Deutsche Bank Aktiengesellschaft 6-K, filed Mar 3, 2021
Deutsche Bank Aktiengesellschaft (DB)
About this 6-K
Deutsche Bank Aktiengesellschaft filed this 6-K on March 3, 2021.
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 March 2021
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 ☒ Form 40-F ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate by check mark if 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. This Report on Form 6-K and the exhibits hereto are hereby incorporated by reference into Registration Statement No. 333-226421 of Deutsche Bank AG.
Exhibit 4.7(l) hereto amends and replaces Exhibit 4.7(l) of Deutsche Bank AG’s Report on Form 6-K, dated January 14, 2021, which contained formatting errors.
Exhibit 4.3(a): First Supplemental Senior Debt Funding Indenture, dated as of March 1, 2021, among Deutsche Bank AG, as Issuer, Delaware Trust Company, as Trustee, and Deutsche Bank Trust Company Americas, as Paying Agent, Authenticating Agent, Issuing Agent and Registrar.
Exhibit 4.4(a): Form of Senior Debt Funding Securities (Fixed Rate Registered Senior Debt Funding Note) of Deutsche Bank AG, designated pursuant to Officers’ Certificate dated March 1, 2021.
Exhibit 4.4(b): Form of Senior Debt Funding Securities (Floating Rate Registered Senior Debt Funding Note) of Deutsche Bank AG, designated pursuant to Officers’ Certificate dated March 1, 2021.
Exhibit 4.7(l): Eighth Supplemental Subordinated Indenture, dated as of January 14, 2021, among Deutsche Bank AG, 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 5.8: Opinion of Davis Polk & Wardwell LLP relating to the Senior Debt Funding Securities.
2
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.
Date: March 1, 2021
DEUTSCHE BANK AKTIENGESELLSCHAFT
| By: | /s/ Jonathan Blake | |
| Name: Jonathan Blake | ||
| Title: Managing Director | ||
| By: | /s/ Thomas Rueckert | |
| Name: Thomas Rueckert | ||
| Title: Vice President | ||
3
EXHIBIT 4.3(a)
FIRST SUPPLEMENTAL SENIOR DEBT FUNDING INDENTURE
AMONG
DEUTSCHE BANK AKTIENGESELLSCHAFT
Issuer
AND
DELAWARE TRUST COMPANY
Trustee
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
Paying Agent, Authenticating Agent, Issuing Agent and Registrar
DATED AS OF MARCH 1, 2021
SUPPLEMENTAL TO SENIOR DEBT FUNDING INDENTURE
DATED AS OF JULY 30, 2018
THIS FIRST SUPPLEMENTAL SENIOR DEBT FUNDING INDENTURE, dated as of March 1, 2021, among DEUTSCHE BANK AKTIENGESELLSCHAFT (the “Issuer”), DELAWARE TRUST COMPANY, as trustee (the “Trustee”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Paying Agent, Authenticating Agent, Issuing Agent and Registrar.
W I T N E S S E T H :
WHEREAS, the Issuer and the Trustee are parties to that certain Senior Debt Funding Indenture, dated as of July 30, 2018, among the Issuer, the Trustee and Deutsche Bank Trust Company Americas (the “Indenture”);
WHEREAS, Section 9.01(c) of the Indenture provides that, without the consent of the Holders of any Securities, the Issuer and the Trustee may enter into indentures supplemental to the Indenture for the purpose of, among other things, making any provisions as the Issuer may deem necessary or desirable; provided that no such action shall adversely affect the interests of the Holders of the Securities or Coupons;
WHEREAS, there are no Securities Outstanding of any series created prior to the execution of this First Supplemental Senior Debt Funding Indenture which are entitled to the benefit of the provisions set forth herein or would be adversely affected by such provisions;
WHEREAS, the Issuer desires and the Trustee has agreed to amend Sections 2.03, 2.06, 6.01, 7.06, 10.01, 12.09, and 13.01 of the Indenture with respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Debt Funding Indenture;
WHEREAS, the entry into this First Supplemental Senior Debt Funding Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture; and
WHEREAS, all things necessary to make this First Supplemental Senior Debt Funding Indenture a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises, 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 Securities, as follows:
2
Article
1
Amendments to the Indenture
Section 1.01. Amendment to Section 2.03 of the Indenture. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Debt Funding Indenture, Section 2.03 of the Indenture is hereby amended by:
(a) deleting the following text:
“The Securities may be issued in one or more series and are intended to qualify as eligible liabilities instruments for the minimum requirement for own funds and eligible liabilities as applicable to the Issuer.
The obligations under the Securities constitute unsecured and unsubordinated obligations of the Issuer ranking pari passu among themselves and with all other unsecured and unsubordinated obligations of the Issuer, subject, however, to statutory priorities conferred on certain unsecured and unsubordinated obligations in the event of any Resolution Measures imposed on the Issuer or in the event of the dissolution, liquidation, insolvency or composition of the Issuer, or if other proceedings are opened for the avoidance of the insolvency of, or against, the Issuer; and pursuant to Section 46f(5) of the German Banking Act (Kreditwesengesetz), the obligations under the Securities rank in priority to the Issuer’s obligations under any of its debt instruments (Schuldtitel) within the meaning of Section 46f(6) sentence 1 of the German Banking Act (including the obligations under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act) or any successor provision.”
and replacing the deleted text with the following:
“The Securities may be issued in one or more series and are intended to qualify as eligible liabilities instruments within the meaning of Articles 72a, 72b(2) of Regulation (EU) No 575/2013 of the European Parliament and of the Council, as amended, supplemented or replaced from time to time (the “CRR”), with the exception of point (d), for the minimum requirement for own funds and eligible liabilities as applicable to the Issuer.
Status. The obligations under the Securities constitute unsecured and unsubordinated obligations of the Issuer and shall rank pari passu among themselves and with all other unsecured and unsubordinated obligations of the Issuer, subject, however, to statutory priorities conferred on certain unsecured and unsubordinated obligations in the event of any Resolution
3
Measures imposed on the Issuer or in the event of the dissolution, liquidation, insolvency or composition of the Issuer, or if other proceedings are opened for the avoidance of the insolvency of, or against, the Issuer; in accordance with Section 46f(5) of the German Banking Act (Kreditwesengesetz), the obligations of the Issuer under the Securities shall rank in priority to the Issuer’s obligations under debt instruments (Schuldtitel) of the Issuer within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including the obligations under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act (Kreditwesengesetz)) or any successor provision, this includes eligible liabilities within the meaning of Articles 72a and 72b(2) CRR.”;
(b) deleting Section 2.03(b) of the Indenture, which reads as follows, in its entirety:
“the qualification of the Securities of the series as eligible liabilities for bank regulatory purposes;”
and replacing the deleted text with the following:
“[intentionally omitted];”; and
(c) adding the following paragraph after the current third paragraph and before the current fourth paragraph:
“No subsequent agreement may enhance the seniority of the Issuer’s obligations under the Securities or shorten the term of any of the Securities or any applicable notice period. No Holder may set off its claims arising under the Securities against any claims of the Issuer. No security or guarantee shall be provided at any time securing claims of the Holders under the Securities; any security or guarantee already provided or granted in the future in connection with other liabilities of the Issuer may not be used for claims under the Securities.”
Section 1.02. Amendment to Section 2.06 of the Indenture. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Debt Funding Indenture, the first sentence in Section 2.06 of the Indenture, which read as follows, shall be deleted:
“Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose.”
4
and shall be replaced with the following:
“Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, executed by the Trustee by the manual or electronic signature (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) of one of its authorized officers, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose.”
Section 1.03. Amendment to Section 6.01 of the Indenture. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Debt Funding Indenture, Section 6.01 of the Indenture is hereby amended by:
(a) deleting Section 6.01(a)(ii) of the Indenture, which reads as follows, in its entirety:
“convert the Securities into ordinary shares of (i) the Issuer or (ii) any group entity or (iii) any bridge bank or other instruments of ownership of such entities qualifying as common equity tier one capital (and issue to or confer on the Holders (including the Beneficial Owners) such ordinary shares or instruments); and/or”
and replacing the deleted text with the following:
“convert the Securities into ordinary shares of (A) the Issuer or (B) any group entity or (C) any bridge bank or other instruments of ownership of such entities qualifying as common equity tier one capital (and the issue to or conferral on the Holders (including the Beneficial Owners) of such ordinary shares or instruments); and/or”; and
(b) deleting the following language in Section 6.01 of the Indenture, which reads as follows, in its entirety:
“The Issuer’s obligations to indemnify the Trustee and the Agents in accordance with Sections 7.02 and 7.06, and to the extent applicable, the obligations of the Holders to indemnify the Trustee and the Agents under this Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Securities.”
and replacing the deleted text with the following:
“Any obligations of the Holders to indemnify the Trustee and the Agents under this Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or the
5
Securities. To the extent not otherwise precluded by a Resolution Measure, the Issuer’s obligations to indemnify the Trustee and the Agents in accordance with Sections 7.02 and 7.06 shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or the Securities.”
Section 1.04. Amendment to Section 7.06 of the Indenture. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Debt Funding Indenture, Section 7.06 of the Indenture is hereby amended by deleting the following language in Section 7.06, which read as follows, in its entirety:
“Such additional indebtedness shall be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee or Agent as such, except funds held in trust for the benefit of the Holders of particular Securities or Coupons, and the Securities are hereby subordinated to such senior claim. The Issuer’s payment obligations pursuant to this Section and any lien arising hereunder shall survive the discharge of this Indenture and the resignation or removal of the Trustee or Agent. When the Trustee or Agent incurs expenses after the occurrence of an Event of Default with respect to the Issuer, the expenses are intended to constitute expenses of administration under any bankruptcy or insolvency law.”
and replacing the deleted text with the following:
“Consistent with Section 5.03, the Trustee shall have a right prior to the Holders to any funds held or collected by the Trustee or Agent, except funds held in trust for the benefit of the Holders of particular Securities or Coupons. The Issuer’s payment obligations pursuant to this Section and any right to payment arising hereunder shall survive the discharge of this Indenture and the resignation or removal of the Trustee or Agent.”
Section 1.05. Amendment to Section 10.01 of the Indenture. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Debt Funding Indenture, the first paragraph of Section 10.01 of the Indenture, which reads as follows, shall be deleted in its entirety:
“In case of any merger or consolidation or sale, lease or conveyance of all or substantially all of the Issuer’s assets to any other Person, the successor legal entity or the Person which acquires by sale, lease or conveyance substantially all the assets of the Issuer (if other than the Issuer) may succeed to and be substituted for the Issuer, with the same effect as if it had been named herein; provided that no such succession or substitution shall occur unless (i) it is effected in a manner as prescribed by applicable
6
laws and regulations and the competent supervisory or resolution authority has raised no objection to such succession or substitution, and (ii) the Trustee has received an Officer’s Certificate and Opinion of Counsel each stating that the conditions set forth in clause (i) have been satisfied. Such successor corporation may, subject to all the terms, conditions and limitations provided in this Indenture, cause to be signed, and may issue either in its own name or in the name of the Issuer prior to such succession any or all holders of the Securities issuable hereunder which together with any Coupons appertaining thereto theretofore shall not have been signed by the Issuer and delivered to the Trustee; upon an Issuer Order of such successor corporation, instead of the Issuer, the Trustee shall authenticate and shall deliver any Securities together with any Coupons appertaining thereto which previously shall have been signed and delivered by the officers of the Issuer to the Trustee for authentication, and any Securities which such successor corporation thereafter shall cause to be signed and delivered to the Trustee for that purpose. All of the Securities so issued together with any Coupons appertaining thereto shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof.”
and shall be replaced with the following:
“In case of any merger or consolidation or sale, lease or conveyance of all or substantially all of the Issuer’s assets to any other Person, the successor legal entity or the Person which acquires by sale, lease or conveyance substantially all the assets of the Issuer (if other than the Issuer) may succeed to and be substituted for the Issuer, with the same effect as if it had been named herein; provided that no such succession or substitution shall occur unless (i) it is effected in a manner as prescribed by applicable laws and regulations and the competent supervisory or resolution authority has raised no objection to or has approved of, as the case may be, such succession or substitution, and (ii) the Trustee has received an Officer’s Certificate and Opinion of Counsel each stating that the conditions set forth in clause (i) have been satisfied. Such successor corporation may, subject to all the terms, conditions and limitations provided in this Indenture, cause to be signed, and may issue either in its own name or in the name of the Issuer prior to such succession any or all holders of the Securities issuable hereunder which together with any Coupons appertaining thereto theretofore shall not have been signed by the Issuer and delivered to the Trustee; upon an Issuer Order of such successor corporation, instead of the Issuer, the Trustee shall authenticate and shall deliver any Securities together with any Coupons appertaining thereto
7
which previously shall have been signed and delivered by the officers of the Issuer to the Trustee for authentication, and any Securities which such successor corporation thereafter shall cause to be signed and delivered to the Trustee for that purpose. All of the Securities so issued together with any Coupons appertaining thereto shall in all respects have the same legal rank, be subject to the imposition of Resolution Measures, and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof.”
Section 1.06. Amendment to Section 12.09 of the Indenture. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Debt Funding Indenture, Section 12.09 of the Indenture is hereby amended by adding the following paragraph after the first sentence:
“Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective as delivery of a manually executed counterpart of this Indenture. Each of the parties to this Indenture represents that it has undertaken commercially reasonable steps to verify the identity of each individual person executing any such counterparts via electronic signature on behalf of such party and has and will maintain sufficient records of the same. This Indenture shall become effective when each party shall have received a counterpart hereof signed by all of the other parties to this Indenture.”
Section 1.07. Amendment to Section 13.01 of the Indenture. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Debt Funding Indenture, Section 13.01 of the Indenture, which reads as follows, shall be deleted in its entirety:
“The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity. Any redemption of Securities of any series prior to their stated maturity shall be subject to (i) receipt by the Issuer of prior written approval of the competent authority, if then required under applicable law, capital adequacy guidelines, regulations or policies of such competent authority; and (ii) compliance with any other regulatory requirements. If the Securities are redeemed without prior written approval of such competent authority, then the amounts paid on the Securities must be returned to the Issuer irrespective of any agreement to the contrary.”
8
and shall be replaced with the following:
“The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity. Any redemption of Securities of any series prior to their stated maturity shall be subject to (i) receipt by the Issuer of prior written approval of the competent authority; and (ii) compliance with any other regulatory requirements. If the Securities are redeemed without prior written approval of such competent authority, then the amounts paid on the Securities must be returned to the Issuer irrespective of any agreement to the contrary.”
Article
2
Miscellaneous Provisions
Section 2.01. Further Assurances. The Issuer will, upon request by the Trustee, execute and deliver such further instruments and do such further acts as may reasonably be necessary or proper to carry out more effectively the purposes of this First Supplemental Senior Debt Funding Indenture.
Section 2.02. Other Terms of Indenture. Except insofar as herein otherwise expressly provided, all provisions, terms and conditions of the Indenture are in all respects ratified and confirmed and shall remain in full force and effect.
Section 2.03. Terms Defined. All terms defined elsewhere in the Indenture shall have the same meanings when used herein.
Section 2.04. Governing Law. This First Supplemental Senior Debt Funding 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 as may otherwise be required by mandatory provisions of law.
Section 2.05. Counterparts. This First Supplemental Senior Debt Funding 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. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective as delivery of a manually executed counterpart of this First Supplemental Senior Debt Funding Indenture. Each of the parties to this First Supplemental Senior Debt Funding Indenture represents that it has undertaken commercially reasonable steps to verify the identity of each individual person executing any such counterparts via electronic signature on
9
behalf of such party and has and will maintain sufficient records of the same. This First Supplemental Senior Debt Funding Indenture shall become effective when each party shall have received a counterpart hereof signed by all of the other parties to this First Supplemental Senior Debt Funding Indenture.
Section 2.06. Responsibility of the Trustee. The recitals contained herein shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Senior Debt Funding Indenture or the Securities.
[SIGNATURE PAGE FOLLOWS]
10
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Senior Debt Funding Indenture to be duly executed, all as of the date first written above.
| DEUTSCHE BANK AKTIENGESELLSCHAFT | ||||||
| By: | /s/ Jonathan Blake | |||||
| Name: | Jonathan Blake | |||||
| Title: | Managing Director | |||||
| By: | /s/ Thomas Rueckert | |||||
| Name: | Thomas Rueckert | |||||
| Title: | Vice President | |||||
| DELAWARE TRUST COMPANY, as Trustee | ||||||
| By: | /s/ Thomas Musarra | |||||
| Name: | Thomas Musarra | |||||
| Title: | Vice President | |||||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Paying Agent, Authenticating Agent, Issuing Agent and Registrar | ||||||
| By: | /s/ Chris Niesz | |||||
| Name: | Chris Niesz | |||||
| Title: | Vice President | |||||
| By: | /s/ Kathryn Fischer | |||||
| Name: | Kathryn Fischer | |||||
| Title: | Vice President | |||||
EXHIBIT 4.4(a)
DEUTSCHE BANK AG
[INSERT BRANCH OFFICE THROUGH WHICH THE NOTE IS ISSUED, IF APPLICABLE]
[FORM OF FACE OF DEBT SECURITY]
FIXED RATE REGISTERED SENIOR DEBT FUNDING NOTE REGISTERED U.S. $[AGGREGATE
| REGISTERED | U.S. $[AGGREGATE |
| PRINCIPAL AMOUNT] | |
| CERTIFICATE No. | CUSIP: |
| ISIN: |
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.
SENIOR DEBT FUNDING NOTES, SERIES E
Fixed Rate Registered Senior Debt Funding Note
| Trade Date | [ ] | |
| Original Issue Date | [ ] | |
| Maturity Date | [ ] | |
| Principal Amount | [ ] | |
| Aggregate Principal Amount | [ ] | |
| Minimum Denominations | [ ] | |
| Interest Rate | [ ] | |
| Interest Payment Date(s) | [ ] | |
| Interest Period(s) | [ ] | |
| Interest Accrual Date | [ ] | |
| Resolution Measures Provisions | This Note will be subject to the Resolution Measures provisions provided in the Indenture and on the reverse hereof | |
| Office Substitution | [Applicable] | |
| Initial Redemption Date | [ ] | |
| Redemption Dates | [ ] | |
| Redemption Notice Period | [ ] | |
| Initial Redemption Percentage | [ ] | |
| Annual Redemption Percentage Reduction | [ ] | |
| Original Yield to Maturity | [ ] | |
| Tax Redemption | [ ] | |
| Payment of Additional Tax Amounts | [ ] | |
| Other Provisions | [ ] |
Deutsche Bank Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under
2
the laws of the Federal Republic of Germany, if so specified, acting through the office specified on the front page of this Note, (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) and to pay interest thereon at the Interest Rate per annum specified above from and including the Interest Accrual Date specified above until but excluding the date the amount due with respect to the principal amount is paid or duly made available for payment (except as provided below) weekly, monthly, quarterly, semi-annually or annually in arrears on the Interest Payment Dates specified above in each year commencing on the Interest Payment Date next succeeding the Interest Accrual Date specified above, and at maturity (or on any redemption date); provided, however, that if the Interest Accrual Date occurs between a Record Date, as defined below, and the next succeeding Interest Payment Date, interest payments will commence on the second Interest Payment Date succeeding the Interest Accrual Date to the registered Holder of this Note on the Record Date with respect to such second Interest Payment 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, or, if no interest has been paid or duly provided for, from and including, the Interest Accrual Date, to, but excluding the next Interest Payment Date or the date the amount due with respect to 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 date that is one New York Banking Day immediately preceding the relevant date of payment with respect to such Interest Payment Date (each such date, a “Record Date”); provided, however, that any interest payable at maturity (or on any redemption date) will be payable to the person to whom the amount due with respect to the principal hereof shall be payable.
Payment of the amount due with respect to the principal, premium, if any, and any interest due on this Note will be made by wire transfer of immediately available funds 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, in U.S. dollars.
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 Authenticating Agent, acting on behalf of the Trustee, referred to on the reverse hereof by manual or electronic signature (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com), this Note shall not be entitled to any benefit under the Indenture (as defined on the reverse hereof) or be valid or obligatory for any purpose.
3
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
| DEUTSCHE BANK AG [INSERT BRANCH OFFICE THROUGH WHICH THE NOTE IS ISSUED, IF APPLICABLE] | ||||||
| DATED: | [ ] | By: | ||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
CERTIFICATE OF AUTHENTICATION
This Note is one of the Securities referred to in the within-mentioned Senior Debt Funding Indenture.
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Authenticating Agent
|
| By: | ||
| Authorized Officer |
4
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Debt Funding Notes, Series E of the Issuer (the “Notes”). The Notes are issuable under a Senior Debt Funding Indenture, dated as of July 30, 2018, among the Issuer, Delaware Trust Company, as trustee (the “Trustee,” which term includes any successor trustee under the Indenture), and Deutsche Bank Trust Company Americas (“DBTCA”), as paying agent, authenticating agent, issuing agent, and registrar (as supplemented by the First Supplemental Senior Debt Funding Indenture dated as of March 1, 2021, and as may be further amended or supplemented from time to time, the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made 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 (the “Paying Agent,” which term includes any additional or successor Paying Agent appointed by the Issuer) with respect to the Notes. The Issuer has appointed DBTCA as the authenticating agent (the “Authenticating Agent,” which term includes any additional or successor Authenticating Agent appointed by the Issuer) to act on behalf of the Trustee to authenticate the Notes. The terms of individual Notes may vary with respect to interest rates, interest rate formulas, issue dates, maturity dates, or otherwise, all as provided in the Indenture. To the extent not inconsistent herewith, the terms of the Indenture are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund. Unless otherwise indicated on the face hereof, this Note will not be redeemable prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole or in part at the option of the Issuer on or after the Initial Redemption Date specified on the face hereof or on the Redemption Dates specified on the face hereof on the terms set forth on the face hereof, together with interest accrued and unpaid hereon to the date of redemption. Any redemption of this Note prior to its stated maturity shall be subject to (i) receipt by the Issuer of approval of the competent authority and (ii) compliance with any other regulatory requirements. If this Note is redeemed by the Issuer without the approval of such competent authority, if then legally required, then the amounts paid on this Note must be returned to the Issuer irrespective of any agreement to the contrary.
