Deutsche Bank Aktiengesellschaft 6-K, filed Feb 14, 2020
Deutsche Bank Aktiengesellschaft (DB)
About this 6-K
Deutsche Bank Aktiengesellschaft filed this 6-K on February 14, 2020.
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 February 2020
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 1.9: Purchase Agreement relating to $1,250,000,000 Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 of Deutsche Bank Aktiengesellschaft, dated February 14, 2020, among Deutsche Bank Aktiengesellschaft, Deutsche Bank Securities Inc., as lead underwriter, and the other managers named therein.
Exhibit 4.9(g): Fourth Supplemental Capital Securities Indenture, dated as of February 14, 2020, among Deutsche Bank AG, as Issuer, The Bank of New York Mellon, London Branch, as Trustee, and Deutsche Bank Trust Company Americas, as Paying Agent, Calculation Agent, Transfer Agent and Registrar and Authenticating Agent.
Exhibit 4.9(h): Fifth Supplemental Capital Securities Indenture, dated as of February 14, 2020, among Deutsche Bank AG, as Issuer, The Bank of New York Mellon, London Branch, as Trustee, and Deutsche Bank Trust Company Americas, as Paying Agent, Calculation Agent, Transfer Agent and Registrar and Authenticating Agent.
Exhibit 4.9(i): Form of Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 of Deutsche Bank Aktiengesellschaft (included in Exhibit 4.9(h)).
Exhibit 5.4: Opinion of Cleary Gottlieb Steen & Hamilton LLP.
Exhibit 5.5: Opinion of Group Legal Services of Deutsche Bank Aktiengesellschaft.
Forward-looking statements contain risks
This report contains forward-looking statements. Forward-looking statements are statements that are not historical facts; they include statements about our beliefs and expectations. Any statement in this report that states our intentions, beliefs, expectations or predictions (and the assumptions underlying them) is a forward-looking statement. These statements are based on plans, estimates and projections as they are currently available to the management of Deutsche Bank. Forward-looking statements therefore speak only as of the date they are made, and we undertake no obligation to update publicly any of them in light of new information or future events.
By their very nature, forward-looking statements involve risks and uncertainties. A number of important factors could therefore cause actual results to differ materially from those contained in any forward-looking statement. Such factors include the conditions in the financial markets in Germany, in Europe, in the United States and elsewhere from which we derive a substantial portion of our trading revenues, potential defaults of borrowers or trading counterparties, the implementation of our strategic initiatives, the reliability of our risk management policies, procedures and methods, and other risks referenced in our filings with the U.S. Securities and Exchange Commission. Such factors are described in detail in our
2018 Annual Report on Form 20-F dated March 22, 2019 filed with the SEC, on pages 11 through 43 under the heading “Risk Factors.” Copies of this document are readily available upon request or can be downloaded from www.deutsche-bank.com/ir.
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: February 14, 2020
Deutsche Bank Aktiengesellschaft
| By: | /s/ Jonathan Blake |
| Name: Jonathan Blake | ||
| Title: Managing Director | ||
| By: | /s/ Thomas A. Rueckert | |
| Name: Thomas A. Rueckert | ||
| Title: Vice President | ||
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Exhibit 1.9
EXECUTION VERSION
DEUTSCHE BANK AKTIENGESELLSCHAFT
$ 1,250,000,000 Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 (callable (i) on any business day commencing on (and including) October 30, 2025 and ending on (and including) April 30, 2026 and (ii) on April 30 of each year thereafter)
PURCHASE AGREEMENT
Dated: February 11, 2020
DEUTSCHE BANK AKTIENGESELLSCHAFT
$ 1,250,000,000 Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 (callable (i) on any business day commencing on (and including) October 30, 2025 and ending on (and including) April 30, 2026 and (ii) on April 30 of each year thereafter)
PURCHASE AGREEMENT
February 11, 2020
Deutsche Bank Securities Inc.
