplement dated May 21, 2013 (together, the “Prospectus”) of $1,500,000,000 aggregate principal amount of the Fixed to Fixed Reset Rate Subordinated Tier 2 Notes Due 2028 (the “Notes”) to be issued under a Subordinated Indenture dated as of May 21, 2013 (the “Base Indenture”), as supplemented by the First Supplemental Subordinated Indenture dated May 24, 2013 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), in each case among the Bank, Wilmington Trust, National Association, as trustee (the “Trustee”) and Deutsche Bank Trust Company Americas, as paying agent, transfer agent and registrar and authenticating agent (the “Agent”).

In arriving at the opinions expressed below, we have reviewed the following documents:

 

  (a) the Registration Statement and the documents incorporated by reference therein;

 

  (b) a copy of the Notes in global form as executed by the Bank and authenticated by the Agent; and

 

LOGO


 

p. 2

 

  (c) an executed copy of the Indenture.

In addition, we have made such investigations of law, as we have deemed appropriate as a basis for the opinions expressed below.

In rendering the opinions expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed.

Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that the Notes have been duly executed and delivered by the Bank under the law of the State of New York and are the valid, binding and enforceable obligations of the Bank, entitled to the benefits of the Indenture (except that we express no opinion with respect to the validity, binding effect or enforceability of the subordination provisions of the terms of the Notes, which are expressed to be governed by German law).

Insofar as the foregoing opinions relate to the validity, binding effect or enforceability of any agreement or obligation of the Bank, (a) we have assumed that the Bank and each other party to such agreement or obligation has satisfied those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption is made as to the Bank regarding matters of the federal law of the United States of America or the law of the State of New York that in our experience normally would be applicable to general business entities with respect to such agreement or obligation), (b) such opinion is subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity and (c) such opinions are subject to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors’ rights.

The foregoing opinions are limited to the federal law of the United States of America and the law of the State of New York.

We express no opinion as to the subject matter jurisdiction of any United States Federal court to adjudicate any action relating to the Notes where jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332 does not exist. We express no opinion as to the enforceability of Section 11.13 of the Base Indenture relating to currency indemnity.

We note that by statute New York provides that a judgment or decree rendered in a currency other than the currency of the United States shall be converted into U.S. dollars at the rate of exchange prevailing on the date of entry of the judgment or decree. There is no corresponding Federal statute and no controlling Federal court decision on this issue. Accordingly, we express no opinion as to whether a Federal court would award a judgment in a currency other than U.S. dollars or, if it did so, whether it would order conversion of the judgment into U.S. dollars.


 

p. 3

 

We hereby consent to the use of our name in the Prospectus under the heading “Legal Matters,” as counsel for the Bank who has passed on the validity of the Notes and to the filing of this opinion with the Commission as Exhibit 5.4 to the Bank’s Current Report on Form 6-K dated May 24, 2013. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder. We assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein.

 

CLEARY GOTTLIEB STEEN & HAMILTON LLP
By   /s/ Ward A. Greenberg
 

Ward A. Greenberg, a Partner

Exhibit 5.5

 

[Letterhead of Deutsche Bank AG]

Deutsche Bank Aktiengesellschaft

Taunusanlage 12

60325 Frankfurt am Main

Germany

May 24, 2013

Deutsche Bank Aktiengesellschaft – Fixed to Fixed Reset Rate Subordinated Tier 2 Notes Due 2028

Ladies and Gentlemen:

In our capacity as Counsel of Deutsche Bank Aktiengesellschaft (the “ Bank ”) we have advised the Bank as to matters of German law in connection with the offering and sale (the “ Offer ”) of $1,500,000,000 aggregate principal amount of the Fixed to Fixed Reset Rate Subordinated Tier 2 Notes Due 2028 (the “ Notes ”) issued by the Bank pursuant to a Subordinated Indenture, dated as of May 21, 2013 (the “ Base Indenture ”) as supplemented by the First Supplemental Subordinated Indenture, dated May 24, 2013 (the “ Supplemental Indenture ” and together with the Base Indenture, the “ Indenture ”), in each case among the Bank, Wilmington Trust, National Association, as trustee (the “ Trustee ”) and Deutsche Bank Trust Company Americas, as paying agent, transfer agent and registrar and authenticating agent (the “ Agent ”). This opinion relates solely to matters of German law.

For the purpose of this opinion we have examined the following documents:

 

  (a) the Articles of Association (Satzung) of the Bank as currently in force;

 

  (b) copies of the executed Purchase Agreement, dated May 21, 2013, among the Bank and the several managers named in Schedule B thereto (the “ Managers ”) the executed Subordinated Indenture, dated May 21, 2013, the executed First Supplemental Subordinated Indenture, dated May 24, 2013, and the Notes in global form as executed by the Bank and authenticated by the Agent;

 

  (c) a copy of power of attorney issued on behalf of the Bank by Anshuman Jain and Stefan Krause, members of the Management Board of the Bank, on August 28, 2012 (the power of attorney issued on August 28, 2012, the “ Power of Attorney ”);

 

  (d) a copy of the Officer’s Certificate pursuant to the Indenture; and

 

  (e) such other documents as we have deemed necessary to enable us to give this opinion.

We have relied, as to matters of fact, on certificates of the responsible officers of the Bank and public officials. We have assumed that:

 

  (i) the Notes are valid, binding and enforceable under the laws of New York (by which they are expressed to be governed), except that no such assumption is made as to the provisions in the the Notes that are stated to be expressly governed by German law, or the authorization, execution and delivery of the Notes by the Bank; and


 

2

 

 

  (ii) all signatures on all documents submitted to us are genuine and that copies of all documents submitted to us are complete and conform to the originals.

Based upon the foregoing we are of the opinion that the Notes have been duly executed and delivered by the Bank under the law of Germany, and are valid, binding and enforceable agreements of the Bank, insofar as they are expressly stated to be governed by German law.

This opinion is subject to the following qualifications:

 

  (A) enforcement of the Notes may be limited by bankruptcy, insolvency, liquidation, reorganization, limitation and other laws of general application, or by governmental acts, relating to or affecting the rights of creditors;

 

  (B) courts in Germany (assuming they accept jurisdiction) do not apply provisions of foreign law to the extent such provisions are obviously irreconcilable with essential principles of German law, in particular rights under constitutional law of Germany; and

 

  (C) we do not express an opinion as to any rights and obligations the Bank may have or appears to have under the Notes against itself.

We are furnishing this opinion solely for your benefit, except that the Managers may rely upon it, and this opinion is not to be used, circulated, quoted or otherwise referred to for any other purpose without our prior written approval in each instance. We assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein.

Very truly yours,

 

/s/ Mathias Otto                    

    /s/ Matthias von Tiesenhausen

Mathias Otto

    Matthias von Tiesenhausen

Deputy General Counsel

    Senior Counsel

Germany, Central & Eastern Europe

    of Deutsche Bank AG

of Deutsche Bank AG