If this Note is subject to “Annual Redemption Percentage Reduction,” the Initial Redemption Percentage indicated on the face hereof will be reduced on each anniversary of the Initial Redemption Date by the Annual Redemption Percentage Reduction specified on the face hereof until the redemption price of this Note is 100% of the principal amount hereof, together with interest accrued and unpaid hereon to the date of redemption. Notice of redemption shall be mailed to the registered Holders of the Notes designated for redemption at their addresses as the same shall appear on the Note register not less than 30 nor more than 60 calendar days prior to the date fixed for redemption or within the Redemption Notice Period specified on the face hereof, subject to all the conditions and provisions of the Indenture. In the event of redemption of this Note in part only, a new Note or Notes for the amount of the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
5
Interest payments on this Note will include interest accrued to but excluding the Interest Payment Dates or the Maturity Date (or any earlier redemption date), as the case may be. Unless indicated otherwise on the face hereof, 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 date) does not fall on a Business Day or where the Interest Payment Date or the Maturity Date (or any redemption date) is postponed according to the terms and procedures specified on the face hereof, 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.
The Notes are intended to qualify as eligible liabilities instruments within the meaning of Articles 72a, 72b(2) of Regulation (EU) No 575/2013 of the European Parliament and of the Council, as amended, supplemented or replaced from time to time (the “CRR”), with the exception of point (d), for the minimum requirement for own funds and eligible liabilities as applicable to the Issuer.
The obligations under the Notes constitute unsecured and unsubordinated obligations of the Issuer and shall rank pari passu among themselves and with all other unsecured and unsubordinated obligations of the Issuer, subject, however, to statutory priorities conferred on certain unsecured and unsubordinated obligations in the event of any Resolution Measures imposed on the Issuer or in the event of the dissolution, liquidation, insolvency or composition of the Issuer, or if other proceedings are opened for the avoidance of the insolvency of, or against, the Issuer; in accordance with Section 46f(5) of the German Banking Act (Kreditwesengesetz), the obligations of the Issuer under the Notes shall rank in priority to the Issuer’s obligations under debt instruments (Schuldtitel) of the Issuer within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including the obligations under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act (Kreditwesengesetz)) or any successor provision, this includes eligible liabilities within the meaning of Articles 72a and 72b(2) CRR.
No subsequent agreement may enhance the seniority of the Issuer’s obligations under the Notes or shorten the term of any of the Notes or any applicable notice period. No Holder may set off its claims arising under the Notes against any claims of the Issuer. No security or guarantee shall be provided at any time securing claims of the Holders under the Notes; any security or guarantee already provided or granted in the future in connection with other liabilities of the Issuer may not be used for claims under the Notes.
This Note, and any Note or Notes issued upon transfer or exchange hereof, is issuable only in fully registered form, without coupons, and unless otherwise specified above, is issuable only in denominations of U.S. $1,000 and any integral multiple of U.S. $1,000 in excess thereof.
If “Office Substitution” is applicable to the Notes as specified on the face hereof, the Issuer may at any time, without the consent of the Holders or the Trustee, designate another Office of the Issuer as substitute for the Office through which the Issuer has acted to issue the
6
Notes with the same effect as if such substitute Office had been originally named as the Office through which the Issuer had acted to issue the Notes for all purposes under the Indenture and the Notes. In order to give effect to such substitution, the Issuer shall give notice of such substitution to the Trustee and the Holders of the Notes. With effect from the substitution date, such substitute Office shall, without any amendment to this Note or entry into any supplemental indenture, assume all of the obligations of the originally-named Office as principal obligor under the Notes. “Office” means the Issuer’s head office or one of the Issuer’s branch offices.
DBTCA has been appointed Registrar for the Notes, 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, the Trustee and the Authenticating Agent and duly executed by the registered Holder hereof in person or by the Holder’s attorney duly authorized in writing, and thereupon the Trustee or the Authenticating Agent shall authenticate and deliver 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 neither the Trustee nor the Authenticating Agent will be required to (i) 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 or (ii) register the transfer of or exchange Notes to the extent and during the period so provided in the 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, the Trustee and the Authenticating Agent 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 and the Authenticating Agent, 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, the Authenticating Agent 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 the Note mutilated, defaced, destroyed, lost or stolen.
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. If an Event of Default with respect to this Note occurs and is continuing, then, unless the principal of this Note shall have already become due and
7
payable, either the Trustee or the Holder of not less than 33 1⁄3% in aggregate principal amount of all outstanding debt securities issued under the Indenture (treated as one class), by notice in writing to the Issuer (and to the Trustee if given by Holders), 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 Indenture.
Subject to Section 5.02 of the Indenture, the Indenture provides for no right of acceleration in the case of a default in the payment of principal of, or interest on, or other amounts owing under this Note or a default in the performance of any other covenant of the Issuer under this Note or the Indenture (any such default in payment or default in performance, a “default”).
If an Event of Default or a default with respect to this Note occurs and is continuing, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered (but not obligated) to pursue any available remedy by proceedings at law or in equity to collect any principal of and interest on this Note due and unpaid, or to enforce the performance of any provision of this Note or the Indenture, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon this Note and collect in the manner provided by law out of the property of the Issuer or other obligor upon this Note, wherever situated, the monies adjudged or decreed to be payable.
If the face hereof indicates that this Note is subject to “Tax Redemption,” subject to approval by the competent authority, if then required under applicable law, capital adequacy guidelines, regulations or policies of such competent authority, this Note may be redeemed, as a whole, at the option of the Issuer at any time prior to maturity, upon the giving of a Notice of redemption as described below, at a redemption price equal to 100% of the principal amount hereof, together with any accrued interest to the date fixed for redemption, if the Issuer determines that, as a result of any change in or amendment to the laws, or any regulations or rulings promulgated thereunder, of the Federal Republic of Germany, the United States, the jurisdiction of residence or incorporation of any successor corporation to the Issuer, or the jurisdiction of any issuing branch (each, a “Relevant Jurisdiction”), or of any political subdivision or taxing authority thereof or therein affecting taxation, or any change in official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment becomes effective on or after the Trade Date hereof, the Issuer has or will become obligated to pay Additional Tax Amounts, as defined below, with respect to this Note as described below. If this Note is redeemed by the Issuer without the approval of such competent authority, if then legally required, then the amounts paid on this Note must be returned to the issuer irrespective of any agreement to the contrary. Prior to the giving of any Notice of redemption pursuant to this paragraph, the Issuer shall deliver to the Trustee (i) a certificate stating that the Issuer is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Issuer to so redeem have occurred, and
(ii) an opinion of independent legal counsel satisfactory to the Trustee to such effect based on such statement of facts; provided, that no such Notice of redemption shall be given earlier than 60 calendar days prior to the earliest date on which the Issuer would be obligated to pay such Additional Tax Amounts if a payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more than 60 calendar days prior
8
to the date fixed for redemption or within the Redemption Notice Period specified on the face hereof, which date and the applicable redemption price will be specified in the Notice.
All interest amounts payable in respect of this Note shall be made without deduction or withholding for or on account of any present or future taxes, duties or governmental charges of any nature whatsoever imposed or levied by way of deduction or withholding by or on behalf of the Tax Jurisdiction (“Withholding Taxes”), unless such deduction or withholding is required by law.
“Tax Jurisdiction” means the Federal Republic of Germany or the United States, or any political subdivision or any authority thereof or therein having power to tax.
In the event of such withholding or deduction on payments of interest (but not in respect of the payment of any principal in respect of this Note) and if (but only if) the face hereof indicates that this Note is subject to “Payment of Additional Tax Amounts,” the Issuer shall, to the fullest extent permitted by law, pay such additional tax amounts (“Additional Tax Amounts”) as will be necessary in order that the net amounts received by the Holders, after such withholding or deduction for or on account of any Withholding Taxes imposed upon or as a result of such payment by the Tax Jurisdiction, will equal the respective amounts which would otherwise have been receivable in the absence of such withholding or deduction; except that no such Additional Tax Amounts shall be payable on account of any taxes, duties or governmental charges which:
| (a) | are payable by any person acting as custodian bank or collecting agent on the Holder’s or the Beneficial Owner’s behalf, or otherwise in any manner which does not constitute a deduction or withholding by the Issuer from payments of interest made by the Issuer; or |
| (b) | would not be payable to the extent such deduction or withholding could be avoided or reduced if the Holder or the Beneficial Owner (or any financial institution through which the Holder or the Beneficial Owner holds the Notes or through which payment on the Notes 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 you or the beneficial owner (or such financial institution) or concerning the Holder’s or the Beneficial Owner’s (or financial institution’s) ownership or concerning the Holder’s or the Beneficial Owner’s (or such financial institution’s) nationality, residence, identity or connection with the jurisdiction imposing such tax; or |
| (c) | are payable by reason of the Holder’s or the Beneficial Owner’s having, or having had, some personal or business connection with the Federal Republic of Germany and not merely by reason of the fact that payments in respect of the Notes are, or for purposes of taxation are deemed to be, derived from sources in, or are secured in, the Federal Republic of Germany; or |
9
| (d) | are presented for payment more than 30 days after the Relevant Date (as defined below) except to the extent that the Holder or the Beneficial Owner would have been entitled to Additional Tax Amounts on presenting the same for payment on the last day of the period of 30 days assuming that day to have been a Business Day; or |
| (e) | are deducted or withheld by a paying agent from a payment if the payment could have been made by another paying agent without such deduction or withholding; or |
| (f) | would not be payable if the Notes had been kept in safe custody with, and the payments had been collected by, a banking institution; or |
| (g) | are payable by reason of a change in law or practice that becomes effective more than 30 days after the relevant payment of interest becomes due, or is duly provided for and notice thereof is given in accordance with the Section 12.04 of the Indenture, whichever occurs later. |
No Additional Tax Amounts or any other amounts shall be payable on account of any such withholding or deduction in respect of payments of principal.
“Relevant Date” means the date on which the payment first becomes due but, if the full amount payable has not been received by the paying agent on or before the due date, it means the date on which, the full amount having been so received.
Moreover, all amounts payable in respect of this Note shall be made subject to compliance with Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986 (the “Code”), or any regulations or other official guidance promulgated thereunder, official interpretations thereof, or any applicable agreement entered into in connection therewith (including any agreement, law, regulation, or other official guidance implementing such agreement) and any applicable agreement described in Section 1471(b) of the Code. The Issuer shall have no obligation to pay Additional Tax Amounts or otherwise indemnify a Holder or Beneficial Owner in connection with any such compliance with the Code.
The terms and conditions set forth in the following paragraphs (a) – (k) shall apply to this Note, and by acquiring this Note, the Holder and each Beneficial Owner of this Note shall be bound by and shall be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority.
| (a) | Under the relevant resolution laws and regulations as applicable to the Issuer from time to time, this Note may be subject to the powers exercised by the competent resolution authority to: |
| (i) | write down, including write down to zero, the claims for payment of the principal amount, the interest amount, if any, or any other amount in respect of this Note; |
| (ii) | convert this Note into ordinary shares of (A) the Issuer or (B) any group entity or (C) any bridge bank or other instruments of ownership of such entities qualifying as common equity tier one capital (and the issue to or conferral on the Holder (including each Beneficial Owner) of such ordinary shares or instruments); and/or |
10
| (iii) | apply any other resolution measure, including, but not limited to, (A) any transfer of this Note to another entity, (B) the amendment, modification or variation of the terms and conditions of this Note or (C) the cancellation of this Note; |
(each, a “Resolution Measure”).
For the avoidance of doubt, any non-payment by the Issuer arising out of any such Resolution Measure will not constitute a failure by the Issuer under the terms of this Note or the Indenture to make a payment of principal of, interest on, or other amounts owing under this Note.
| (b) | By its acquisition of this Note, the Holder (including each Beneficial Owner) of this Note shall be deemed irrevocably to have agreed: |
| (i) | to be bound by, to acknowledge and to accept any Resolution Measure and any amendment, modification or variation of the terms and conditions of this Note to give effect to any Resolution Measure; |
| (ii) | that it will have no claim or other right against the Issuer arising out of any Resolution Measure; and |
| (iii) | that the imposition of any Resolution Measure will not constitute an Event of Default or a default (A) under this Note, (B) under the Indenture or (C) for the purpose of, but only to the fullest extent permitted by, the Trust Indenture Act (including, without limitation, Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act). |
| (c) | The terms and conditions of this Note shall continue to apply in relation to the residual principal amount of, or outstanding amount payable in respect of, this Note, subject to any modification of the amount of interest payable, if any, to reflect the reduction of the principal amount, and any further modification of the terms that the competent resolution authority may decide in accordance with applicable laws and regulations relating to the resolution of banks, banking group companies, credit institutions and/or investment firms incorporated in the Federal Republic of Germany. |
| (d) | No repayment of any then-current principal amount of this Note or payment of interest or any other amount thereon (to the extent of the portion thereof affected by the imposition of a Resolution Measure) shall become due and payable after the imposition of any Resolution Measure by the competent resolution authority, unless such repayment or payment would be permitted to be made by the Issuer under the laws and regulations of the Federal Republic of Germany then applicable to the Issuer. |
| (e) | By its acquisition of this Note, the Holder (and each Beneficial Owner) of this Note waives, to the fullest extent permitted by the Trust Indenture Act and |
11
applicable law, any and all claims against the Trustee or the Agents for, agrees not to initiate a suit against the Trustee or the Agents in respect of, and agrees that the Trustee and the Agents shall not be liable for, any action that the Trustee or the Agents take, or abstain from taking, in either case in accordance with the imposition of a Resolution Measure by the competent resolution authority with respect to this Note.
| (f) | Upon the imposition of a Resolution Measure by the competent resolution authority with respect to this Note, the Issuer shall provide a written notice directly to the Holder in accordance with Section 12.04 of the Indenture as soon as practicable regarding such imposition of a Resolution Measure by the competent resolution authority for purposes of notifying the Holder of such occurrence. The Issuer shall also deliver a copy of such notice to the Trustee and the Agents for information purposes, and the Trustee and the Agents shall be entitled to rely, and will not be liable for relying, on the competent resolution authority and the Resolution Measure identified in such notice. Any delay or failure by the Issuer to give notice shall not affect the validity or enforceability of any Resolution Measure nor the effects thereof on this Note. |
| (g) | If this Note is called or being called for redemption by the Issuer, but the competent resolution authority has imposed a Resolution Measure with respect to this Note prior to the payment of the redemption amount, the relevant redemption notice, if any, shall be automatically rescinded and shall be of no force and effect, and no payment of the redemption amount will be due and payable. |
| (h) | Upon the imposition of any Resolution Measure by the competent resolution authority, the Trustee shall not be required to take any further directions from the Holders under Section 5.09 of the Indenture, which section authorizes Holders of a majority in aggregate principal amount of the debt securities issued under the Indenture at the time Outstanding to direct certain actions relating to such debt securities, and if any such direction was previously given under Section 5.09 of the Indenture to the Trustee by the Holders, it shall automatically cease to be effective, be null and void and have no further effect. The Indenture shall impose no duties, obligations or liabilities upon the Trustee or the Agents whatsoever with respect to the imposition of any Resolution Measure by the competent resolution authority. The Trustee and the Agents shall be fully protected in acting or refraining from acting in accordance with a Resolution Measure. Notwithstanding the foregoing, if, following completion of the imposition of a Resolution Measure by the competent resolution authority, this Note remains outstanding, then the Trustee’s and each Agent’s duties under the Indenture shall remain applicable with respect to this Note following such completion to the extent that the Issuer, the Trustee and the Agents agree pursuant to a supplemental indenture, unless the Issuer, the Trustee and the Agents agree that a supplemental indenture is not necessary. |
| (i) | By the acquisition of this Note, the Holder and each Beneficial Owner of this Note shall be deemed irrevocably to have (i) consented to the imposition of any Resolution Measure as it may be imposed without any prior notice by the |
12
competent resolution authority of its decision to exercise such power with respect to this Note, (ii) authorized, directed and requested the Depositary and any direct participant in the Depositary or other intermediary through which it holds this Note to take any and all necessary action, if required, to implement the imposition of any Resolution Measure with respect to this Note as it may be imposed, without any further action or direction on the part of the Holder of this Note, the Trustee or the Agents and (iii) acknowledged and accepted that the provisions contained in Article 6 of the Indenture are exhaustive on the matters described in Article 6 of the Indenture to the exclusion of any other agreements, arrangements or understandings between it and the Issuer relating to the terms and conditions of this Note.
| (j) | If the competent resolution authority imposes a Resolution Measure with respect to less than the total outstanding principal amount of the debt securities issued under the Indenture, unless the Trustee or the Agents are otherwise instructed by the Issuer or the competent resolution authority, any cancellation, write-off or conversion into equity made in respect of such debt securities pursuant to the Resolution Measure will be made on a substantially pro rata basis among any series of debt securities issued under the Indenture. |
| (k) | Any obligations of the Holders to indemnify the Trustee and the Agents under the Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or this Note. To the extent not otherwise precluded by a Resolution Measure, the Issuer’s obligations to indemnify the Trustee and the Agents in accordance with Sections 7.02 and 7.06 of the Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or this Note. |
The 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 debt securities of all series issued under the 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 thereby, (a) extend the final maturity of any such debt security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof, or change the currency of payment thereof, or modify or amend the provisions for conversion of any currency into any other currency, or impair or affect the rights of any Holder to institute suit for the payment thereof or (b) reduce the aforesaid percentage in principal amount of debt securities the consent of the Holders of which is required for any such supplemental indenture. The Issuer and the Trustee may, without the consent of the Holder of this Note, conform the terms of this Note to the description thereof in the prospectus and prospectus supplements relating to the offering and sale of this Note.
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, if any, on this Note as herein provided in the United States, and an office or agency in the United States for the registration, transfer and exchange as aforesaid of this Note. The Issuer may designate other
13
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 such Notes that such moneys shall be repaid to the Issuer and any person claiming such moneys shall thereafter look only to the Issuer for payment thereof 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.
Subject to the imposition of a Resolution Measure, no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the amount of cash as determined in accordance with the provisions set forth on the face of this Note due with respect to the principal of, premium, if any, and interest, if any, 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, if any, on this Note, for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the 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 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 as may otherwise be required by mandatory provisions of law.
As used herein:
| (a) | the term “Beneficial Owner” shall mean the beneficial owners of this Note (and any interest therein); |
| (b) | the term “bridge bank” shall mean a newly chartered German bank that would receive some or all of the Issuer’s equity securities, assets, liabilities and material contracts, including those attributable to the Issuer’s branches and subsidiaries, in |
14
a resolution proceeding;
| (c) | the term “Business Day” means, unless otherwise provided on the face of this Note, any day other than a day that (i) is a Saturday or Sunday, (ii) is a day on which banking institutions generally in The City of New York or London, England are authorized or obligated by law, regulation or executive order to close or (iii) is a day on which transactions in U.S. dollars are not conducted in The City of New York or London, England; |
| (d) | the term “competent resolution authority” shall mean any authority with the ability to exercise a Resolution Measure; |
| (e) | the term “group entity” shall mean an entity that is included in the corporate group subject to a Resolution Measure; |
| (f) | 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; and |
| (g) | 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 Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
15
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
| TEN COM | – | as tenants in common | |
| TEN ENT | – | as tenants by the entireties | |
| JT TEN | – | as joint tenants with right of survivorship and not as tenants in common |
| UNIF GIFT MIN ACT – | Custodian | ||||
| (Minor) | (Cust) |
| Under Uniform Gifts to Minors Act | |||
| (State) |
Additional abbreviations may also be used though not in the above list.
____________________________
16
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. |
17
EXHIBIT 4.4(b)
DEUTSCHE BANK AG
[INSERT BRANCH OFFICE THROUGH WHICH THE NOTE IS ISSUED, IF APPLICABLE]
[FORM OF FACE OF DEBT SECURITY]
FLOATING RATE REGISTERED SENIOR DEBT FUNDING NOTE
| REGISTERED | U.S. $[AGGREGATE |
| PRINCIPAL AMOUNT] | |
| CERTIFICATE No. | CUSIP: |
| ISIN: |
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.
SENIOR DEBT FUNDING NOTES, SERIES E
Floating Rate Registered Senior Debt Funding Note
| Trade Date | [ ] | |
| Original Issue Date | [ ] | |
| Maturity Date | [ ] | |
| Principal Amount | [ ] | |
| Aggregate Principal Amount | [ ] | |
| Minimum Denominations | [ ] | |
| Interest Accrual Date | [ ] | |
| Base Rate | [ ] | |
| Index Maturity | [ ] | |
| Spread (plus or minus) | [ ] | |
| Spread Multiplier | [ ] | |
| Initial Interest Rate | [ ] | |
| Initial Interest Reset Date | [ ] | |
| Interest Payment Date(s) | [ ] | |
| Interest Payment Period | [ ] | |
| Interest Reset Date(s) | [ ] | |
| Resolution Measures Provisions | This Note will be subject to the Resolution Measures provisions provided in the Indenture and on the reverse hereof
| |
| Office Substitution................................................ | [Applicable] | |
| Calculation Agent ................................................ | [ ] | |
| Initial Redemption Date....................................... | [ ] | |
| Initial Redemption Percentage............................. | [ ] | |
| Index Currency..................................................... | [ ] | |
| Annual Redemption Percentage Reduction ......... | [ ] |
2
| Redemption Notice Period | [ ] | |
| Tax Redemption | [ ] | |
| Payment of Additional Tax Amounts | [ ] | |
| If yes, state Initial Offering Date | [ ] | |
| Other Provisions | [ ] |
Deutsche Bank Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany, if so specified, acting through the office specified on the front page of this Note, (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) and to pay interest thereon from the Interest Accrual Date specified above at a rate per annum equal to the Initial Interest Rate specified above until the Initial Interest Reset Date specified above, and thereafter at a rate per annum determined in accordance with the provisions specified on the reverse hereof until the principal hereof is paid or duly made available for payment.
The Issuer will pay interest in arrears weekly, monthly, quarterly, semi-annually or annually as specified above as the Interest Payment Period on each Interest Payment Date (as specified above), commencing on the first Interest Payment Date next succeeding the Interest Accrual Date specified above, and on the Maturity Date (or on any redemption date); provided, however, that if the Interest Accrual Date occurs between a Record Date, as defined below, and the next succeeding Interest Payment Date, interest payments will commence on the second Interest Payment Date succeeding the Interest Accrual Date to the registered Holder of this Note on the Record Date with respect to such second Interest Payment Date; and provided, further, that if an Interest Payment Date (other than the Maturity Date or a redemption date) would fall on a day that is not a Business Day, as defined on the reverse hereof, such Interest Payment Date shall be the following day that is a Business Day, except that if the Base Rate specified above is EONIA, LIBOR or EURIBOR and such next Business Day falls in the next calendar month, such Interest Payment Date shall be the immediately preceding day that is a Business Day; and provided, further, that if the Maturity Date or redemption date would fall on a day that is not a Business Day, such payment shall be made on the following day that is a Business Day and no interest shall accrue for the period from and after such Maturity Date or redemption date; and provided, further, that if an Interest Payment Date or the Maturity Date or redemption date would fall on a day that is not a Business Day, payment of interest, premium, if any, or principal otherwise payable on such date 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 scheduled Interest Payment Date or on the scheduled Maturity Date or redemption 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, or, if no interest has been paid or duly provided for, from and including, the Interest Accrual Date, to, but excluding the next Interest Payment Date or the date the amount due with respect to the principal hereof has been
3
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 date that is one New York Banking Day immediately preceding the relevant date of payment with respect to such Interest Payment Date (each such date, a “Record Date”); provided, however, that any interest payable at maturity (or on any redemption date) will be payable to the person to whom the amount due with respect to the principal hereof shall be payable.
Payment of the amount due with respect to the principal, premium, if any, and any interest due on this Note will be made by wire transfer of immediately available funds 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, in U.S. dollars.
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 Authenticating Agent, acting on behalf of the Trustee, referred to on the reverse hereof by manual or electronic signature (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com), this Note shall not be entitled to any benefit under the Indenture (as defined on the reverse hereof) or be valid or obligatory for any purpose.
4
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
| DEUTSCHE BANK AG [INSERT BRANCH OFFICE THROUGH WHICH THE NOTE IS ISSUED, IF APPLICABLE] | ||||||
| DATED: | [ ] | By: | ||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
CERTIFICATE OF AUTHENTICATION
This Note is one of the Securities referred to in the within-mentioned Senior Debt Funding Indenture.
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Authenticating Agent
|
| By: | ||
| Authorized Officer |
5
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Debt Funding Notes, Series E of the Issuer (the “Notes”). The Notes are issuable under a Senior Debt Funding Indenture, dated as of July 30, 2018, among the Issuer, Delaware Trust Company, as trustee (the “Trustee,” which term includes any successor trustee under the Indenture), and Deutsche Bank Trust Company Americas (“DBTCA”), as paying agent, authenticating agent, issuing agent, and registrar (as supplemented by the First Supplemental Senior Debt Funding Indenture dated as of March 1, 2021, and as may be further amended or supplemented from time to time, the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made 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 (the “Paying Agent,” which term includes any additional or successor Paying Agent appointed by the Issuer) with respect to the Notes. The Issuer has appointed DBTCA as the authenticating agent (the “Authenticating Agent,” which term includes any additional or successor Authenticating Agent appointed by the Issuer) to act on behalf of the Trustee to authenticate the Notes. The terms of individual Notes may vary with respect to interest rates, interest rate formulas, issue dates, maturity dates, or otherwise, all as provided in the Indenture. To the extent not inconsistent herewith, the terms of the Indenture are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund. Unless otherwise indicated on the face hereof, this Note will not be redeemable prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole or in part at the option of the Issuer on or after the Initial Redemption Date specified on the face hereof or on the Redemption Dates specified on the face hereof on the terms set forth on the face hereof, together with interest accrued and unpaid hereon to the date of redemption. Any redemption of this Note prior to its stated maturity shall be subject to (i) receipt by the Issuer of approval of the competent authority, and (ii) compliance with any other regulatory requirements. If this Note is redeemed by the Issuer without the approval of such competent authority, if then legally required, then the amounts paid on this Note must be returned to the Issuer irrespective of any agreement to the contrary.
If this Note is subject to “Annual Redemption Percentage Reduction,” the Initial Redemption Percentage indicated on the face hereof will be reduced on each anniversary of the Initial Redemption Date by the Annual Redemption Percentage Reduction specified on the face hereof until the redemption price of this Note is 100% of the principal amount hereof, together with interest accrued and unpaid hereon to the date of redemption. Notice of redemption shall be mailed to the registered Holders of the Notes designated for redemption at their addresses as the same shall appear on the Note register not less than 30 nor more than 60 calendar days prior to the date fixed for redemption or within the Redemption Notice Period specified on the face hereof, subject to all the conditions and provisions of the Indenture. In the event of redemption of this Note in part only, a new Note or Notes for the amount of the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
6
This Note will bear interest at the rate determined in accordance with the applicable provisions below by reference to the Base Rate shown on the face hereof based on the Index Maturity, if any, shown on the face hereof (i) plus or minus the Spread, if any, and/or (ii) multiplied by the Spread Multiplier, if any, specified on the face hereof. Commencing with the Initial Interest Reset Date specified on the face hereof, the rate at which interest on this Note is payable shall be reset as of each Interest Reset Date specified on the face hereof (as used herein, the term “Interest Reset Date” shall include the Initial Interest Reset Date). The determination of the rate of interest at which this Note will be reset on any Interest Reset Date shall be made on the Interest Determination Date (as defined below) pertaining to such Interest Reset Dates; provided, however, that the interest rate in effect for the period from the Interest Accrual Date to the Initial Interest Reset Date will be the Initial Interest Rate. If any Interest Reset Date would otherwise be a day that is not a Business Day, such Interest Reset Date shall be postponed to the next succeeding day that is a Business Day, except that if the Base Rate specified on the face hereof is EONIA, EURIBOR or LIBOR and such Business Day is in the next succeeding calendar month, such Interest Reset Date shall be the immediately preceding Business Day.
As used herein:
| (a) | “Business Day” means, unless otherwise provided on the face of this Note, any day other than a day that is (i) a Saturday or Sunday, (ii) a day on which banking institutions generally in The City of New York or London, England are authorized or obligated by law, regulation or executive order to close or (iii) a day on which transactions in U.S. dollars are not conducted in The City of New York or London, England; and, in addition, for LIBOR Notes only, a London Banking Day; |
| (b) | “Euro-zone” means the region comprising member states of the European Union that have adopted the single currency in accordance with the relevant treaty of the European Union, as amended; |
| (c) | “Index Currency” means the currency specified on the face hereof as the currency for which LIBOR shall be calculated, or, if no such currency is specified on the face hereof, the Index Currency shall be U.S. dollars; |
| (d) | “London Banking Day” means any day on which dealings in deposits in the Index Currency are transacted in the London interbank market; |
| (e) | “Reuters page” means the display on Reuters 3000 Xtra, or any successor service, on the page or pages specified on the face hereof, or any replacement page or pages on that service; |
| (f) | “TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer System; and |
| (g) | “TARGET Settlement Day” means any day on which TARGET2 is operating. |
The Interest Determination Date pertaining to an Interest Reset Date for Notes bearing interest calculated by reference to EONIA or EURIBOR shall be the second TARGET
7
Settlement Day prior to such Interest Reset Date. The Interest Determination Date pertaining to an Interest Reset Date for Notes bearing interest calculated by reference to LIBOR shall be the second London Banking Day prior to such Interest Reset Date, except that the Interest Determination Date pertaining to an Interest Reset Date for a LIBOR Note for which the Index Currency is British pounds sterling will be such Interest Reset Date. The Interest Determination Date pertaining to an Interest Reset Date for Notes bearing interest calculated by reference to two or more Base Rates will be the latest Business Day that is at least two Business Days before the Interest Reset Date for the applicable Note on which each Base Rate is determinable.
Unless otherwise specified on the face hereof, the “Calculation Date” pertaining to an Interest Determination Date will be the earlier of (i) the tenth calendar day after such Interest Determination Date or, if such day is not a Business Day, the next succeeding Business Day, or
(ii) the Business Day immediately preceding the applicable Interest Payment Date or Maturity Date (or, with respect to any principal amount to be redeemed, any redemption date), as the case may be.
Determination of EONIA. If the Base Rate specified on the face hereof is “EONIA,” for any Interest Determination Date, EONIA with respect to this Note shall be the effective overnight reference rate for euro, computed by the European Central Bank as a weighted average of all overnight unsecured lending transactions in the interbank market, undertaken in the European Union and European Free Trade Association (EFTA) countries, having an Index Maturity of one TARGET Settlement Day, commencing on the applicable Interest Reset Date, as such rate appears on Reuters page EONIA (or any other page as may replace Reuters page EONIA) (“Reuters Page EONIA”) as of 7:00 p.m., Central European Time, on such Interest Determination Date.
The following procedures shall be followed if EONIA cannot be determined as described above:
| (a) | If the Calculation Agent determines that EONIA has been permanently discontinued, the Calculation Agent will, in its sole discretion, select an alternative reference rate as a substitute interest rate for the Notes; provided that if the Calculation Agent determines that there is an industry accepted successor interest rate for EONIA, the Calculation Agent shall use such successor interest rate as the substitute interest rate for the Notes. As part of any such substitution, the Calculation Agent may make adjustments to the terms of the Notes, including, but not limited to, the definition of the Base Rate (including the related fallback mechanism), the applicable Index Currency and/or Index Maturity for such alternative reference rate, the Spread or Spread Multiplier, as well as the business day convention, the definition of Business Day, Interest Determination Dates and related provisions and definitions, in each case consistent with accepted market practice for the use of such alternative reference rate for debt obligations such as the Notes. |
8
| (b) | If the Calculation Agent has not selected an alternative reference rate as a substitute interest rate for the Notes as provided above, the following will apply: |
| (i) | If the above rate does not appear on Reuters Page EONIA or is not so published by 7:00 p.m., Central European Time, on the applicable Interest Determination Date, EONIA for such Interest Determination Date will be the rate calculated by the Calculation Agent as the arithmetic mean of at least two quotations obtained by the Calculation Agent after requesting the principal Euro-zone offices of four major banks in the Euro-zone interbank market, which may include the Issuer, as selected by the Calculation Agent, to provide the Calculation Agent with its offered quotation for interbank term deposits in euro for a period of one TARGET Settlement Day, commencing on the applicable Interest Reset Date, to prime banks in the Euro-zone interbank market at approximately 7:00 p.m., Central European Time, on the applicable Interest Determination Date and in a principal amount not less than the equivalent of U.S.$1,000,000 in euro that is representative for a single transaction in euro in such market at such time. |
| (ii) | If fewer than two quotations are so provided, EONIA for such Interest Determination Date shall be calculated by the Calculation Agent and shall be the arithmetic mean of the rates quoted at approximately 7:00 p.m., Central European Time, on such Interest Determination Date by four major banks in the Euro-zone interbank market, as selected by the Calculation Agent, for loans in euro to leading European banks for a period of one TARGET Settlement Day, commencing on the applicable Interest Reset Date in a principal amount not less than the equivalent of U.S.$1,000,000 in euro that is representative for a single transaction in euro in such market at such time. |
| (iii) | If the banks so selected by the Calculation Agent are not providing quotations as set forth above, then the Calculation Agent, after consulting such sources as it deems comparable to any of the foregoing quotations or display page, or any such source as it deems reasonable from which to estimate EONIA, will determine EONIA for that Interest Determination Date in its sole discretion. |
9
Determination of EURIBOR. If the Base Rate specified on the face hereof is “EURIBOR,” for any Interest Determination Date, EURIBOR with respect to this Note shall be the rate for interbank term deposits in euro, as sponsored, calculated and published jointly by the European Banking Federation and ACI — The Financial Market Association, or any company established by the joint sponsors for purposes of compiling and publishing such rate, for the Index Maturity specified on the face hereof, commencing on the applicable Interest Reset Date, as such rate appears on Reuters page EURIBOR01 (or any other page as may replace Reuters page EURIBOR01) (“Reuters Page EURIBOR01”) as of 11:00 a.m., Central European Time, on such Interest Determination Date.
The following procedures shall be followed if EURIBOR cannot be determined as described above:
| (a) | If the Calculation Agent determines that EURIBOR with the Index Maturity specified on the face hereof has been permanently discontinued, the Calculation Agent will, in its sole discretion, select an alternative reference rate as a substitute interest rate for the Notes; provided that if the Calculation Agent determines that there is an industry accepted successor interest rate for the discontinued EURIBOR, the Calculation Agent shall use such successor interest rate as the substitute interest rate for the Notes. As part of any such substitution, the Calculation Agent may make adjustments to the terms of the Notes, including, but not limited to, the definition of the Base Rate (including the related fallback mechanism), the applicable Index Currency and/or Index Maturity for such alternative reference rate, the Spread or Spread Multiplier, as well as the business day convention, the definition of Business Day, Interest Determination Dates and related provisions and definitions, in each case consistent with accepted market practice for the use of such alternative reference rate for debt obligations such as the Notes. |
| (b) | If the Calculation Agent has not selected an alternative reference rate as a substitute interest rate for the Notes as provided above, the following will apply: |
| (i) | If the above rate does not appear on Reuters Page EURIBOR01 or is not so published by 11:00 a.m., Central European Time, on the applicable Interest Determination Date, EURIBOR for such Interest Determination Date will be the rate calculated by the Calculation Agent as the arithmetic mean of at least two quotations obtained by the Calculation Agent after requesting the principal Euro-zone offices of four major banks in the Euro-zone interbank market, which may include the Issuer, as selected by the Calculation Agent, to provide the Calculation Agent with its offered quotation for interbank term deposits in euro for a period of time equivalent to the Index Maturity specified on the face hereof, commencing on the applicable Interest Reset Date, to prime banks in the Euro-zone interbank market at approximately 11:00 A.M., Central European Time, on the applicable Interest Determination Date and in a principal amount not less than the equivalent of U.S.$1,000,000 in euro that is representative for a single transaction in euro in such market at such time. |
10
| (ii) | If fewer than two quotations are so provided, EURIBOR for such Interest Determination Date shall be calculated by the Calculation Agent and shall be the arithmetic mean of the rates quoted at approximately 11:00 a.m., Central European Time, on such Interest Determination Date by four major banks in the Euro-zone interbank market, as selected by the Calculation Agent, for loans in euro to leading European banks for a period of time equivalent to the Index Maturity specified on the face hereof commencing on the applicable Interest Reset Date in a principal amount not less than the equivalent of U.S.$1,000,000 in euro that is representative for a single transaction in euro in such market at such time. |
| (iii) | If the banks so selected by the Calculation Agent are not providing quotations as set forth above, then the Calculation Agent, after consulting such sources as it deems comparable to any of the foregoing quotations or display page, or any such source as it deems reasonable from which to estimate EURIBOR with the relevant Index Maturity, will determine EURIBOR for that Interest Determination Date in its sole discretion. |
Determination of LIBOR. If the Base Rate specified on the face hereof is “LIBOR,” LIBOR with respect to this Note shall be based on the London Interbank Offered Rate. The Calculation Agent shall determine LIBOR for each Interest Determination Date as follows:
As of the Interest Determination Date, LIBOR shall be the arithmetic mean of the offered rates appearing on Reuters page LIBOR01 (or any other page as may replace Reuters page LIBOR01) (“Reuters Page LIBOR01”) as of 11:00 a.m., London time, on such Interest Determination Date, for deposits in the Index Currency having the Index Maturity designated on the face hereof, commencing on the applicable Interest Reset Date, if at least two offered rates appear on Reuters Page LIBOR01; provided that, if Reuters Page LIBOR01 by its terms provides only for a single rate, that single rate shall be used.
The following procedures shall be followed if LIBOR cannot be determined as described above:
| (a) | If the Calculation Agent determines that LIBOR with the Index Currency and Index Maturity specified on the face hereof has been permanently discontinued, the Calculation Agent will, in its sole discretion, select an alternative reference rate as a substitute interest rate for the Notes; provided that, if the Calculation Agent determines that there is an industry accepted successor interest rate for the discontinued LIBOR, the Calculation Agent shall use such successor interest rate as the substitute interest rate for the Notes. As part of any such substitution, the Calculation Agent may make adjustments to the terms of the Notes, including, but not limited to, the definition of the Base Rate (including the related fallback mechanism), the applicable Index Currency and/or Index Maturity for such alternative reference rate, the Spread or Spread Multiplier, as well as the business day convention, the definition of Business Day, Interest Determination Dates and related provisions and definitions, in each case consistent with accepted market |
11
practice for the use of such alternative reference rate for debt obligations such as the Notes.
| (b) | If the Calculation Agent has not selected an alternative reference rate as a substitute interest rate for the Notes as provided above, the following will apply: |
| (i) | If (I) fewer than two offered rates appear and Reuters Page LIBOR01 does not by its terms provide only for a single rate or (II) no rate appears and Reuters Page LIBOR01 by its terms provides only for a single rate, then the Calculation Agent shall request the principal London offices of each of four major reference banks (which may include the Issuer or its affiliates) in the London interbank market, as selected by the Calculation Agent, to provide the Calculation Agent with its offered quotation for deposits in the Index Currency for the period of the Index Maturity specified on the face hereof, commencing on the applicable Interest Reset Date immediately following the Interest Determination Date, to prime banks in the London interbank market at approximately 11:00 a.m., London time, on such Interest Determination Date and in a principal amount that is representative for a single transaction in the Index Currency in such market at such time. If at least two such quotations are so provided, LIBOR on such Interest Determination Date shall be the arithmetic mean of such quotations. |
| (ii) | If fewer than two such quotations are so provided by the major reference banks, LIBOR on such Interest Determination Date shall the arithmetic mean of the rates quoted at approximately 11:00 a.m., in the applicable principal financial center for the country of the Index Currency on that Interest Determination Date, by three major banks (which may include the Issuer or its affiliates) in such principal financial center selected by the Calculation Agent for loans in the Index Currency to leading European banks, having the Index Maturity specified on the face hereof and in a principal amount that is representative for a single transaction in the Index Currency in such market at such time. |
| (iii) | If the banks so selected by the Calculation Agent are not providing quotations as set forth above, then the Calculation Agent, after consulting such sources as it deems comparable to any of the foregoing quotations or display page, or any such source as it deems reasonable from which to estimate LIBOR with the Index Currency and Index Maturity specified on the face hereof, will determine LIBOR for that Interest Determination Date in its sole discretion. |
The Calculation Agent shall calculate the interest rate hereon in accordance with the foregoing on or before each Calculation Date. The interest rate on this Note will in no event be less than 0% per annum or higher than the maximum rate permitted by New York law, as such maximum rate may be modified by United States Federal law of general application.
At the request of the Holder hereof, the Calculation Agent will provide to the Holder hereof the interest rate hereon then in effect and, if determined, the interest rate that will become
12
effective as of the next Interest Reset Date.
Unless otherwise indicated on the face hereof, interest payments on this Note shall be the amount of interest accrued from, and including, the Interest Accrual Date or from, and including the last date to which interest has been paid or duly provided for to, but excluding, the Interest Payment Dates or the Maturity Date (or any earlier redemption date), as the case may be. Accrued interest hereon shall be an amount calculated by multiplying the Principal Amount hereof by an accrued interest factor. Such accrued interest factor shall be computed by adding the interest factor calculated for each day in the period for which interest is being paid. The interest factor for each such date shall be computed by dividing the interest rate applicable to such day (i) by 360 if the Base Rate is EONIA, EURIBOR or LIBOR (if the Index Currency is not British pounds sterling), (ii) by 365 if the Base Rate is LIBOR and the Index Currency is British pounds sterling or (iii) as otherwise specified on the face hereof. All percentages resulting from any calculation of the rate of interest on this Note will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point (with 0.000005% being rounded up to 0.00001%) and all dollar amounts used in or resulting from such calculation on this Note will be rounded to the nearest cent, with one-half cent rounded upward. The interest rate in effect on any Interest Reset Date will be the applicable rate as reset on such date. The interest rate applicable to any other day is the interest rate from the immediately preceding Interest Reset Date (or, if none, the Initial Interest Rate).
The Notes are intended to qualify as eligible liabilities instruments within the meaning of Articles 72a, 72b(2) of Regulation (EU) No 575/2013 of the European Parliament and of the Council, as amended, supplemented or replaced from time to time (the “CRR”), with the exception of point (d), for the minimum requirement for own funds and eligible liabilities as applicable to the Issuer.
The obligations under the Notes constitute unsecured and unsubordinated obligations of the Issuer and shall rank pari passu among themselves and with all other unsecured and unsubordinated obligations of the Issuer, subject, however, to statutory priorities conferred on certain unsecured and unsubordinated obligations in the event of any Resolution Measures imposed on the Issuer or in the event of the dissolution, liquidation, insolvency or composition of the Issuer, or if other proceedings are opened for the avoidance of the insolvency of, or against, the Issuer; in accordance with Section 46f(5) of the German Banking Act (Kreditwesengesetz), the obligations of the Issuer under the Notes shall rank in priority to the Issuer’s obligations under debt instruments (Schuldtitel) of the Issuer within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including the obligations under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act (Kreditwesengesetz)) or any successor provision, this includes eligible liabilities within the meaning of Articles 72a and 72b(2) CRR.
No subsequent agreement may enhance the seniority of the Issuer’s obligations under the Notes or shorten the term of any of the Notes or any applicable notice period. No Holder may set off its claims arising under the Notes against any claims of the Issuer. No security or guarantee shall be provided at any time securing claims of the Holders under the Notes; any security or guarantee already provided or granted in the future in connection with other liabilities of the Issuer may not be used for claims under the Notes.
13
This Note, and any Note or Notes issued upon transfer or exchange hereof, is issuable only in fully registered form, without coupons, and unless otherwise specified above, is issuable only in denominations of U.S. $1,000 and any integral multiple of U.S. $1,000 in excess thereof.
If “Office Substitution” is applicable to the Notes as specified on the face hereof, the Issuer may at any time, without the consent of the Holders or the Trustee, designate another Office of the Issuer as substitute for the Office through which the Issuer has acted to issue the Notes with the same effect as if such substitute Office had been originally named as the Office through which the Issuer had acted to issue the Notes for all purposes under the Indenture and the Notes. In order to give effect to such substitution, the Issuer shall give notice of such substitution to the Trustee and the Holders of the Notes. With effect from the substitution date, such substitute Office shall, without any amendment to this Note or entry into any supplemental indenture, assume all of the obligations of the originally-named Office as principal obligor under the Notes. “Office” means the Issuer’s head office or one of the Issuer’s branch offices.
DBTCA has been appointed Registrar for the Notes, 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, the Trustee and the Authenticating Agent and duly executed by the registered Holder hereof in person or by the Holder’s attorney duly authorized in writing, and thereupon the Trustee or the Authenticating Agent shall authenticate and deliver 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 neither the Trustee nor the Authenticating Agent will be required to (i) 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 or (ii) register the transfer of or exchange Notes to the extent and during the period so provided in the 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, the Trustee and the Authenticating Agent 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 and the Authenticating Agent, 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, the Authenticating Agent 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,
14
authentication and delivery of a new Note shall be borne by the owner of the Note mutilated, defaced, destroyed, lost or stolen.
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. If an Event of Default with respect to this Note occurs and is continuing, then, unless the principal of this Note shall have already become due and payable, either the Trustee or the Holder of not less than 33 1⁄3% in aggregate principal amount of all outstanding debt securities issued under the Indenture (treated as one class), by notice in writing to the Issuer (and to the Trustee if given by Holders), 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 Indenture.
Subject to Section 5.02 of the Indenture, the Indenture provides for no right of acceleration in the case of a default in the payment of principal of, or interest on, or other amounts owing under this Note or a default in the performance of any other covenant of the Issuer under this Note or the Indenture (any such default in payment or default in performance, a “default”).
If an Event of Default or a default with respect to this Note occurs and is continuing, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered (but not obligated) to pursue any available remedy by proceedings at law or in equity to collect any principal of and interest on this Note due and unpaid, or to enforce the performance of any provision of this Note or the Indenture, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon this Note and collect in the manner provided by law out of the property of the Issuer or other obligor upon this Note, wherever situated, the monies adjudged or decreed to be payable.
If the face hereof indicates that this Note is subject to “Tax Redemption,” subject to approval by the competent authority, if then required under applicable law, capital adequacy guidelines, regulations or policies of such competent authority, this Note may be redeemed, as a whole, at the option of the Issuer at any time prior to maturity, upon the giving of a Notice of redemption as described below, at a redemption price equal to 100% of the principal amount hereof, together with any accrued interest to the date fixed for redemption, if the Issuer determines that, as a result of any change in or amendment to the laws, or any regulations or rulings promulgated thereunder, of the Federal Republic of Germany, the United States, the jurisdiction of residence or incorporation of any successor corporation to the Issuer, or the jurisdiction of any issuing branch (each, a “Relevant Jurisdiction”), or of any political subdivision or taxing authority thereof or therein affecting taxation, or any change in official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment becomes effective on or after the Trade Date hereof, the Issuer has or will become obligated to pay Additional Tax Amounts, as defined below, with respect to this Note as described below. If this Note is redeemed by the Issuer without the approval of such competent authority, if then legally required, then the amounts paid on this Note must be returned to the issuer irrespective of any agreement to the contrary. Prior to the giving of any Notice of redemption pursuant to this paragraph, the Issuer shall deliver to the Trustee (i) a certificate stating that the Issuer is entitled to effect such redemption and setting forth a statement of facts
15
showing that the conditions precedent to the right of the Issuer to so redeem have occurred, and
(ii) an opinion of independent legal counsel satisfactory to the Trustee to such effect based on such statement of facts; provided, that no such Notice of redemption shall be given earlier than 60 calendar days prior to the earliest date on which the Issuer would be obligated to pay such Additional Tax Amounts if a payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more than 60 calendar days prior to the date fixed for redemption or within the Redemption Notice Period specified on the face hereof, which date and the applicable redemption price will be specified in the Notice.
All interest amounts payable in respect of this Note shall be made without deduction or withholding for or on account of any present or future taxes, duties or governmental charges of any nature whatsoever imposed or levied by way of deduction or withholding by or on behalf of the Tax Jurisdiction (“Withholding Taxes”), unless such deduction or withholding is required by law.
“Tax Jurisdiction” means the Federal Republic of Germany or the United States, or any political subdivision or any authority thereof or therein having power to tax.
In the event of such withholding or deduction on payments of interest (but not in respect of the payment of any principal in respect of this Note) and if (but only if) the face hereof indicates that this Note is subject to “Payment of Additional Tax Amounts,” the Issuer shall, to the fullest extent permitted by law, pay such additional tax amounts (“Additional Tax Amounts”) as will be necessary in order that the net amounts received by the Holders, after such withholding or deduction for or on account of any Withholding Taxes imposed upon or as a result of such payment by the Tax Jurisdiction, will equal the respective amounts which would otherwise have been receivable in the absence of such withholding or deduction; except that no such Additional Tax Amounts shall be payable on account of any taxes, duties or governmental charges which:
| (a) | are payable by any person acting as custodian bank or collecting agent on the Holder’s or the Beneficial Owner’s behalf, or otherwise in any manner which does not constitute a deduction or withholding by the Issuer from payments of interest made by the Issuer; or |
| (b) | would not be payable to the extent such deduction or withholding could be avoided or reduced if the Holder or the Beneficial Owner (or any financial institution through which the Holder or the Beneficial Owner holds the Notes or through which payment on the Notes 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 you or the beneficial owner (or such financial institution) or concerning the Holder’s or the Beneficial Owner’s (or financial institution’s) ownership or concerning the Holder’s or the Beneficial Owner’s (or such financial institution’s) nationality, residence, identity or connection with the jurisdiction imposing such tax; or |
16
| (c) | are payable by reason of the Holder’s or the Beneficial Owner’s having, or having had, some personal or business connection with the Federal Republic of Germany and not merely by reason of the fact that payments in respect of the Notes are, or for purposes of taxation are deemed to be, derived from sources in, or are secured in, the Federal Republic of Germany; or |
| (d) | are presented for payment more than 30 days after the Relevant Date (as defined below) except to the extent that the Holder or the Beneficial Owner would have been entitled to Additional Tax Amounts on presenting the same for payment on the last day of the period of 30 days assuming that day to have been a Business Day; or |
| (e) | are deducted or withheld by a paying agent from a payment if the payment could have been made by another paying agent without such deduction or withholding; or |
| (f) | would not be payable if the Notes had been kept in safe custody with, and the payments had been collected by, a banking institution; or |
| (g) | are payable by reason of a change in law or practice that becomes effective more than 30 days after the relevant payment of interest becomes due, or is duly provided for and notice thereof is given in accordance with the Section 12.04 of the Indenture, whichever occurs later. |
No Additional Tax Amounts or any other amounts shall be payable on account of any such withholding or deduction in respect of payments of principal.
“Relevant Date” means the date on which the payment first becomes due but, if the full amount payable has not been received by the paying agent on or before the due date, it means the date on which, the full amount having been so received.
Moreover, all amounts payable in respect of this Note shall be made subject to compliance with Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986 (the “Code”), or any regulations or other official guidance promulgated thereunder, official interpretations thereof, or any applicable agreement entered into in connection therewith (including any agreement, law, regulation, or other official guidance implementing such agreement) and any applicable agreement described in Section 1471(b) of the Code. The Issuer shall have no obligation to pay Additional Tax Amounts or otherwise indemnify a Holder or Beneficial Owner in connection with any such compliance with the Code.
The terms and conditions set forth in the following paragraphs (a) – (k) shall apply to this Note, and by acquiring this Note, the Holder and each Beneficial Owner of this Note shall be bound by and shall be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority.
| (a) | Under the relevant resolution laws and regulations as applicable to the Issuer from time to time, this Note may be subject to the powers exercised by the competent resolution authority to: |
| (i) | write down, including write down to zero, the claims for payment of the principal amount, the interest amount, if any, or any other amount in |
17
respect of this Note;
| (ii) | convert this Note into ordinary shares of (A) the Issuer or (B) any group entity or (C) any bridge bank or other instruments of ownership of such entities qualifying as common equity tier one capital (and the issue to or conferral on the Holder (including each Beneficial Owner) of such ordinary shares or instruments); and/or |
| (iii) | apply any other resolution measure, including, but not limited to, (A) any transfer of this Note to another entity, (B) the amendment,modification or variation of the terms and conditions of this Note or (C) the cancellation of this Note; |
(each, a “Resolution Measure”).
For the avoidance of doubt, any non-payment by the Issuer arising out of any such Resolution Measure will not constitute a failure by the Issuer under the terms of this Note or the Indenture to make a payment of principal of, interest on, or other amounts owing under this Note.
| (b) | By its acquisition of this Note, the Holder (including each Beneficial Owner) of this Note shall be deemed irrevocably to have agreed: |
| (i) | to be bound by, to acknowledge and to accept any Resolution Measure and any amendment, modification or variation of the terms and conditions of this Note to give effect to any Resolution Measure; |
| (ii) | that it will have no claim or other right against the Issuer arising out of any Resolution Measure; and |
| (iii) | that the imposition of any Resolution Measure will not constitute an Event of Default or a default (A) under this Note, (B) under the Indenture or (C) for the purpose of, but only to the fullest extent permitted by, the Trust Indenture Act (including, without limitation, Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act). |
| (c) | The terms and conditions of this Note shall continue to apply in relation to the residual principal amount of, or outstanding amount payable in respect of, this Note, subject to any modification of the amount of interest payable, if any, to reflect the reduction of the principal amount, and any further modification of the terms that the competent resolution authority may decide in accordance with applicable laws and regulations relating to the resolution of banks, banking group companies, credit institutions and/or investment firms incorporated in the Federal Republic of Germany. |
| (d) | No repayment of any then-current principal amount of this Note or payment of interest or any other amount thereon (to the extent of the portion thereof affected by the imposition of a Resolution Measure) shall become due and payable after the imposition of any Resolution Measure by the competent resolution authority, unless |
18
such repayment or payment would be permitted to be made by the Issuer under the laws and regulations of the Federal Republic of Germany then applicable to the Issuer.
| (e) | By its acquisition of this Note, the Holder (and each Beneficial Owner) of this Note waives, to the fullest extent permitted by the Trust Indenture Act and applicable law, any and all claims against the Trustee or the Agents for, agrees not to initiate a suit against the Trustee or the Agents in respect of, and agrees that the Trustee and the Agents shall not be liable for, any action that the Trustee or the Agents take, or abstain from taking, in either case in accordance with the imposition of a Resolution Measure by the competent resolution authority with respect to this Note. |
| (f) | Upon the imposition of a Resolution Measure by the competent resolution authority with respect to this Note, the Issuer shall provide a written notice directly to the Holder in accordance with Section 12.04 of the Indenture as soon as practicable regarding such imposition of a Resolution Measure by the competent resolution authority for purposes of notifying the Holder of such occurrence. The Issuer shall also deliver a copy of such notice to the Trustee and the Agents for information purposes, and the Trustee and the Agents shall be entitled to rely, and will not be liable for relying, on the competent resolution authority and the Resolution Measure identified in such notice. Any delay or failure by the Issuer to give notice shall not affect the validity or enforceability of any Resolution Measure nor the effects thereof on this Note. |
| (g) | If this Note is called or being called for redemption by the Issuer, but the competent resolution authority has imposed a Resolution Measure with respect to this Note prior to the payment of the redemption amount, the relevant redemption notice, if any, shall be automatically rescinded and shall be of no force and effect, and no payment of the redemption amount will be due and payable. |
| (h) | Upon the imposition of any Resolution Measure by the competent resolution authority, the Trustee shall not be required to take any further directions from the Holders under Section 5.09 of the Indenture, which section authorizes Holders of a majority in aggregate principal amount of the debt securities issued under the Indenture at the time Outstanding to direct certain actions relating to such debt securities, and if any such direction was previously given under Section 5.09 of the Indenture to the Trustee by the Holders, it shall automatically cease to be effective, be null and void and have no further effect. The Indenture shall impose no duties, obligations or liabilities upon the Trustee or the Agents whatsoever with respect to the imposition of any Resolution Measure by the competent resolution authority. The Trustee and the Agents shall be fully protected in acting or refraining from acting in accordance with a Resolution Measure. Notwithstanding the foregoing, if, following completion of the imposition of a Resolution Measure by the competent resolution authority, this Note remains outstanding, then the Trustee’s and each Agent’s duties under the Indenture shall remain applicable with respect to this Note following such completion to the extent that the Issuer, the Trustee and the Agents agree pursuant to a supplemental indenture, unless the Issuer, the Trustee and the Agents agree that a supplemental indenture is not necessary. |
19
| (i) | By the acquisition of this Note, the Holder and each Beneficial Owner of this Note shall be deemed irrevocably to have (i) consented to the imposition of any Resolution Measure as it may be imposed without any prior notice by the competent resolution authority of its decision to exercise such power with respect to this Note, (ii) authorized, directed and requested the Depositary and any direct participant in the Depositary or other intermediary through which it holds this Note to take any and all necessary action, if required, to implement the imposition of any Resolution Measure with respect to this Note as it may be imposed, without any further action or direction on the part of the Holder of this Note, the Trustee or the Agents and (iii) acknowledged and accepted that the provisions contained in Article 6 of the Indenture are exhaustive on the matters described in Article 6 of the Indenture to the exclusion of any other agreements, arrangements or understandings between it and the Issuer relating to the terms and conditions of this Note. |
| (j) | If the competent resolution authority imposes a Resolution Measure with respect to less than the total outstanding principal amount of the debt securities issued under the Indenture, unless the Trustee or the Agents are otherwise instructed by the Issuer or the competent resolution authority, any cancellation, write-off or conversion into equity made in respect of such debt securities pursuant to the Resolution Measure will be made on a substantially pro rata basis among any series of debt securities issued under the Indenture. |
| (k) | Any obligations of the Holders to indemnify the Trustee and the Agents under the Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or this Note. To the extent not otherwise precluded by a Resolution Measure, the Issuer’s obligations to indemnify the Trustee and the Agents in accordance with Sections 7.02 and 7.06 of the Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or this Note. |
The 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 debt securities of all series issued under the 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 thereby, (a) extend the final maturity of any such debt security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof, or change the currency of payment thereof, or modify or amend the provisions for conversion of any currency into any other currency, or impair or affect the rights of any Holder to institute suit for the payment thereof or (b) reduce the aforesaid percentage in principal amount of debt securities the consent of the Holders of which is required for any such supplemental indenture. The Issuer and the Trustee may, without the consent of the Holder of this Note, conform the terms of this Note to the description thereof in the prospectus and prospectus supplements relating to the offering and sale of this Note.
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, if any, on this
20
Note as herein provided in the United States, and an office or agency in the United States 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.
21
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 such Notes that such moneys shall be repaid to the Issuer and any person claiming such moneys shall thereafter look only to the Issuer for payment thereof 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.
Subject to the imposition of a Resolution Measure, no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the amount of cash as determined in accordance with the provisions set forth on the face of this Note due with respect to the principal of, premium, if any, and interest, if any, 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, if any, on this Note, for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the 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 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 as may otherwise be required by mandatory provisions of law.
As used herein:
| (a) | the term “Beneficial Owner” shall mean the beneficial owners of this Note (and any interest therein); |
| (b) | the term “bridge bank” shall mean a newly chartered German bank that would receive some or all of the Issuer’s equity securities, assets, liabilities and material contracts, including those attributable to the Issuer’s branches and subsidiaries, in a resolution proceeding; |
| (c) | the term “competent resolution authority” shall mean any authority with the ability to exercise a Resolution Measure; |
| (d) | the term “group entity” shall mean an entity that is included in the corporate |
22
group subject to a Resolution Measure;
| (e) | 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; and |
| (f) | 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 Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
23
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
| TEN COM | – | as tenants in common | |
| TEN ENT | – | as tenants by the entireties | |
| JT TEN | – | as joint tenants with right of survivorship and not as tenants in common |
| UNIF GIFT MIN ACT – | Custodian | ||||
| (Minor) | (Cust) |
| Under Uniform Gifts to Minors Act | |||
| (State) |
Additional abbreviations may also be used though not in the above list.
____________________________
24
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. |
25
EXHIBIT 4.7(l)
DEUTSCHE BANK AKTIENGESELLSCHAFT
NEW YORK BRANCH
Issuer
AND
WILMINGTON TRUST, NATIONAL ASSOCIATION,
Trustee
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
Paying Agent, Transfer Agent and Registrar and Authenticating Agent
Eighth Supplemental Subordinated Indenture
Dated as of January 14, 2021
to the Subordinated Indenture
Dated as of May 21, 2013
Fixed to Floating Reset Rate
Subordinated Tier 2 Notes due 2032
TABLE OF CONTENTS
TABLE OF CONTENTS
| Article 1 Definitions and Incorporation by Reference | 4 |
| Section 1.01 Definitions | 4 |
| Section 1.02 Incorporation by Reference of Trust Indenture Act. | 8 |
| Section 1.03 Rules of Construction. | 9 |
| Article 2 The Notes | 9 |
| Section 2.01 Title and Terms. | 9 |
| Section 2.02 Form of the Notes. | 10 |
| Section 2.03 Rate of Interest. | 12 |
| Section 2.04 Notes Subject to Resolution Measures. | 18 |
| Section 2.05 Legends. | 21 |
| Section 2.06 Book-Entry Provisions for the Global Notes. | 23 |
| Section 2.07 Default. | 24 |
| Section 2.08 Status. | 25 |
| Article 3 Additional Covenants | 27 |
| Section 3.01 Payment of Additional Amounts. | 27 |
| Section 3.02 Written Statement to Trustee. | 29 |
| Article 4 Redemption or Repurchase of Notes | 29 |
| Section 4.01 Deposit of Redemption Price. | 29 |
| Section 4.02 Cessation of Interest Accrual. | 30 |
| Section 4.03 Optional Redemption. | 30 |
| Section 4.04 Tax Redemption. | 30 |
| Section 4.05 Redemption for Regulatory Reasons. | 31 |
| Section 4.06 Payment on the Maturity Date. | 31 |
| Section 4.07 Repurchase. | 31 |
| Section 4.08 Amounts to be Returned to the Issuer. | 31 |
| Article 5 Satisfaction and Discharge of Supplemental Subordinated Indenture | 32 |
| Section 5.01 Satisfaction and Discharge of Supplemental Subordinated Indenture. | 32 |
| Article 6 Miscellaneous Provisions | 32 |
| Section 6.01 Scope of Supplemental Subordinated Indenture. | 32 |
| Section 6.02 Provisions of Supplemental Subordinated Indenture for the Sole Benefit of Parties and Holders of Notes. | 33 |
| Section 6.03 Successors and Assigns of Issuer Bound by Supplemental Subordinated Indenture | 33 |
| Section 6.04 Notices and Demands on Issuer, Trustee, Agents and Holders of Notes. | 33 |
| Section 6.05 Mutilated and Lost Notes. | 35 |
| Section 6.06 Unclaimed Moneys. | 35 |
| Section 6.07 Payments Due on Saturdays, Sundays and Holidays. | 35 |
| Section 6.08 Conflict of any Provisions of Supplemental Subordinated Indenture with Trust Indenture Act. | 35 |
| Section 6.09 Governing Law. | 36 |
i
| Section 6.10 Counterparts. | 36 |
| Section 6.11 Effect of Headings | 36 |
| Section 6.12 Submission to Jurisdiction. | 36 |
| Section 6.13 Not Responsible for Recitals or Issuance of Securities. | 37 |
| Section 6.14 Further Issues. | 37 |
| Section 6.15 Waiver of Right to Set-Off. | 37 |
| Article 7 Supplements to Supplemental Subordinated Indenture | 37 |
| Section 7.01 Supplements without Consent of Holders. | 37 |
EXHIBIT
EXHIBIT A: Form of Global Note
ii
THIS EIGHTH SUPPLEMENTAL SUBORDINATED INDENTURE, dated as of January 14, 2021 among DEUTSCHE BANK AKTIENGESELLSCHAFT (the “Issuer”), ACTING THROUGH ITS NEW YORK BRANCH, 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,” as may be amended from time to time), 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”), a third supplemental subordinated indenture, dated as of December 1, 2017, adding certain provisions to, and modifying certain provisions of the Base Subordinated Indenture, a fifth supplemental subordinated indenture, dated as of July 8, 2020, modifying certain provisions of the Base Subordinated Indenture, and a seventh supplemental subordinated indenture, dated as of January 14, 2021, modifying certain provisions of the Base Subordinated Indenture (references to the “Base Subordinated Indenture” herein shall mean the Base Subordinated Indenture as amended by such third supplemental subordinated indenture, such fifth supplemental subordinated indenture and such seventh supplemental subordinated indenture);
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 eighth 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 Floating Reset Rate Subordinated Tier 2 Notes due 2032 (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;
3
NOW, THEREFORE:
In consideration of the premises and the purchases of the Notes by the holders thereof, the Issuer, DBTCA 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
Definitions and Incorporation by Reference
Section 1.01 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 3.01.
“Agent Member” has the meaning specified in Section 2.06.
“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 6.12.
“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.
“Business Day” means a day on which (i) the Trans-European Automatic Real-time Gross settlement Express Transfer system (TARGET2) is open for business and (ii) 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.
“Calculation Agent” means Deutsche Bank AG, London Branch.
“Compounded SOFR” has the meaning specified in Section 2.03.
“Code” has the meaning specified in Section 3.01
“competent supervisory authority” means any authority primarily responsible for the prudential supervision of the Issuer.
4
“corporation” means any corporation, association, limited liability company, company or business trust.
“CRR” means Regulation (EU) No 575/2013 of the European Parliament and the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (including any provisions of regulatory law supplementing this Regulation); to the extent that any provisions of the CRR are amended or replaced, the term CRR as used in this Supplemental Subordinated Indenture and the terms of the Notes shall refer to such amended provisions or successor provisions.
“Defaulted Interest” has the meaning specified in Section 2.07(a).
“Depositary” means The Depository Trust Company, its nominees and their respective successors.
“Determination Date” means the day falling two Business Days prior to the Reset Date.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Fixed Interest Rate” means 3.729% per annum.
“Fixed Rate Period” means from (and including) the date of issuance to (but excluding) the Reset Date.
“Floating Rate Period” means from (and including) the Reset Date to (but excluding) the Maturity Date.
“Floating Reset Interest Rate” means the variable rate per year which will be equal to Compounded SOFR plus 2.757%.
“Global Notes” has the meaning specified in Section 2.04(a).
“Holder,” “Holder of Notes” or other similar terms means the registered holder of any Note.
“incorporated provision” has the meaning specified in Section 6.08.
“Interest Payment Date” means (i) with respect to the Fixed Rate Period, January 14 and July 14 of each year, commencing on July 14, 2021, and ending on the Reset Date, and (ii) with respect to the Floating Rate Period, the second Business Day after each Interest Period End Date; provided that the Interest Payment Date with respect to the final Interest Period will be the Maturity Date. If any scheduled Interest Payment Date during the Fixed Rate Period is not a Business Day, the Issuer will pay interest on the next Business Day, but the
5
payment will not include the interest accrued during the period from and after the scheduled Interest Payment Date. If the date of redemption or repayment is not a Business Day, the Issuer may pay interest and principal on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after the date of redemption or repayment. With regard to the Floating Rate Period, if the scheduled final Interest Period End Date (i.e., the Maturity Date) falls on a day that is not a Business Day, the payment of principal and interest will be made on the next succeeding Business Day, but interest on that payment will not accrue from and after the scheduled final Interest Period End Date.
An “Interest Period” means, with respect to the Fixed Rate Period, each period from, and including, an Interest Payment Date (or the Issue Date in the case of the first Interest Period during the Fixed Rate Period) to, but excluding, the following Interest Payment Date (or the Reset Date in the case of the final Interest Period during the Fixed Rate Period), and with respect to the Floating Rate Period, each period from, and including, an Interest Period End Date (or the Reset Date in the case of the first Interest Period during the Floating Rate Period) to, but excluding, the following Interest Period End Date (or the Maturity Date in the case of the final Interest Period during the Floating Rate Period).
An “Interest Period End Date” means with respect to the Floating Rate Period, January 14, April 14, July 14 and October 14 of each year, commencing on April 14, 2031 and ending on the Maturity Date; provided that if any scheduled Interest Period End Date (other than the Maturity Date) is not a Business Day (as defined below), it will be postponed to the following Business Day, except that, if that Business Day would fall in the next calendar month, the Interest Period End Date will be the immediately preceding Business Day.
“Issue Date” means January 14, 2021.
“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 January 14, 2032.
“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
6
to make payments hereunder), or any person authorized by the Issuer in accordance with Section 3.04 of the Base Subordinated Indenture.
“Payment Claims” has the meaning specified in Section 2.08(c).
“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.
“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 set 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 (subject to the imposition of any Resolution Measure) 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.
“Relevant Date” means the date on which the payment first becomes due but, if the full amount payable has not been received by the Paying Agent on or before the due date, it means the date on which, the full amount having been so received.
“Reset Date” means January 14, 2031.
“Resolution Measure” has the meaning set forth in Section 2.04.
“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
7
the indebtedness provides that it is not senior in right of payment to the Notes; (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.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed pursuant to Section 2.07(a).
“Tax Jurisdiction” means the Federal Republic of Germany or the United States, or any political subdivision or any authority thereof or therein having power to tax.
“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.
“Withholding Taxes” has the meaning specified in Section 3.01.
Section 1.02 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:
8
“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.
Section 1.03 Rules of Construction.
(a) For all purposes of this Supplemental Subordinated Indenture, except as otherwise expressly provided or unless the context otherwise requires:
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
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
The Notes
Section 2.01 Title and Terms.
(a) The Notes shall be known and designated as the “Fixed to Floating Reset Rate Subordinated Tier 2 Notes due 2032” of the Issuer. The aggregate principal amount of the Notes that may be authenticated and delivered under this Supplemental Subordinated Indenture shall not initially
9
exceed $1,250,000,000 (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 are intended to qualify as own funds in the form of Tier 2 capital of the Issuer under the CRR.
(c) The Notes shall be due and payable on the Maturity Date unless previously redeemed or repurchased and cancelled.
(d) Subject to the imposition of any Resolution Measure or a redemption pursuant to Article 4, 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 Floating Reset Interest Rate. Interest for the Fixed Rate period shall be payable semi-annually in arrears on each Interest Payment Date. Interest for the Floating Rate Period shall be payable quarterly in arrears on the second Business Day following each Interest Period End Date, provided that the final payment of principal and interest will be made on the Maturity Date.
(e) Interest on the Notes for the Fixed Rate Period shall be computed on the basis of a 360-day year of twelve 30-day months. Interest on the Notes for the Fixed Rate Period shall be computed on the basis of the actual number of days in the relevant period divided by 360.
(f) 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.
(g) 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 Subordinated Indenture).
(h) 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
10
Paying Agent in writing not less than 15 calendar days prior to the applicable Interest Payment Date.
Section 2.02 Form of the Notes.
(a) Except as otherwise provided pursuant to this Section 2.02, 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 represent 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 2.05. 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 (or the Authenticating Agent on behalf of 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.
(c) DBTCA has been appointed Registrar and Transfer Agent for the Notes, and DBTCA will maintain at its office in The City of New York a register for the registration and transfer of Notes. The Notes may be transferred at either the aforesaid New York office of DBTCA by surrendering the Notes 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 thereof 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 therefor, a new Note or Notes having identical terms and provisions and having a like aggregate
11
principal amount in authorized denominations, subject to the terms and conditions set forth therein; 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 its 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.
Section 2.03 Rate of Interest.
The Fixed Interest Rate is 3.729% per annum.
The Floating Reset Interest Rate is equal to Compounded SOFR plus 2.757%.
Compounded SOFR
Accrued interest on the Notes during the Floating Rate Period will be calculated by multiplying the principal amount of such notes by an accrued interest factor. This accrued interest factor will be computed by adding the interest factors calculated for each day in the Interest Period for which interest is being paid. The interest factor for each day is computed by dividing the interest rate applicable to that day by 360. The interest rate applicable to a given day during the Floating Rate Period is the sum of the Compounded SOFR plus the Spread.
The “Compounded SOFR” will be computed as follows:
12
“d0”, for any Interest Period, is the number of U.S. Government Securities Business Days in the relevant Interest Period.
“i” is a series of whole numbers from one to d0, each representing the relevant U.S. Government Securities Business Days in chronological order from, and including, the first U.S. Government Securities Business Day in the relevant Interest Period.
“SOFRi”, for any U.S. Government Securities Business Day “i” in the relevant Interest Period, is a reference rate equal to SOFR in respect of that day.
“ni” is the number of calendar days in the relevant Interest Period from, and including, the U.S. Government Securities Business Day “i” to, but excluding, the following U.S. Government Securities Business Day.
“d” is the number of calendar days in the relevant Interest Period.
For these calculations, the daily SOFR in effect on any U.S. Government Securities Business Day will be the applicable SOFR as reset on that date. For purposes of calculating Compounded SOFR, the daily SOFR for each calendar day in the period from, and including, the Rate Cut-Off Date to, but excluding, the Maturity Date will be the daily SOFR as determined in respect of such Rate Cut-Off Date.
For purposes of determining Compounded SOFR, “SOFR” means, with respect to any U.S. Government Securities Business Day:
| (1) | the Secured Overnight Financing Rate in respect of such U.S. Government Securities Business Day as published by the New York Federal Reserve, as the administrator of such rate (or a successor administrator), on the New York Federal Reserve’s Website on or about 5:00 p.m. (New York City time) on the immediately following U.S. Government Securities Business Day; or |
| (2) | if the Secured Overnight Financing Rate in respect of such U.S. Government Securities Business Day does not appear as specified in paragraph (1), unless both a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the Secured Overnight Financing Rate in respect of the last U.S. Government Securities Business |
13
Day for which such rate was published on the New York Federal Reserve’s Website; or
| (3) | if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred: |
| · | the sum of: (a) the alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark for the applicable Corresponding Tenor and (b) the Benchmark Replacement Adjustment; or |
| · | the sum of: (a) the ISDA Fallback Rate and (b) the Benchmark Replacement Adjustment; or |
| · | the sum of: (a) the alternate rate of interest that has been selected by the Issuer or the Issuer’s designee as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar-denominated floating rate notes at such time and (b) the Benchmark Replacement Adjustment. |
“Benchmark” means the Compounded SOFR as defined above; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the Compounded SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement.
“Benchmark Replacement” means the first alternative set forth in the order presented in clause (3) of the definition of “SOFR” that can be determined by the Issuer or the Issuer’s designee as of the Benchmark Replacement Date. In connection with the implementation of a Benchmark Replacement, the Issuer or the Issuer’s designee will have the right to make Benchmark Replacement Conforming Changes from time to time.
“Benchmark Replacement Adjustment” means the first alternative set forth in the order below that can be determined by the Issuer or the Issuer’s designee as of the Benchmark Replacement Date:
(1) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement;
| (2) | if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, then the ISDA Fallback Adjustment; |
14
| (3) | the spread adjustment (which may be a positive or negative value or zero) that has been selected by the Issuer or the Issuer’s designee giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated floating rate notes at such time. |
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that the Issuer or the Issuer’s designee decide may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if the Issuer or the Issuer’s designee decide that adoption of any portion of such market practice is not administratively feasible or if the Issuer or the Issuer’s designee determine that no market practice for use of the Benchmark Replacement exists, in such other manner as the Issuer or the Issuer’s designee determine is reasonably necessary).
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
| (1) | in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark; or |
| (2) | in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein. |
For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
| (1) | a public statement or publication of information by or on behalf of the administrator of the Benchmark announcing that such administrator has ceased or will cease to provide the Benchmark, permanently or indefinitely, provided that, at the time of such statement or |
15
publication, there is no successor administrator that will continue to provide the Benchmark;
| (2) | a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark, the central bank for the currency of the Benchmark, an insolvency official with jurisdiction over the administrator for the Benchmark, a resolution authority with jurisdiction over the administrator for the Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark, which states that the administrator of the Benchmark has ceased or will cease to provide the Benchmark permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark; or |
| (3) | a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative. |
“Business Day” means a day on which (i) the Trans-European Automatic Real-time Gross settlement Express Transfer system (TARGET2) is open for business and (ii) 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.
“Corresponding Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the then-current Benchmark.
“Interest Payment Date” means (i) with respect to the Fixed Rate Period, January 14 and July 14 of each year, commencing on July 14, 2021, and ending on the Reset Date, and (ii) with respect to the Floating Rate Period, the second Business Day after each Interest Period End Date; provided that the Interest Payment Date with respect to the final Interest Period will be the Maturity Date. If any scheduled Interest Payment Date during the Fixed Rate Period is not a Business Day, the Issuer will pay interest on the next Business Day, but the payment will not include the interest accrued during the period from and after the scheduled Interest Payment Date. If the date of redemption or repayment is not a Business Day, the Issuer may pay interest and principal on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after the date of redemption or repayment. With regard to the Floating Rate Period, if the scheduled final Interest Period End Date (i.e., the Maturity Date) falls on a day that is not a Business Day, the payment of principal and interest will be made on the next succeeding Business Day, but interest on that payment will not accrue from and after the scheduled final Interest Period End Date.
16
An “Interest Period” means, with respect to the Fixed Rate Period, each period from, and including, an Interest Payment Date (or the Issue Date in the case of the first Interest Period during the Fixed Rate Period) to, but excluding, the following Interest Payment Date (or the Reset Date in the case of the final Interest Period during the Fixed Rate Period), and with respect to the Floating Rate Period, each period from, and including, an Interest Period End Date (or the Reset Date in the case of the first Interest Period during the Floating Rate Period) to, but excluding, the following Interest Period End Date (or the Maturity Date in the case of the final Interest Period during the Floating Rate Period).
An “Interest Period End Date” means with respect to the Floating Rate Period, January 14, April 14, July 14 and October 14 of each year, commencing on April 14, 2031 and ending on the Maturity Date; provided that if any scheduled Interest Period End Date (other than the Maturity Date) is not a Business Day (as defined below), it will be postponed to the following Business Day, except that, if that Business Day would fall in the next calendar month, the Interest Period End Date will be the immediately preceding Business Day.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
“ISDA Fallback Adjustment” means the spread adjustment (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark for the applicable tenor.
“ISDA Fallback Rate” means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.
“New York Federal Reserve” means the Federal Reserve Bank of New York.
“New York Federal Reserve’s Website” means the website of the New York Federal Reserve, currently at http://www.newyorkfed.org, or any successor source.
“Rate Cut-Off Date” means the date that is the second U.S Government Securities Business Day prior to the Maturity Date.
17
“Reference Time” with respect to any determination of the Benchmark means the time determined by the Issuer or the Issuer’s designee in accordance with the Benchmark Replacement Conforming Changes.
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
“U.S. Government Securities Business Day” means any day except for a Saturday, Sunday or a day on which the Securities Industry and Financial Markets Association (or any successor thereto) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S. government securities.
“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
If a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, any determination, decision or election that may be made by the Issuer or the Issuer’s designee pursuant to this section “Compounded SOFR,” including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection:
| · | will be conclusive and binding absent manifest error; |
| · | will be made in the Issuer’s or the Issuer’s designee’s sole discretion; and |
| · | notwithstanding anything to the contrary in the documentation relating to the Notes, shall become effective without consent from the holders of the Notes or any other party. |
Section 2.04 Notes Subject to Resolution Measures.
(a) By subscribing for or otherwise acquiring the Notes, each Holder (including Beneficial Owners) shall be bound by and shall be deemed to consent to the imposition of any Resolution Measure (as defined below) by the competent resolution authority.
(b) Under the relevant resolution laws and regulations as applicable to the Issuer from time to time, the Notes may be subject to the powers exercised by the competent resolution authority to:
18
| (i) | write down, including write down to zero, the claims for payment of the principal amount, the interest amount or any other amount in respect of the Notes; |
| (ii) | convert the Notes into ordinary shares of (A) the Issuer, (B) any group entity or (C) any bridge bank, or other instruments of ownership of such entities qualifying as Common Equity Tier 1 capital (and the issue to or conferral on the holders (including the beneficial owners) of such ordinary shares or instruments); and/or |
| (iii) | apply any other resolution measure, including, but not limited to, (A) any transfer of the Notes to another entity, (B) the amendment, modification or variation of the terms and conditions of the Notes or (C) the cancellation of the Notes; |
(each, a “Resolution Measure”).
For the avoidance of doubt, any non-payment by the Issuer arising out of any such Resolution Measure will not constitute a failure by the Issuer under the terms of the Notes or the Subordinated Indenture to make a payment of principal of, interest on, or other amounts owing under the Notes.
(c) By its acquisition of the Notes, each Holder (including each Beneficial Owner) shall be deemed irrevocably to have agreed:
| (i) | to be bound by, to acknowledge and to accept any Resolution Measure and any amendment of the terms and conditions of the Notes to give effect to any Resolution Measure; |
| (ii) | that it will have no claim or other right against the Issuer arising out of any Resolution Measure; and |
| (iii) | that the imposition of any Resolution Measure will not constitute a default or an Event of Default (A) under the Notes, (B) under the Subordinated Indenture or (C) for the purpose of, but only to the extent permitted by, the Trust Indenture Act (including, without limitation, Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act). |
(d) The terms and conditions of the Notes shall continue to apply in relation to the residual principal amount of, or outstanding amount
19
payable in respect of, the Notes, subject to any modification of the amount of interest payable, if any, to reflect the reduction of the principal amount, and any further modification of the terms that the competent resolution authority may decide in accordance with applicable laws and regulations relating to the resolution of banks, banking group companies, credit institutions and/or investment firms incorporated in the Federal Republic of Germany.
(e) No repayment of any then-current principal amount of the Notes or payment of interest or any other amount thereon (to the extent of the portion thereof affected by the imposition of a Resolution Measure) shall become due and payable after the imposition of any Resolution Measure by the competent resolution authority, unless such repayment or payment would be permitted to be made by the Issuer under the laws and regulations of the Federal Republic of Germany then applicable to the Issuer.
(f) By its acquisition of the Notes, each Holder (including each Beneficial Owner) waives, to the fullest extent permitted by the Trust Indenture Act and applicable law, any and all claims against the Trustee and the Agents for, agrees not to initiate a suit against the Trustee or the Agents in respect of, and agrees that the Trustee and the Agents shall not be liable for, any action that the Trustee or any of the Agents takes, or abstains from taking, in either case in accordance with the imposition of a Resolution Measure by the competent resolution authority with respect to the Notes.
(g) Upon the imposition of a Resolution Measure by the competent resolution authority with respect to the Notes, the Issuer shall provide a written notice directly to the Holders in accordance with Section 11.04 of the Base Subordinated Indenture as soon as practicable regarding such imposition of a Resolution Measure for purposes of notifying Holders of such occurrence. The Issuer shall also deliver a copy of such notice to the Trustee and the Agents for information purposes only, and the Trustee and the Agents shall be entitled to rely, and will not be liable for relying, on the competent resolution authority and the Resolution Measure identified in such notice. Any delay or failure by the Issuer to give notice shall not affect the validity or enforceability of any Resolution Measure nor the effects thereof on the Notes.
(h) If the Issuer has elected to redeem any Notes but the competent resolution authority has imposed a Resolution Measure with respect to the Notes prior to the payment of the redemption amount for the Notes, the relevant redemption notice, if any, shall be automatically rescinded and shall be of no force and effect, and no payment of the redemption amount will be due and payable.
(i) Upon the imposition of any Resolution Measure by the competent resolution authority, the Trustee shall not be required to take any further directions from Holders of the Notes under Section 5.09 of the Base
20
Subordinated Indenture, which section authorizes Holders of a majority in aggregate principal amount of the Notes at the time Outstanding to direct certain actions relating to the notes, and if any such direction was previously given under Section 5.09 of the Base Subordinated Indenture to the Trustee by the Holders, it shall automatically cease to be effective, be null and void and have no further effect. The Indenture shall impose no duties, obligations or liabilities upon the Trustee or the Agents whatsoever with respect to the imposition of any Resolution Measure by the competent resolution authority, and the Trustee and the Agents shall be fully protected in acting or refraining from acting in accordance with a Resolution Measure. Notwithstanding the foregoing, if, following completion of the imposition of a Resolution Measure by the competent resolution authority, the Notes remain outstanding (for example, if the imposition of a Resolution Measure results in only a partial write-down of the principal of the Notes), then the Trustee’s and the Agents’ duties under the Subordinated Indenture shall remain applicable with respect to the Notes following such completion to the extent that the Issuer, the Trustee and the Agents agree pursuant to a supplemental indenture, unless the Issuer, the Trustee and the Agents agree that such supplemental indenture is not necessary.
(j) By the acquisition of the notes, each Holder (including each Beneficial Owner) shall be deemed irrevocably to have (i) consented to the imposition of any Resolution Measure as it may be imposed without any prior notice by the competent resolution authority of its decision to exercise such power with respect to the Notes, (ii) authorized, directed and requested the Depositary and any direct participant in the Depositary or other intermediary through which it holds such Notes to take any and all necessary action, if required, to implement the imposition of any Resolution Measure with respect to the Notes as it may be imposed, without any further action or direction on the part of such Holder of the Notes, the Trustee or the Agents and (iii) acknowledged and accepted that the provisions contained in this section of the Notes are exhaustive on the matters described in Section 2.04 of the Supplemental Subordinated Indenture and the corresponding provisions of the Notes to the exclusion of any other agreements, arrangements or understandings between it and the Issuer relating to the terms and conditions of the Notes.
(k) If the competent resolution authority imposes a Resolution Measure with respect to less than the total outstanding principal amount of the Notes, unless the Trustee or the Agents are otherwise instructed by the Issuer or the competent resolution authority, any cancellation, write-off or conversion into equity made in respect of the Notes pursuant to the Resolution Measure will be made on a substantially pro rata basis among the Notes of any series.
(l) Any obligations of the Holders to indemnify the Trustee and the Agents under this Supplemental Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or the Notes. To the extent not otherwise precluded by a Resolution
21
Measure, the Issuer’s obligations to indemnify the Trustee and the Agents in accordance with Sections 6.02 and 6.06 of the Base Subordinated Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or the Notes.
Section 2.05 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 (OR AN INTEREST IN THE NOTES REPRESENTED HEREBY).
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
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 WILL NOT BE, AND IT IS NOT 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 OR OTHER ARRANGEMENT 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, PLAN’S OR ARRANGEMENT’S INVESTMENT IN SUCH ENTITY (EACH, A “BENEFIT PLAN INVESTOR”),
22
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 ANY 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 THIS NOTE OR ANY INTEREST HEREIN, OR AS A RESULT OF ANY EXERCISE BY THE ISSUER OR ANY OF ITS AFFILIATES OF ANY RIGHTS IN CONNECTION WITH THIS NOTE OR ANY INTEREST HEREIN; 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 OR ANY INTEREST HEREIN.
Section 2.06 Book-Entry Provisions for the Global Notes.
(a) The Global Notes initially shall: be registered in the name of the name of the Depositary (or a nominee thereof); and 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
23
Depositary and the Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Note.
(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 2.06(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 2.07 Default.
(a) Subject to the imposition of any Resolution Measure, 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
24
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 does not 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 Resolution Measure, the Issuer will be in default on its obligations under the Subordinated Indenture. In such case, the Trustee and the Holders of the Notes may take action against the Issuer, but they may not accelerate the maturity of the Notes. If the Issuer fails to make any payments of principal of, interest on or other amounts owing under the Notes when due (i) pursuant to the subordination provisions of the Notes or (ii) due to a Resolution Measure, the Trustee and the Holders will not be permitted to take such action. Moreover, the parties hereto acknowledge that in the event of a Resolution Measure, the Holders may permanently lose the right to the affected amounts and each Holder (including each Beneficial Owner) shall, by acquiring any Notes, be bound, and will be deemed to have consented, as provided in Section 2.04. 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.
(c) Upon the occurrence of any Event of Default or any default in the payment of principal of, interest on, or other amounts owing under the Notes, 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 the Notes whether in connection with any breach by the Issuer of its obligations under the Notes, 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 the Notes prior to any date on which the principal of, or any interest on, the Notes would have otherwise been payable.
(d) Other than the limited remedies specified above, no remedy against the Issuer shall be available to the Trustee or the Holders of the Notes whether for the recovery of amounts owing in respect of the Notes 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 the Notes, 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 the Subordinated Indenture, and the imposition of any Resolution Measure.
25
Section 2.08 Status.
(a) The Notes are intended to qualify as own funds instruments of the Issuer within the meaning of Article 4 (1) no. 119 of the CRR (“Own Funds Instruments”) constituting own funds in the form of Tier 2 capital (Ergänzungskapital) within the meaning of Article 63 of the CRR. The obligations under the Notes constitute unsecured and subordinated obligations of the Issuer, ranking pari passu among themselves and, subject to applicable law from time to time, pari passu with all other equally subordinated obligations of the Issuer under other instruments issued as, and qualifying from time to time as, own funds in the form of Tier 2 capital within the meaning of Article 63 of the CRR. In the event Resolution Measures are imposed on the Issuer or in the event of the dissolution, liquidation, insolvency (Insolvenzverfahren), composition or other proceedings for the avoidance of insolvency of, or against the Issuer, the obligations under the Notes shall be fully subordinated to all obligations which do not qualify as Own Funds Instruments; this includes (i) all claims of unsubordinated creditors of the Issuer (including claims against the Issuer under its unsecured and unsubordinated non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including obligations of the Issuer under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) sentence 2 of the German Banking Act) (or any successor provision thereof)), (ii) the claims specified in Section 39(1) nos. 1 to 5 of the German Insolvency Code (Insolvenzordnung) (or any successor provision thereof) and (iii) contractually subordinated obligations of the Issuer within the meaning of Section 39(2) of the German Insolvency Code (or any successor provision thereof) which do not qualify as Own Funds Instruments at the time Resolution Measures are imposed on the Issuer or in the event of a dissolution, liquidation, insolvency, composition or other proceedings for the avoidance of insolvency of, or against, the Issuer (any such senior-ranking claims and obligations, the “Priority Claims”). In any such event, no amounts shall be payable in respect of the Securities until all Priority Claims have been satisfied in full. If the Notes no longer qualify as Tier 2 capital or other own funds within the meaning of the CRR, the obligations under the Notes will, pursuant to Section 46f (7a) of the German Banking Act, rank senior to all obligations constituting Own Funds Instruments. The Notes shall rank equally and pari passu with all other unsecured and equally subordinated debt (it being understood that no Priority Claims constitute such equally subordinated obligations) of the Issuer, except as otherwise provided by applicable law or the terms of any other indebtedness, and in particular, if such debt is expressed to rank junior to the Notes, then the Notes shall rank senior to such junior debt, but junior to the Priority Claims, except as otherwise provided by applicable law.
(b) The Notes (including any Coupons relating thereto) constitute the direct and unconditional obligations of the Issuer and are subordinated to the Priority Claims. The obligations of the Issuer under the Notes
26
shall rank without preference or priority among themselves. The obligations of the Issuer under the terms of the Notes, whether on account of principal, interest or otherwise, are subordinated to the Priority Claims of the Issuer and will rank junior to the claims of the holders of all Priority Claims of the Issuer in the event any Resolution Measures are imposed on the Issuer or 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 that from time to time constitutes own funds within the meaning of the CRR (it being understood that no Priority Claims constitute such subordinated obligations) of the Issuer, except as otherwise provided by applicable law or the terms of any such other indebtedness, and in particular, they 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 the Notes, except as otherwise provided by applicable law. In the event any Resolution Measures are imposed on the Issuer or in the event of bankruptcy or insolvency, suspension of payments, dissolution, liquidation or winding up of the Issuer, no amounts will be payable under the Notes until the claims of all creditors of Priority Claims have been satisfied in full.
For the avoidance of doubt, Senior Indebtedness shall constitute Priority Claims. The Notes are subordinated to, and shall rank junior to, Senior Indebtedness. In the event any Resolution Measures are imposed on the Issuer or in the event of bankruptcy or insolvency, suspension of payments, dissolution, liquidation or winding up of the Issuer, no amounts will be payable under the Notes until the claims of all creditors of Senior Indebtedness have been satisfied in full.
(c) 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 subsequent agreement may limit the subordination pursuant to the subordination provisions set out above or shorten the term of the Notes or any applicable notice period. No collateral or guarantee shall be provided at any time to secure claims of the Holders under the Notes; any collateral or guarantee already provided or granted in the future in connection with other liabilities of the Issuer may not be used for claims under the Notes.
Article
3
Additional Covenants
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 3.01 Payment of Additional Amounts. All interest amounts payable in respect of the Notes shall be made without deduction or withholding for or on account of any present or future taxes, duties or governmental charges of
27
any nature whatsoever imposed or levied by way of deduction or withholding by or on behalf of the Tax Jurisdiction (“Withholding Taxes”), unless such deduction or withholding is required by law.
In the event of such withholding or deduction on payments of interest (but not in respect of the payment of any principal in respect of the Notes), the Issuer shall, to the fullest extent permitted by law, pay such additional amounts (“Additional Amounts”) as will be necessary in order that the net amounts received by the Holders, after such withholding or deduction for or on account of any Withholding Taxes imposed upon or as a result of such payment by the Tax Jurisdiction, will equal the respective amounts which would otherwise have been receivable in the absence of such withholding or deduction; except that no such Additional Amounts shall be payable on account of any taxes, duties or governmental charges which:
(a) are payable by any person acting as custodian bank or collecting agent on the Holder’s or the beneficial owner’s behalf, or otherwise in any manner which does not constitute a deduction or withholding by the Issuer from payments of interest made by the Issuer; or
(b) in the case of U.S. federal income taxes, are imposed on interest received by or on behalf of (1) a 10-percent shareholder (as defined in Section 871(h)(3)(B) of the U.S. Internal Revenue Code of 1986 (the “Code”) and the regulations that may be promulgated thereunder) of the Issuer, (2) a controlled foreign corporation that is related to the Issuer within the meaning of Section 864(d)(4) of the Code, or (3) a bank receiving interest described in Section 881(c)(3)(A) of the Code, to the extent such tax, assessment or other governmental charge would not have been imposed but for the Holder’s or beneficial owner’s status as described in clauses (1) through (3) of this paragraph; or
(c) would not be payable to the extent such deduction or withholding could 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; or
28
(d) are payable by reason of the Holder’s or the beneficial owner’s having, or having had, some personal or business connection with the Tax Jurisdiction and not merely by reason of the fact that payments in respect of the Notes are, or for purposes of taxation are deemed to be, derived from sources in, or are secured in, the Tax Jurisdiction; or
(e) are presented for payment more than 30 days after the Relevant Date except to the extent that the Holder or the beneficial owner would have been entitled to Additional Amounts on presenting the same for payment on the last day of the period of 30 days assuming that day to have been a Business Day; or
(f) are deducted or withheld by a paying agent from a payment if the payment could have been made by another paying agent without such deduction or withholding; or
(g) would not be payable if the Notes had been kept in safe custody with, and the payments had been collected by, a banking institution; or
(h) are payable by reason of a change in law or practice that becomes effective more than 30 days after the relevant payment of interest becomes due, or is duly provided for and notice thereof is given in accordance with Section 11.04 of the Base Subordinated Indenture, whichever occurs later.
No Additional Amounts or any other amounts will be payable on account of any such withholding or deduction in respect of payments of principal.
Moreover, all amounts payable in respect of the Notes shall be made subject to compliance with Sections 1471 through 1474 of the Code, or any regulations or other official guidance promulgated thereunder, official interpretations thereof, or any applicable agreement entered into in connection therewith (including any agreement, law, regulation, or other official guidance implementing such agreement) (commonly referred to as the “Foreign Account Tax Compliance Act” or “FATCA”) and any applicable agreement described in Section 1471(b) of the Code. The Issuer shall have no obligation to pay Additional Amounts or otherwise indemnify a Holder or beneficial owner in connection with any such compliance with the Code.
Section 3.02 Written Statement to Trustee. The Issuer will furnish to the Trustee on or before March 31 in each year (beginning with March 31, 2018) a brief certificate that complies with the requirements of the Trust Indenture Act (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
29
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
Redemption or Repurchase of Notes
Section 4.01 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 4.02 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 4.03 Optional Redemption.
(a) Subject to the prior consent of the competent supervisory authority, the Issuer may redeem all of the Notes, in whole but not in part, at its option on any Business Day during the period from (and including) October 14, 2030 to (and including) the Reset Date, upon the giving of a notice as described below. Redemption shall be made at the Redemption Price together with accrued and unpaid interest to (but excluding) the Reset Date.
(b) Notice of such redemption on the Reset Date shall be given by the Issuer to the Holders not less than 5 nor more than 60 days prior to the Reset Date, which date and the Redemption Price shall be specified in the notice. Notice to Holders shall be given in accordance with Section 12.02 of the Base Subordinated Indenture.
Section 4.04 Tax Redemption.
(a) Subject to the prior consent of the competent supervisory authority, the Issuer may redeem all of the Notes in whole but not in part, at any time at the option of the Issuer, at the Redemption Price together with any accrued and unpaid interest to (but excluding) the Redemption Date if, as a result of any change in, or amendment to, the laws or regulations prevailing in the Tax Jurisdiction, which becomes effective on or after the Issue Date, or as a result of any application or official interpretation of such laws or regulations not generally known before that date, Withholding Taxes are or there is a substantial probability that they will be leviable on payments of interest in respect of the Notes, and the Issuer would be obligated to pay Additional Amounts with respect to such
30
Withholding Taxes, as described in Section 3.01, provided that the conditions in Article 78(4)(b) of the CRR are met, pursuant to which the competent supervisory authority may permit any such redemption only if it is satisfied that the change in the applicable tax treatment is material and was not reasonably foreseeable at the Issue Date. The Issuer may exercise such redemption right on giving not less than 30 days’ notice to the Holders. No such notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Issuer would be obligated to withhold or pay Withholding Taxes in respect of payments of interest, were a payment in respect of the Notes then made. Notice to Holders shall be given in accordance with Section 12.02 of the Base Subordinated Indenture.
(b) Before any notice of tax redemption pursuant to Section 4.04(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. Such notice, once given to the Trustee, shall be irrevocable.
Section 4.05 Redemption for Regulatory Reasons. Subject to the prior consent of the competent supervisory authority, the Issuer may redeem all of the Notes in whole but not in part, at any time at the option of the Issuer, at the Redemption Price together with any accrued and unpaid interest to (but excluding) the Redemption Date if there is a change in the regulatory classification of the Notes that would be likely to result in (i) its exclusion in full or in part from the Issuer’s own funds under the CRR or any successor legislation, other than for reasons of an amortization in accordance with Article 64 (2) of the CRR, or as a consequence of a write down or conversion, as the case may be, or (ii) their reclassification as a lower quality of the Issuer’s own funds than as of the Issue Date, provided that the conditions in Article 78(4)(a) of the CRR are met, pursuant to which the competent supervisory authority may permit any such redemption only if it considers the change in the regulatory classification to be sufficiently certain and is satisfied that the regulatory reclassification of the Notes was not reasonably foreseeable at the Issue Date. Notice of such redemption shall be given to the Holders upon not less than 30 and not more than 60 days prior to the date of redemption. Any such notice shall be given in accordance with Section 12.02 of the Base Subordinated Indenture only after having received the consent of the competent supervisory authority. Subject to Section 2.04(h), such notice shall be irrevocable and shall state the date set for redemption and the reason for redemption.
31
Section 4.06 Payment on the Maturity Date. Unless previously redeemed or repurchased and cancelled, the Notes shall 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.
Section 4.07 Repurchase. Subject to Section 4.08, the Issuer may purchase Notes in the open market or otherwise and at any price with the prior consent of the competent supervisory authority. Notes purchased by the Issuer may, at its option, be held, resold or surrendered to the Agents for cancellation.
Section 4.08 Amounts to be Returned to the Issuer. Any redemption or repurchase of the Notes prior to their scheduled maturity requires the prior consent of the competent supervisory authority and any redemption shall not occur before five years after the date of issuance, except where the conditions set out in Article 78(4) of the CRR are met. If the Notes are redeemed or repurchased by the Issuer otherwise than in the circumstances described in Article 4, then the amounts redeemed or paid must be returned to the Issuer irrespective of any agreement to the contrary unless the competent supervisory authority has given its consent to such early redemption or repurchase.
Article
5
Satisfaction and Discharge of Supplemental Subordinated Indenture
Section 5.01 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
32
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
Miscellaneous Provisions
Section 6.01 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.
Section 6.02 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 6.03 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 6.04 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 New York Branch
Attn: Treasury / US Issuance
60 Wall Street, 30th Floor
33
Mail Stop: NYC60-3002
New York, New York 10005
United States of America
or
Deutsche Bank AG
Attn: Group Treasury, Capital Markets Issuance
Mainzer Landstrasse 11-17
60329 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, 50 South Sixth Street, Suite 1290, Minneapolis, MN 55402, Attn: Corporate Trust Administration – Deutsche Bank Administrator.
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
Global Security Services
Global Transaction Banking
60 Wall Street, 24th Floor
Mail Stop: NYC60-2405
New York, New York 10005
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 security register maintained by the Registrar on behalf of the Issuer, and will be deemed given when mailed.
34
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.
Section 6.05 Mutilated and Lost Notes. In case the Notes shall at any time become mutilated, defaced or be destroyed, lost or stolen and the 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 the Notes, 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 the 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 the Note mutilated, defaced, destroyed, lost or stolen.
Section 6.06 Unclaimed Moneys. 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 Holder 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 the Notes as the same shall become due.
35
Section 6.07 Payments Due on Saturdays, Sundays and Holidays. If the date of maturity of interest on or principal of the Notes or the date set 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 set for redemption, or repayment, as the case may be, and no interest shall accrue for the period after such date.
Section 6.08 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 6.09 Governing Law. 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 subordination 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.
Section 6.10 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. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective as delivery of a manually executed counterpart of this Supplemental Subordinated Indenture. Each of the parties to this Supplemental Subordinated Indenture represents that it has undertaken commercially reasonable steps to verify the identity of each individual person executing any such counterparts via electronic signature on behalf of such party and has and will maintain sufficient records of the same. This Supplemental Subordinated Indenture shall become effective when each party shall have received a counterpart hereof signed by all of the other parties to this Supplemental Subordinated Indenture.
Section 6.11 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.
36
Section 6.12 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 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 DB USA Corporation, c/o Office of the Secretary, Attention: Carol Saracco, 60 Wall Street, New York, NY 10005, Email: carol.saracco@db.com, as its Authorized Agent, and represents and warrants that the Authorized Agent has agreed to act as said agent for service of process.
Section 6.13 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 6.14 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 6.15 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 obligations of the Issuer under or in respect of any Note and any liability owed by a Holder) that they might otherwise have against the Issuer,
37
whether before or during the Issuer’s winding up or administration, and no Holder may set off its claims arising under the Notes against any of claims of the Issuer.
Article
7
Supplements to Supplemental Subordinated Indenture
Section 7.01 Supplements without Consent of Holders. Subject to the prior consent of the competent supervisory authority, if required under the CRR or other applicable laws and regulations for the recognition of the Notes as Tier 2 capital, 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 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 January 11, 2021 will not be deemed to adversely affect the interests of the Holders of the Notes.
38
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Subordinated Indenture to be duly executed all as of the date first written above.
Very truly yours,
DEUTSCHE BANK AKTIENGESELLSCHAFT NEW YORK BRANCH |
||||||
| By: | /s/ Jonathan Blake | |||||
| Name: | Jonathan Blake | |||||
| Title: | Managing Director | |||||
| By: | /s/ Thomas Rueckert | |||||
| Name: | Thomas Rueckert | |||||
| Title: | Vice President | |||||
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee |
||||||
| By: | /s/ Barry D. Somrock | |||||
| Name: | Barry D. Somrock | |||||
| Title: | Vice President | |||||
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Paying Agent, Transfer Agent and Registrar and Authenticating Agent |
||||||
| By: | /s/ Chris Niesz | |||||
| Name: | Chris Niesz | |||||
| Title: | Vice President | |||||
| By: | /s/ Luke Russell | |||||
| Name: | Luke Russell | |||||
| Title: | Assistant Vice President | |||||
39
EXHIBIT A
FORM OF GLOBAL NOTE
DEUTSCHE
BANK AG
NEW YORK BRANCH
[FORM OF FACE OF DEBT SECURITY]
FIXED TO FLOATING RESET RATE SUBORDINATED TIER 2 NOTE DUE 2032
| REGISTERED | CUSIP: US251526CF47 |
| No. | ISIN: 251526 CF4 |
$[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 (OR AN INTEREST IN THE NOTES REPRESENTED HEREBY).
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
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 WILL NOT BE, AND IT IS NOT 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 OR OTHER
A-1
ARRANGEMENT 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, PLAN’S OR ARRANGEMENT’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 ANY 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 THIS NOTE OR ANY INTEREST HEREIN, OR AS A RESULT OF ANY EXERCISE BY THE ISSUER OR ANY OF ITS AFFILIATES OF ANY RIGHTS IN CONNECTION WITH THIS NOTE OR ANY INTEREST HEREIN; 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 OR ANY INTEREST HEREIN.
A-2
GLOBAL NOTE
Fixed to Floating Reset Rate Subordinated Tier 2 Note due 2032
| Issue Date | January 14, 2021. |
| Reset Date | January 14, 2031. |
| Maturity Date | January 14, 2032. |
| Face Amount | [insert face amount]. |
| Aggregate Face Amount | $1,250,000,000. |
| Denominations | $200,000 and integral multiples of $1,000 in excess thereof. |
| Fixed Interest Rate | From (and including) the Issue Date to (but excluding) the Reset Date, 3.729% per annum.
|
| Floating Reset Interest Rate | From (and including) Reset Date to (but excluding) the Maturity Date, a variable rate equal to Compounded SOFR plus 2.757%.
|
Accrued interest on this Note during the Floating Rate Period will be calculated by multiplying the principal amount of such notes by an accrued interest factor. This accrued interest factor will be computed by adding the interest factors calculated for each day in the Interest Period for which interest is being paid. The interest factor for each day is computed by dividing the interest rate applicable to that day by 360. The interest rate applicable to a given day during the Floating Rate Period is the sum of the Compounded SOFR plus the Spread.
The “Compounded SOFR” will be computed as follows:
|
A-3
“d0”, for any Interest Period, is the number of U.S. Government Securities Business Days in the relevant Interest Period.
“i” is a series of whole numbers from one to d0, each representing the relevant U.S. Government Securities Business Days in chronological order from, and including, the first U.S. Government Securities Business Day in the relevant Interest Period.
“SOFRi”, for any U.S. Government Securities Business Day “i” in the relevant Interest Period, is a reference rate equal to SOFR in respect of that day.
“ni” is the number of calendar days in the relevant Interest Period from, and including, the U.S. Government Securities Business Day “i” to, but excluding, the following U.S. Government Securities Business Day.
“d” is the number of calendar days in the relevant Interest Period.
For these calculations, the daily SOFR in effect on any U.S. Government Securities Business Day will be the applicable SOFR as reset on that date. For purposes of calculating Compounded SOFR, the daily SOFR for each calendar day in the period from, and including, the Rate Cut-Off Date to, but excluding, the Maturity Date will be the daily SOFR as determined in respect of such Rate Cut-Off Date.
For purposes of determining Compounded SOFR, “SOFR” means, with respect to any U.S. Government Securities Business Day:
(1) the Secured Overnight Financing Rate in respect of such U.S. Government Securities Business Day as published by the New York Federal Reserve, as the administrator of such rate (or a successor administrator), on the New York Federal Reserve’s Website on or about 5:00 p.m.
|
A-4
(New York City time) on the immediately following U.S. Government Securities Business Day; or
(2) if the Secured Overnight Financing Rate in respect of such U.S. Government Securities Business Day does not appear as specified in paragraph (1), unless both a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the Secured Overnight Financing Rate in respect of the last U.S. Government Securities Business Day for which such rate was published on the New York Federal Reserve’s Website; or
(3) if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred:
· the sum of: (a) the alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark for the applicable Corresponding Tenor and (b) the Benchmark Replacement Adjustment; or
· the sum of: (a) the ISDA Fallback Rate and (b) the Benchmark Replacement Adjustment; or
· the sum of: (a) the alternate rate of interest that has been selected by the Issuer or the Issuer’s designee as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar-denominated floating rate notes at
|
A-5
such time and (b) the Benchmark Replacement Adjustment.
“Benchmark” means the Compounded SOFR as defined above; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the Compounded SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement.
“Benchmark Replacement” means the first alternative set forth in the order presented in clause (3) of the definition of “SOFR” that can be determined by the Issuer or the Issuer’s designee as of the Benchmark Replacement Date. In connection with the implementation of a Benchmark Replacement, the Issuer or the Issuer’s designee will have the right to make Benchmark Replacement Conforming Changes from time to time.
“Benchmark Replacement Adjustment” means the first alternative set forth in the order below that can be determined by the Issuer or the Issuer’s designee as of the Benchmark Replacement Date:
(1) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement;
(2) if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, then the ISDA Fallback Adjustment;
(3) the spread adjustment (which may be a positive or negative value or zero) that has been selected by the Issuer
|
A-6
or the Issuer’s designee giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated floating rate notes at such time.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that the Issuer or the Issuer’s designee decide may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if the Issuer or the Issuer’s designee decide that adoption of any portion of such market practice is not administratively feasible or if the Issuer or the Issuer’s designee determine that no market practice for use of the Benchmark Replacement exists, in such other manner as the Issuer or the Issuer’s designee determine is reasonably necessary).
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark; or
| |
A-7
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.
For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of the Benchmark announcing that such administrator has ceased or will cease to provide the Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark;
(2) a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark, the central bank for the currency of the Benchmark, an insolvency official with jurisdiction over the administrator for the Benchmark, a resolution authority with jurisdiction over the administrator for the Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark, which states that the administrator of the Benchmark has ceased or will cease to provide the
|
A-8
Benchmark permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark; or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative.
“Corresponding Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the then-current Benchmark.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
“ISDA Fallback Adjustment” means the spread adjustment (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark for the applicable tenor.
“ISDA Fallback Rate” means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.
|
A-9
“New York Federal Reserve” means the Federal Reserve Bank of New York.
“New York Federal Reserve’s Website” means the website of the New York Federal Reserve, currently at http://www.newyorkfed.org, or any successor source.
“Rate Cut-Off Date” means the date that is the second U.S Government Securities Business Day prior to the Maturity Date.
“Reference Time” with respect to any determination of the Benchmark means the time determined by the Issuer or the Issuer’s designee in accordance with the Benchmark Replacement Conforming Changes.
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
“U.S. Government Securities Business Day” means any day except for a Saturday, Sunday or a day on which the Securities Industry and Financial Markets Association (or any successor thereto) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S. government securities.
“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
If a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, any determination, decision or election that may be made by the Issuer or the Issuer’s designee pursuant to this section “Compounded SOFR,” including any determination with respect to a tenor, rate or adjustment or of the occurrence
|
A-10
or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection:
· will be conclusive and binding absent manifest error;
· will be made in the Issuer’s or the Issuer’s designee’s sole discretion; and
notwithstanding anything to the contrary in the documentation relating to this Note, shall become effective without consent from the holders of this Notes or any other party.
| |
| Interest Periods | With respect to the Fixed Rate Period, each period from, and including, an Interest Payment Date (or the Issue Date in the case of the first Interest Period during the Fixed Rate Period) to, but excluding, the following Interest Payment Date (or the Reset Date in the case of the final Interest Period during the Fixed Rate Period).
With respect to the Floating Rate Period, each period from, and including, an Interest Period End Date (or the Reset Date in the case of the first Interest Period during the Floating Rate Period) to, but excluding, the following Interest Period End Date (or the Maturity Date in the case of the final Interest Period during the Floating Rate Period).
|
| Interest Period End Dates | With respect to the Floating Rate Period, January 14, April 14, July 14 and October 14 of each year, commencing on April 14, 2031 and ending on the Maturity Date; provided that if any scheduled Interest Period End Date (other than the Maturity Date) is not a Business Day (as defined below), it will be postponed to the following Business Day, except that, if that Business Day would fall in the next calendar month, the Interest Period End Date will be the immediately preceding Business Day. |
A-11
| Interest Payment Date(s) | With respect to the Fixed Rate Period, January 14 and July 14 of each year, commencing on July 14, 2021, and ending on the Reset Date.
If any scheduled Interest Payment Date is not a Business Day, the Issuer will pay interest on the next Business Day, but the payment will not include the interest accrued during the period from and after the scheduled Interest Payment Date. If the date of redemption or repayment is not a Business Day, the Issuer may pay interest and principal on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after the date of redemption or repayment.
With respect to the Floating Rate Period, the second Business Day following each Interest Period End Date; provided that the Interest Payment Date with respect to the final Interest Period will be the Maturity Date.
If the scheduled final Interest Period End Date (i.e., the Maturity Date) falls on a day that is not a Business Day, the payment of principal and interest will be made on the next succeeding Business Day, but interest on that payment will not accrue from and after the scheduled final Interest Period End Date. |
| Optional Redemption | Yes. |
| Tax Redemption | Yes. |
| Redemption for Regulatory Reasons | Yes. |
| Payment of Additional Tax Amounts | Yes. |
A-12
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”), acting through its New York Branch, 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 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 or quarterly in arrears, for the Fixed Rate Period or the Floating Rate Period, respectively, 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).
Subject to the imposition of a Resolution Measure (as defined on the reverse hereof) or any redemption prior to the Maturity Date in accordance with the terms of this Note, 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; 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 or electronic signature (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com), this
A-13
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.
A-14
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
| DATED: January 14, 2021 | DEUTSCHE BANK AG, acting through its NEW YORK BRANCH |
|||||
| 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: _____________________________________ Authorized Officer:
| |
A-15
[FORM OF REVERSE OF SECURITY]
§
1
General
| (1) | 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”, and together with the Transfer Agent, the Paying Agent and Registrar, the “Agents”) (the “Base Subordinated Indenture,” as may be amended from time to time), a third supplemental subordinated indenture, dated as of December 1, 2017 among the Issuer, the Trustee and DBTCA, adding certain provisions to, and modifying certain provisions of the Base Subordinated Indenture, a fifth supplemental subordinated indenture, dated as of July 8, 2020 among the Issuer, the Trustee and DBTCA, modifying certain provisions of the Base Subordinated Indenture, and a seventh supplemental subordinated indenture, dated as of January 14, 2021 among the Issuer, the Trustee and DBTCA, modifying certain provisions of the Base Subordinated Indenture, (references to the “Base Subordinated Indenture” herein shall mean the Base Subordinated Indenture as amended by such third, fifth, and seventh supplemental subordinated indenture), and an eighth supplemental indenture, dated as of January 14, 2021 (the “Supplemental Subordinated Indenture” and, together with the Base Subordinated Indenture, the “Subordinated Indenture”), relating to the Notes. 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 the registered holders of any Note (the “Holders”) 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. |
| (2) | This Note is intended to qualify as own funds in the form of Tier 2 capital of the Issuer under the CRR. |
“CRR” means Regulation (EU) No 575/2013 of the European Parliament and the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (including any provisions of regulatory law supplementing this Regulation); to the extent that any provisions of the CRR are amended or replaced, the term CRR as used in this Note shall refer to such amended provisions or successor provisions.
A-16
§
2
Status
| (1) | This Note is intended to qualify as an own funds instrument of the Issuer within the meaning of Article 4 (1) no. 119 of the CRR (“Own Funds Instruments”) constituting own funds in the form of Tier 2 capital (Ergänzungskapital) within the meaning of Article 63 of the CRR. The obligations under this Note constitute unsecured and subordinated obligations of the Issuer, ranking pari passu among themselves and, subject to applicable law from time to time, pari passu with all other equally subordinated obligations of the Issuer under other instruments issued as, and qualifying from time to time as, own funds in the form of Tier 2 capital within the meaning of Article 63 of the CRR. In the event Resolution Measures (as defined below) are imposed on the Issuer or in the event of the dissolution, liquidation, insolvency (Insolvenzverfahren), composition or other proceedings for the avoidance of insolvency of, or against the Issuer, the obligations under this Note shall be fully subordinated to all obligations which do not qualify as Own Funds Instruments; this includes (i) all claims of unsubordinated creditors of the Issuer (including claims against the Issuer under its unsecured and unsubordinated non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including obligations of the Issuer under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) sentence 2 of the German Banking Act) (or any successor provision thereof)), (ii) the claims specified in Section 39(1) nos. 1 to 5 of the German Insolvency Code (Insolvenzordnung) (or any successor provision thereof) and (iii) contractually subordinated obligations of the Issuer within the meaning of Section 39(2) of the German Insolvency Code (or any successor provision thereof) which do not qualify as Own Funds Instruments at the time Resolution Measures are imposed on the Issuer or in the event of a dissolution, liquidation, insolvency, composition or other proceedings for the avoidance of insolvency of, or against, the Issuer (any such senior-ranking claims and obligations, the “Priority Claims”). In any such event, no amounts shall be payable in respect of the Securities until all Priority Claims have been satisfied in full. If the Notes no longer qualify as Tier 2 capital or other own funds within the meaning of the CRR, the obligations under this Note will, pursuant to Section 46f (7a) of the German Banking Act, rank senior to all obligations constituting Own Funds Instruments. This Note shall rank equally and pari passu with all other unsecured and equally subordinated debt (it being understood that no Priority Claims constitute such equally subordinated obligations) of the Issuer, except as otherwise provided by applicable law or the terms of any other indebtedness, and in particular, if such debt is expressed to rank junior to this Note, then this Note shall rank senior to such junior debt, but junior to the Priority Claims, except as otherwise provided by applicable law. |
| (2) | This Note (including any Coupons relating thereto) constitutes the direct and unconditional obligations of the Issuer and is subordinated to the Priority Claims. The obligations of the Issuer under this Note shall rank 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 Priority Claims of the Issuer and will rank junior to the claims of the holders of all Priority Claims of the Issuer in the event any Resolution Measures are imposed on the Issuer or in the event of bankruptcy or |
A-17
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 that from time to time constitutes own funds within the meaning of the CRR (it being understood that no Priority Claims constitute such subordinated obligations) of the Issuer, except as otherwise provided by applicable law or the terms of any such other indebtedness, and in particular, they 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, except as otherwise provided by applicable law. In the event any Resolution Measures are imposed on the Issuer or 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 Priority Claims have been satisfied in full.
For the avoidance of doubt, Senior Indebtedness (as defined below) shall constitute Priority Claims. This Note is subordinated to, and shall rank junior to, Senior Indebtedness. In the event any Resolution Measures are imposed on the Issuer or 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.
“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 this Note; (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.
| (3) | 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 subsequent agreement may limit the subordination pursuant to the subordination provisions set out above or shorten the term of this Note or any applicable notice period. No collateral or guarantee shall be provided at any time to secure claims of the Holders under this Note; |
A-18
any collateral or guarantee already provided or granted in the future in connection with other liabilities of the Issuer may not be used for claims under this Note.
§
3
Denomination; Registration, Transfer and Exchange
| (1) | 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 of $1,000. |
| (2) | 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 its 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. |
| (3) | 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. |
A-19
§
4
Payments
| (1) | Interest Payments; Day-count Convention. 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 the Fixed Rate Period of this Note will be computed and paid on the basis of a 360-day year of twelve 30-day months. Interest on this Note for the Floating Rate Period shall be computed and paid on the basis of the actual number of days in the relevant period divided by 360. |
| (2) | Payment Dates. 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. |
| (3) | Offices for Payments. 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. |
| (4) | Obligation of the Issuer Absolute and Unconditional. Subject to the imposition of a Resolution Measure, 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, 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. |
§
5
Resolution Measures
| (1) | By subscribing for or otherwise acquiring this Note, each Holder (including Beneficial Owners) shall be bound by and shall be deemed to consent to the imposition of any Resolution Measure (as defined below) by the competent resolution authority. |
“Beneficial Owner” shall mean (i) if this Note is in global form, the beneficial owners of this Note (and any interest therein) and (ii) if this Note is in definitive form, the Holders in whose name such Notes are registered in the security register maintained by the Registrar
A-20
on behalf of the Issuer and any beneficial owners holding an interest in such Notes in definitive form.
| (2) | Under the relevant resolution laws and regulations as applicable to the Issuer from time to time, this Note may be subject to the powers exercised by the competent resolution authority to: |
| (i) | write down, including write down to zero, the claims for payment of the principal amount, the interest amount or any other amount in respect of this Note; |
| (ii) | convert this Note into ordinary shares of (A) the Issuer, (B) any group entity (C) any bridge bank, or other instruments of ownership of such entities qualifying as Common Equity Tier 1 capital (and the issue to or conferral on the holders (including the beneficial owners) of such ordinary shares or instruments); and/or |
| (iii) | apply any other resolution measure, including, but not limited to, (A) any transfer of this Note to another entity, (B) the amendment, modification or variation of the terms and conditions of this Note or (C) the cancellation of this Note; |
(each, a “Resolution Measure”).
For the avoidance of doubt, any non-payment by the Issuer arising out of any such Resolution Measure will not constitute a failure by the Issuer under the terms of this Note or the Subordinated Indenture to make a payment of principal of, interest on, or other amounts owing under this Note.
| (3) | By its acquisition of this Note, each Holder (including each Beneficial Owner) shall be deemed irrevocably to have agreed: |
| (i) | to be bound by, to acknowledge and to accept any Resolution Measure and any amendment, modification or variation of the terms and conditions of the Notes to give effect to any Resolution Measure; |
| (ii) | that it will have no claim or other right against the Issuer arising out of any Resolution Measure; and |
| (iii) | that the imposition of any Resolution Measure will not constitute a default or an Event of Default (A) under the Notes, (B) under the Subordinated Indenture or (C) for the purpose of, but only to the extent permitted by, the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”) (including, without limitation, Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act). |
| (4) | The terms and conditions of this Note shall continue to apply in relation to the residual principal amount of, or outstanding amount payable in respect of, this Note, subject to any modification of the amount of interest payable, if any, to reflect the reduction of the |
A-21
principal amount, and any further modification of the terms that the competent resolution authority may decide in accordance with applicable laws and regulations relating to the resolution of banks, banking group companies, credit institutions and/or investment firms incorporated in the Federal Republic of Germany.
| (5) | No repayment of any then-current principal amount of this Note or payment of interest or any other amount thereon (to the extent of the portion thereof affected by the imposition of a Resolution Measure) shall become due and payable after the imposition of any Resolution Measure by the competent resolution authority, unless such repayment or payment would be permitted to be made by the Issuer under the laws and regulations of the Federal Republic of Germany then applicable to the Issuer. |
| (6) | By its acquisition of this Note, each Holder (including each Beneficial Owner) waives, to the fullest extent permitted by the Trust Indenture Act and applicable law, any and all claims against the Trustee and the Agents for, agrees not to initiate a suit against the Trustee or the Agents in respect of, and agrees that the Trustee and the Agents shall not be liable for, any action that the Trustee or any of the Agents takes, or abstains from taking, in either case in accordance with the imposition of a Resolution Measure by the competent resolution authority with respect to this Note. |
| (7) | Upon the imposition of a Resolution Measure by the competent resolution authority with respect to this Note, the Issuer shall provide a written notice directly to the Holders in accordance with Section 11.04 of the Base Subordinated Indenture as soon as practicable regarding such imposition of a Resolution Measure for purposes of notifying Holders of such occurrence. The Issuer shall also deliver a copy of such notice to the Trustee and the Agents for information purposes only, and the Trustee and the Agents shall be entitled to rely, and will not be liable for relying, on the competent resolution authority and the Resolution Measure identified in such notice. Any delay or failure by the Issuer to give notice shall not affect the validity or enforceability of any Resolution Measure nor the effects thereof on this Note. |
| (8) | If the Issuer has elected to redeem any Notes but the competent resolution authority has imposed a Resolution Measure with respect to this Note prior to the payment of the redemption amount for this Note, the relevant redemption notice, if any, shall be automatically rescinded and shall be of no force and effect, and no payment of the redemption amount will be due and payable. |
| (9) | Upon the imposition of any Resolution Measure by the competent resolution authority, the Trustee shall not be required to take any further directions from Holders of this Note under Section 5.09 of the Base Subordinated Indenture, which section authorizes Holders of a majority in aggregate principal amount of this Note at the time Outstanding to direct certain actions relating to this Note, and if any such direction was previously given under Section 5.09 of the Base Subordinated Indenture to the Trustee by the Holders, it shall automatically cease to be effective, be null and void and have no further effect. The Indenture shall impose no duties, obligations or liabilities upon the Trustee or the Agents whatsoever with respect to the imposition of any Resolution Measure by the competent resolution authority, and the Trustee and the Agents shall be fully protected in acting or |
A-22
refraining from acting in accordance with a Resolution Measure. Notwithstanding the foregoing, if, following completion of the imposition of a Resolution Measure by the competent resolution authority, this Note remains outstanding (for example, if the imposition of a Resolution Measure results in only a partial write-down of the principal of this Note), then the Trustee’s and the Agents’ duties under the Subordinated Indenture shall remain applicable with respect to this Note following such completion to the extent that the Issuer, the Trustee and the Agents agree pursuant to a supplemental indenture, unless the Issuer, the Trustee and the Agents agree that a supplemental indenture is not necessary.
| (10) | By the acquisition of this Note, each Holder (including each Beneficial Owner) shall be deemed irrevocably to have (i) consented to the imposition of any Resolution Measure as it may be imposed without any prior notice by the competent resolution authority of its decision to exercise such power with respect to this Note, (ii) authorized, directed and requested the Depositary and any direct participant in the Depositary or other intermediary through which it holds such Notes to take any and all necessary action, if required, to implement the imposition of any Resolution Measure with respect to this Note as it may be imposed, without any further action or direction on the part of such Holder of this Note, the Trustee or the Agents and (iii) acknowledged and accepted that the provisions contained in § 5 of this Note are exhaustive on the matters described in Section 2.03 of the Supplemental Subordinated Indenture and the corresponding provisions of this Note to the exclusion of any other agreements, arrangements or understandings between it and the Issuer relating to the terms and conditions of the Notes. |
| (11) | If the competent resolution authority imposes a Resolution Measure with respect to less than the total outstanding principal amount of this Note, unless the Trustee or the Agents are otherwise instructed by the Issuer or the competent resolution authority, any cancellation, write-off or conversion into equity made in respect of this Note pursuant to the Resolution Measure will be made on a substantially pro rata basis among this Note of any series. |
| (12) | Any obligations of the Holders to indemnify the Trustee and the Agents under this Supplemental Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or this Note. To the extent not otherwise precluded by a Resolution Measure, the Issuer’s obligations to indemnify the Trustee and the Agents in accordance with Sections 6.02 and 6.06 of the Base Subordinated Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or this Note. |
§
6
Payment of Additional Amounts
| (1) | All interest amounts payable in respect of this Note shall be made without deduction or withholding for or on account of any present or future taxes, duties or governmental charges of any nature whatsoever imposed or levied by way of deduction or withholding by or on behalf of the Tax Jurisdiction (“Withholding Taxes”) unless such deduction or withholding is required by law. |
A-23
“Tax Jurisdiction” means the Federal Republic of Germany or the United States, or any political subdivision or any authority thereof or therein having power to tax.
| (2) | In the event of such withholding or deduction on payments of interest (but not in respect of the payment of any principal in respect of the Notes), the Issuer shall, to the fullest extent permitted by law, pay such additional amounts (“Additional Amounts”) as will be necessary in order that the net amounts received by the Holders, after such withholding or deduction for or on account of any Withholding Taxes imposed upon or as a result of such payment by the Tax Jurisdiction, will equal the respective amounts which would otherwise have been receivable in the absence of such withholding or deduction; except that no such Additional Amounts shall be payable on account of any taxes, duties or governmental charges which: |
| (i) | are payable by any person acting as custodian bank or collecting agent on the Holder’s or the beneficial owner’s behalf, or otherwise in any manner which does not constitute a deduction or withholding by the Issuer from payments of interest made by the Issuer; or |
| (ii) | in the case of U.S. federal income taxes, are imposed on interest received by or on behalf of (1) a 10-percent shareholder (as defined in Section 871(h)(3)(B) of the U.S. Internal Revenue Code of 1986 (the “Code”) and the regulations that may be promulgated thereunder) of the Issuer, (2) a controlled foreign corporation that is related to the Issuer within the meaning of Section 864(d)(4) of the Code, or (3) a bank receiving interest described in Section 881(c)(3)(A) of the Code, to the extent such tax, assessment or other governmental charge would not have been imposed but for the Holder’s or beneficial owner’s status as described in clauses (1) through (3) of this paragraph; or |
| (iii) | would not be payable to the extent such deduction or withholding could 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; or |
| (iv) | are payable by reason of the Holder’s or the beneficial owner’s having, or having had, some personal or business connection with the Tax Jurisdiction and not merely by reason of the fact that payments in respect of this Note are, |
A-24
or for purposes of taxation are deemed to be, derived from sources in, or are secured in, the Tax Jurisdiction; or
| (v) | are presented for payment more than 30 days after the Relevant Date (as defined below) except to the extent that the Holder or the beneficial owner would have been entitled to Additional Amounts on presenting the same for payment on the last day of the period of 30 days assuming that day to have been a Business Day; or |
| (vi) | are deducted or withheld by the Paying Agent from a payment if the payment could have been made by another paying agent without such deduction or withholding; or |
| (vii) | would not be payable if this Note had been kept in safe custody with, and the payments had been collected by, a banking institution; or |
| (viii) | are payable by reason of a change in law or practice that becomes effective more than 30 days after the relevant payment of interest becomes due, or is duly provided for and notice thereof is given in accordance with Section 11.04 of the Base Subordinated Indenture, whichever occurs later. |
No Additional Amounts or any other amounts will be payable on account of any such withholding or deduction in respect of payments of principal.
“Relevant Date” means the date on which the payment first becomes due but, if the full amount payable has not been received by the Paying Agent on or before the due date, it means the date on which, the full amount having been so received.
| (3) | Moreover, all amounts payable in respect of this Note shall be made subject to compliance with Sections 1471 through 1474 of the Code, or any regulations or other official guidance promulgated thereunder, official interpretations thereof, or any applicable agreement entered into in connection therewith (including any agreement, law, regulation, or other official guidance implementing such agreement) (commonly referred to as the “Foreign Account Tax Compliance Act” or “FATCA”) and any applicable agreement described in Section 1471(b) of the Code. The Issuer shall have no obligation to pay Additional Amounts or otherwise indemnify a Holder or beneficial owner in connection with any such compliance with the Code. |
§
7
Event of Default
| (1) | 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. |
| (2) | 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 the imposition of a Resolution Measure in connection therewith will constitute an Event of Default with respect to this Note. If an |
A-25
Event of Default with respect to this Note occurs or is continuing, the Trustee or the Holder or Holders of not less than 33⅓% 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.
| (3) | Subject to the imposition of any Resolution Measure, 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 this Note (“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 Issuer (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. |
| (4) | If the Issuer does not 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 this Note or (ii) due to a Resolution Measure, the Issuer will be in default on its obligations under the Subordinated Indenture. In such case, the Trustee and the Holder of this Note may take action against the Issuer, but they may not accelerate the maturity of this Note. If the Issuer fails to make any payments of principal of, interest on or other amounts owing under this Note when due (i) pursuant to the subordination provisions of this Note or (ii) due to a Resolution Measure, the Trustee and the Holders will not be permitted to take such action. Moreover, the parties hereto acknowledge that in the event of a Resolution Measure, the Holders may permanently lose the right to the affected amounts and each Holder (including each Beneficial Owner) shall, by acquiring this Note, be bound, and will be deemed to have consented, as provided in § 5 of this Note. Furthermore, if the Issuer becomes subject to German insolvency proceedings, the Trustee and the 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. |
| (5) | 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. |
A-26
| (6) | 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 this Note and the Subordinated Indenture, and any Resolution Measure. |
§
8
Redemption
| (1) | Redemption on or prior to the Reset Date. Subject to the prior consent of the competent supervisory authority, the Issuer may redeem this Note, in whole but not in part, at its option on any Business Day during the period from (and including) October 14, 2030 to (and including) the Reset Date, upon the giving of a notice as described below. Redemption shall be made at 100% of the principal amount of the Notes (subject to the imposition of any Resolution Measure), together with accrued and unpaid interest to (but excluding) the Reset Date. Notice of redemption on the Reset Date shall be given by the Issuer to the Holders of this Note not less than 5 nor more than 60 days prior to the Reset Date, which date and the redemption price shall be specified in the notice. |
| (2) | Tax Redemption. Subject to the prior consent of the competent supervisory authority, the Issuer may redeem this Note in whole but not in part, at any time at the option of the Issuer, at 100% of their principal amount (subject to the imposition of any Resolution Measure) together with any accrued and unpaid interest to (but excluding) the date set for redemption if, as a result of any change in, or amendment to, the laws or regulations prevailing in the Tax Jurisdiction, which becomes effective on or after the Issue Date, or as a result of any application or official interpretation of such laws or regulations not generally known before that date, Withholding Taxes are or there is a substantial probability that they will be leviable on payments of interest in respect of this Note, and the Issuer would be obligated to pay Additional Amounts with respect to such Withholding Taxes, as described in Section 3.01 of the Supplemental Subordinated Indenture, provided that the conditions in Article 78(4)(b) of the CRR are met, pursuant to which the competent supervisory authority may permit any such redemption only if it is satisfied that the change in the applicable tax treatment is material and was not reasonably foreseeable at the Issue Date. The Issuer may exercise such redemption right on giving not less than 30 days’ notice to the Holder of this Note. No such notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Issuer would be obligated to withhold or pay Withholding Taxes in respect of payments of interest, were a payment in respect of this Note then made. Notice to Holders shall be given in accordance with Section 12.02 of the Base Subordinated Indenture. |
| (3) | Before any notice of tax redemption pursuant to Section 4.04(a) of the Supplemental Subordinated Indenture is given to the Trustee or the Holder 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 |
A-27
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. Such notice, once given to the Trustee, shall be irrevocable.
| (4) | Redemption for Regulatory Reasons. Subject to the prior consent of the competent supervisory authority, the Issuer may redeem this Note in whole but not in part, at any time at the option of the Issuer, at 100% of their principal amount (subject to the imposition of any Resolution Measure) together with any accrued and unpaid interest to (but excluding) the date set for redemption if there is a change in the regulatory classification of this Note that would be likely to result in (i) its exclusion in full or in part from the Issuer’s own funds under the CRR or any successor legislation, other than for reasons of an amortization in accordance with Article 64 (2) of the CRR, or as a consequence of a write down or conversion, as the case may be, or (ii) their reclassification as a lower quality of the Issuer’s own funds than as of the Issue Date, provided that the conditions in Article 78(4)(a) of the CRR are met, pursuant to which the competent supervisory authority may permit any such redemption only if it considers the change in the regulatory classification to be sufficiently certain and is satisfied that the regulatory reclassification of this Note was not reasonably foreseeable at the Issue Date. Notice of such redemption shall be given to the Holder of this Note upon not less than 30 and not more than 60 days prior to the date of redemption. Any such notice shall be given in accordance with Section 12.02 of the Base Subordinated Indenture only after having received the consent of the competent supervisory authority. Subject to § 5, such notice shall be irrevocable and shall state the date set for redemption and the reason for redemption. |
| (5) | Interest Accrual to Cease Upon Redemption. If the Issuer elects to redeem this Note, it shall cease to accrue interest from the date set for such redemption by or pursuant to the Supplemental Subordinated Indenture, unless the Issuer fails to pay the applicable redemption price of this Note on the date set for redemption. |
| (6) | Repurchase. Subject to Section 4.08 of the Supplemental Subordinated Indenture, the Issuer may purchase Notes in the open market or otherwise and at any price with the prior consent of the competent supervisory authority. Notes purchased by the Issuer may, at its option, be held, resold or surrendered to the Agents for cancellation. |
| (7) | Prior Consent for Redemption or Repurchase. Any redemption or repurchase of this Note prior to its scheduled maturity shall require the prior consent of the competent supervisory authority and any redemption shall not occur before five years after the date of issuance, except where the conditions set out in Article 78(4) of the CRR are met. If this Note redeemed or repurchased by the Issuer otherwise than in the circumstances described in Article 4 of the Supplemental Subordinated Indenture, then the amounts redeemed or paid must be returned to the Issuer irrespective of any agreement to the contrary unless the competent supervisory authority has given its consent to such early redemption or repurchase. |
A-28
| (8) | No Sinking Fund; No Redemption at Option of Holder. 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. |
§
9
Waiver of Right to Set-Off
By accepting this 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 obligations of the Issuer under or in respect of this Note and any liability owed by a Holder) that they might otherwise have against the Issuer, whether before or during the Issuer’s winding up or administration, and no Holder may set off its claims arising under this Note against any of claims of the Issuer.
§
10
Amendments
| (1) | Amendments Without Holder Consent. Subject to the prior consent of the competent supervisory authority, if required under the CRR or other applicable laws and regulations for the recognition of this Note as Tier 2 capital, 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 Holder of this Note. Notwithstanding the foregoing, any amendment made solely to conform the provisions of the Supplemental Subordinated Indenture to the description of this Note contained in the Issuer’s prospectus supplement dated January 14, 2021 will not be deemed to adversely affect the interests of the Holders of this Note. |
| (2) | Amendments Requiring Majority Holder Consent. The provisions of the Subordinated Indenture permit the Issuer and the Trustee, subject to the prior consent of the competent supervisory authority, if required under the CRR or other applicable laws and regulations for the recognition of this Note as Tier 2 capital, and 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 any amount payable on redemption hereof, (v) make the principal hereof, 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 |
A-29
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.
§
11
Miscellaneous
| (1) | Replacement of Note. 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. |
| (2) | Unclaimed Moneys. 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 Holder 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. |
| (3) | Incorporators, Shareholders, Offers and Directors Exempt from Individual Liability. 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 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. |
A-30
§
12
Governing Law
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 subordination 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.
§
13
Definitions
As used herein:
(a) the term “Business Day” means a day on which (i) the Trans-European Automatic Real-time Gross settlement Express Transfer system (TARGET2) is open for business and (ii) 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.
(b) the term “Notices” refers to notices to the Holders of this Note at each Holder’s address as that address appears in the register for this Note 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.
A-31
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-32
EXHIBIT 5.8
| New
York Northern California Washington DC São Paulo London |
Paris Madrid Hong Kong Beijing Tokyo |
||||
 | |||||
Davis Polk & Wardwell LLP 450 Lexington Avenue
|
212 450 4000 tel 212 450 5800 fax
|
||||
| March 1, 2021 |
Deutsche Bank AG
Taunusanlage 12
60325 Frankfurt am Main
Germany
Ladies and Gentlemen:
Deutsche Bank Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany (the “Bank”), has filed with the Securities and Exchange Commission (the “Commission”) a Registration Statement on Form F-3 on July 30, 2018 (the “Registration Statement”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), the Bank’s senior debt funding notes (the “Notes”), to be issued from time to time pursuant to the Senior Debt Funding Indenture, dated as of July 30, 2018 (as supplemented by the First Supplemental Senior Debt Funding Indenture dated as of March 1, 2021, the “Indenture”), among the Bank, Delaware Trust Company, as trustee (the “Trustee”), and Deutsche Bank Trust Company Americas, as paying agent, authenticating agent, issuing agent and registrar.
We have been appointed by you as your special United States products counsel, and we have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
In rendering the opinions expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all documents filed as exhibits to the Registration Statement that have not been executed will conform to the forms thereof, (iv) all signatures on all documents that we reviewed are genuine, (v) all natural persons executing documents had and have the legal capacity to do so, (vi) all statements in certificates of public officials and officers of the Bank that we reviewed were and are accurate and (vii) all representations made by the Bank as to matters of fact in the documents that we reviewed were and are accurate.
| Deutsche Bank AG | 2 | March 1, 2021 |
Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, we advise you that, in our opinion, when the specific terms of a particular series of Notes have been duly authorized and established in accordance with the Indenture and such Notes have been duly authorized, executed, authenticated, issued and delivered in accordance with the Indenture, and the applicable underwriting or other distribution agreement against payment therefor, such Notes will constitute valid and binding obligations of the Bank, enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith) and possible judicial or regulatory actions or applications giving effect to governmental actions or foreign laws affecting creditors’ rights, provided that we express no opinion as to (i) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (ii) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of the stated principal amount upon acceleration of the Notes to the extent determined to constitute unearned interest.
We express no opinion relating to any provision of the Notes relating to their ranking and their status under Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) to the extent it purports to be governed by the laws of the Federal Republic of Germany, including, in relation to such provisions, any determination of whether a Resolution Measure (as defined in the Notes) has been imposed on the Bank.
In connection with the opinion expressed above, we have assumed that at or prior to the time of the delivery of any Notes, (i) pursuant to the authority granted by the Bank’s Management Board, duly authorized officers of the Bank shall have established the terms of the Notes and duly authorized the issuance, execution, sale and delivery of the Notes, in each case as a matter of German law, and such authorization shall not have been modified or rescinded; (ii) the Bank is, and will remain, validly existing as a stock corporation in good standing under the laws of the Federal Republic of Germany; (iii) the effectiveness of the Registration Statement shall not have been terminated or rescinded; (iv) the Indenture and the Notes have been duly authorized, executed, authenticated (if applicable) and delivered by, and are each valid, binding and enforceable agreements of, each party thereto (other than as expressly covered above in respect of the Bank); (v) the Notes will be executed in substantially the form reviewed by us, (vi) the execution and delivery by each such party to each document to which it is a party, and the performance by each such party of all of its obligations under each document to which it is a party (x) do not contravene, or constitute a default under, the articles or certificate of incorporation or bylaws or other constitutive documents of such party, (y) require no action by or in respect of, or filing with, any governmental body, agency or official and (z) do not and will not contravene, or constitute a default under, any provision of applicable law or public policy or regulation (other than any such law or regulation of the State of New York), or any agreement, judgment, injunction, order, decree or other instrument binding on any such party; and (vii) there shall not have occurred any change in law affecting the validity or enforceability of such Notes. We have also assumed that none of the terms of any Note to be established subsequent to the date hereof, nor the issuance and delivery of such Note, nor the compliance by the Bank with the terms of such Note will violate any applicable law or public policy or will result in a violation of any provision of any instrument or agreement then binding upon the Bank, or any restriction imposed by any court or other governmental body, agency or official having jurisdiction over the Bank.
| Deutsche Bank AG | 3 | March 1, 2021 |
In connection with our opinion above, we note that, as of the date of this opinion, a judgment for money in an action based on Notes payable in foreign currencies in a federal or state court in the United States ordinarily would be enforced in the United States only in United States dollars. The date used to determine the rate of conversion of the foreign currency in which a particular Note is payable into United States dollars will depend upon various factors, including which court renders the judgment. However, if a judgment for money in an action based on the Notes were entered by a New York court, such court would enter the judgment in the foreign currency. In addition, we express no opinion as to any provision in the Indenture that (i) subjects the Bank to any claim for deficiency resulting from a judgment being rendered in a currency other than the currency called for in the Indenture, or (ii) purports to constitute a waiver by the Bank of any right to pay any amount under the Indenture in a currency other than that in which such amount is expressed to be payable.
We express no opinion as to provisions in the Indenture which purport to constitute waivers of objections to venue, or claims that a particular jurisdiction is an inconvenient forum.
We are members of the Bar of the State of New York, and the foregoing opinion is limited to the laws of the State of New York. Insofar as the foregoing opinion and the opinions expressed in the paragraphs quoted below involve matters governed by German law, we have relied, without independent inquiry or investigation, on the opinion of Group Legal Services of Deutsche Bank AG, dated March 1, 2021, attached as Exhibit A hereto and to be filed as an exhibit to the Current Report referred to in the subsequent paragraph.
We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 6-K dated as of March 1, 2021 to be filed by the Bank with the Commission and its incorporation by reference into the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
In addition, if a pricing supplement relating to the offer and sale of any particular Note or Notes is prepared and filed by the Bank with the Commission on this date or a future date and the pricing supplement contains a reference to us and our opinion substantially in the form set forth below, this consent shall apply to the reference to us and our opinion in substantially such form:
“In the opinion of Davis Polk & Wardwell LLP, as special United States products counsel to the Bank, when the notes offered by this pricing supplement have been executed and issued by the Bank and authenticated by the authenticating agent, acting on behalf of the trustee pursuant to the Indenture, and delivered against payment as contemplated herein, such notes will be valid and binding obligations of the Bank, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith) and possible judicial or regulatory actions or applications giving effect to governmental actions or foreign laws affecting creditors’ rights, provided that such counsel expresses no opinion as to [(i)] the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above [and (ii) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of the stated principal amount upon acceleration of the notes to the extent determined
| Deutsche Bank AG | 4 | March 1, 2021 |
to constitute unearned interest.] This opinion is given as of the date hereof and is limited to the laws of the State of New York. Insofar as this opinion involves matters governed by German law, Davis Polk & Wardwell LLP has relied, without independent investigation, on the opinion of Group Legal Services of Deutsche Bank AG, dated March 1, 2021, filed as an exhibit to the opinion of Davis Polk & Wardwell LLP, and this opinion is subject to the same assumptions, qualifications and limitations with respect to such matters as are contained in such opinion of Group Legal Services of Deutsche Bank AG. In addition, this opinion is subject to customary assumptions about the trustee’s authorization, execution and delivery of the Indenture and the authentication of the notes by the authenticating agent and the validity, binding nature and enforceability of the Indenture with respect to the trustee, all as stated in the opinion of Davis Polk & Wardwell LLP dated March 1, 2021, which has been filed by the Bank as an exhibit to a Current Report on Form 6-K dated as of March 1, 2021. [This opinion is also subject to the discussion, as stated in such opinion, of the enforcement of notes denominated in a foreign currency.]”
|
Very truly yours,
/s/ Davis Polk & Wardwell LLP |
EXHIBIT A
Deutsche Bank
Deutsche Bank Aktiengesellschaft Taunusanlage 12 60325 Frankfurt am Main Germany |
Deutsche Bank AG Legal Regulatory Taunusanlage 12 60325 Frankfurt am Main |
| March 1, 2021 |
Deutsche Bank AG Senior Debt Funding Notes
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 proposed issuance, offering and sale by the Bank from time to time of its senior debt funding notes (the “Notes”), to be issued from time to time under the Senior Debt Funding Indenture, dated as of July 30, 2018 (as supplemented by the First Supplemental Senior Debt Funding Indenture dated as of March 1, 2021, the “Indenture”), among the Bank, as issuer, Delaware Trust Company, as trustee (the “Trustee”), and Deutsche Bank Trust Company Americas, as paying agent, authenticating agent, issuing agent and registrar, pursuant to a Registration Statement on Form F-3 (No. 333-226421) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on July 30, 2018 and declared effective by the Commission on August 20, 2018 (the “Registration Statement”), registering the offer and sale of the Notes.
The Indenture and the Notes are referred to herein as the “Transaction Documents.”
This opinion is confined to and given on the basis of German law as it exists at the date hereof. We have made no investigation of the laws of New York or of any other jurisdiction as a basis for this opinion and do not express or imply any opinion thereon. We have assumed that there is nothing in such laws which affect this opinion.
For the purpose of this opinion we have examined the following documents:
| (a) | the Registration Statement; |
| (b) | the Articles of Association (Satzung) of the Bank as currently in force; |
| (c) | a scanned copy of the executed Indenture; |
| (d) | the form of fixed rate Notes and the form of floating rate Notes; |
| (e) | a scanned copy of the power of attorney issued on behalf of the Bank by Christian Sewing and James von Moltke, members of the Management Board (Vorstand) of the Bank on July 17, 2018 (the “Power of Attorney”); and |
| (f) | 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:
2
| (i) | the Transaction Documents are within the capacity and power of, and have been validly authorized, executed and delivered by, the parties thereto other than the Bank and that there has been no breach of any of the terms thereof; |
| (ii) | the Transaction Documents 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 authorization, execution and delivery of any such agreement or instrument by the Bank; |
| (iii) | the Notes will have been offered and sold as contemplated by the Registration Statement; |
| (iv) | 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; and |
| (v) | the Indenture and the Power of Attorney have not subsequently been amended, supplemented or terminated. |
Based upon the foregoing we are of the opinion that:
| (1) | the Bank is duly organized and validly existing as a stock corporation (Aktiengesellschaft) under the laws of the Federal Republic of Germany and has the corporate power to, and has taken all necessary corporate action to, execute, deliver and file the Registration Statement; |
| (2) | the Bank has corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations thereunder; |
| (3) | the execution and delivery of the Transaction Documents have been duly authorized by all necessary corporate action of the Bank; |
| (4) | the Indenture has been validly executed on behalf of the Bank; |
| (5) | the Indenture constitutes a valid and binding agreement of the Bank, which, with respect to Notes incurred through a branch office of the Bank, is to be performed through such branch office; |
| (6) | the forms of Notes have been duly authorized and established by the Bank; |
| (7) | the terms of a particular issuance of Notes will be, when established by an Issuer Order executed by two persons named as attorneys-in-fact of the Bank in the Power of Attorney, duly authorized by the Bank; |
| (8) | when Notes of a particular issuance have been executed by two persons named as attorneys-in-fact of the Bank in the Power of Attorney, they will have been validly executed on behalf of the Bank; |
| (9) | when the terms of the Notes and of their issuance and sale have been duly established in conformity with the Indenture so as not to violate New York law or German law and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank, and the Notes have been duly executed and delivered by the Bank and authenticated in accordance with the Indenture and issued |
3
and sold as contemplated by the Registration Statement, the Notes will constitute valid and binding obligations of the Bank, which, if incurred through a branch office of the Bank, are to be performed through such branch office; and
| (10) | the courts in Germany (assuming they accept jurisdiction) would observe and give effect to the choice of the laws of New York as governing the Indenture and the Notes. |
This opinion is subject to the following qualifications:
| (A) | Enforcement of the Transaction Documents 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) | Enforcement of any agreement, instrument or document may be limited by any resolution measures exercised by the competent resolution authority under the relevant resolution laws and regulations applicable to the Bank; the resolution authority may convert to equity or reduce the principal amount of liabilities, transfer assets, rights and liabilities and take other resolution measures which relate to or affect the rights of creditors. |
| (C) | Enforcement of rights may be limited by statutes of limitation or lapse of time. |
| (D) | 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. |
| (E) | Any judicial proceedings in Germany enforcing rights will be subject to the rules of civil procedure as applied by the courts in Germany, which inter alia and without limitation, might require the translation of foreign language documents into the German language. |
| (F) | We do not express an opinion as to any rights and obligations the Bank may have or appears to have against itself. |
We are furnishing this opinion solely for your benefit, except that Davis Polk & Wardwell LLP 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.
This opinion shall be governed by and construed in accordance with the laws of Germany.
Very truly yours,
| /s/ Mathias Otto | /s/ Patricia Vornhagen |
|
Dr. Mathias Otto General Counsel of Infrastructure and Regulatory Advice |
Patricia Vornhagen Senior Counsel of Infrastructure of Deutsche Bank AG |