60 Wall Street
New York, NY 10005
United States of America
for itself and in its capacity as Representative of the several Underwriters (each as defined below)
Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
United States of America
in its capacity as Qualified Independent Underwriter (as defined below)
Ladies and Gentlemen:
Deutsche Bank Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under the laws of Germany and registered under docket number HRB 30,000 with the commercial register of the Local Court in Frankfurt am Main (the “Issuer”), confirms its agreement with each of Deutsche Bank Securities Inc. (the “Lead Underwriter”), Citigroup Global Markets Inc., as Qualified Independent Underwriter (as defined below), and each of the other several underwriters named in Schedule A hereto (collectively, the “Underwriters”, which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom the Lead Underwriter is acting as representative (in such capacity, the
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“Representative”), with respect to the issue and sale by the Issuer and the purchase by the Underwriters, acting severally and not jointly, of $1,250,000,000 aggregate principal amount of the Issuer’s Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 (callable (i) on any business day commencing on (and including) October 30, 2025 and ending on (and including) April 30, 2026 and (ii) on April 30 of each year thereafter)(the “Notes”).
The Notes are to be issued pursuant to the provisions of a capital securities indenture dated November 6, 2014 (the “Base Indenture”), as supplemented by the second supplemental capital securities indenture dated July 25, 2019 (the “Second Supplemental Indenture”), the fourth supplemental capital securities indenture to be entered into on or around February 14, 2020 (the “Fourth Supplemental Indenture”) and the fifth supplemental capital securities indenture to be entered into on or around February 14, 2020 (the “Fifth Supplemental Indenture”), each among the Issuer, as issuer, The Bank of New York Mellon, as trustee (the “Trustee”), and Deutsche Bank Trust Company Americas (“DBTCA”), as paying agent, calculation agent, transfer agent and registrar and authenticating agent. The Base Indenture, as supplemented by the Second Supplemental Indenture, the Fourth Supplemental Indenture and the Fifth Supplemental indenture is hereinafter referred to as the “Indenture”. The terms of the Notes include those stated in the Indenture and those terms made part of the Indenture by reference to the U.S. Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
As further described in the Prospectus (as defined below), the Notes (i) are intended to qualify as Additional Tier 1 capital (zusätzliches Kernkapital), as defined in and provided for in the bank regulatory capital provisions referred to in the Prospectus (as defined below), for an indefinite period of time and, as such, (ii) have no fixed maturity or redemption date, (iii) contain features that may require the Issuer and will permit the Issuer in its sole and absolute discretion at all times and for any reason to cancel any payment of interest, (iv) may be subject to a write-down of their principal amount under defined circumstances, and none of these events will constitute a default or an event of default under the Notes or permit any acceleration of the repayment of any principal on the Notes, and (v) have additional features that differentiate them from subordinated debt not intended to qualify as Additional Tier 1 capital.
The Issuer understands that the Underwriters propose to make a public offering of the Notes as soon as the Representative deems advisable after this Agreement has been executed and delivered, provided that the Indenture has been qualified under the Trust Indenture Act. The Issuer has filed on July 30, 2018 with the U.S. Securities and Exchange Commission (the “Commission”) a shelf registration statement on Form F-3 (No. 333-226421) under the Securities Act of 1933, as amended (the “Securities Act”), in respect of, among others, the Notes, which registration statement was subsequently amended by the Bank by pre-effective amendment no. 1, filed with the Commission on August 14, 2018, and pre-effective amendment no. 2, filed with the Commission on August 17, 2018, and which registration statement was declared effective by the Commission on August 20, 2018. Such registration statement contains a base prospectus relating to the capital securities dated August 20, 2018 in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement (the “Base Prospectus”), to be used in connection with the public offering and sale of the Notes. Any preliminary prospectus supplement to the Base Prospectus that describes the Notes and the offering thereof and is used prior to filing of the Prospectus is called, together with the Base Prospectus, a “preliminary prospectus”. The term “Prospectus” means the final prospectus
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supplement relating to the Notes, together with the Base Prospectus, that is filed pursuant to Rule 424(b) of the Rules and Regulations of the Commission (the “Securities Act Regulations”) after the date and time of execution and delivery of this Agreement, but does not include any “free writing prospectus” (as such term is used in Rule 405 of the Securities Act Regulations). Any preliminary prospectus and Prospectus shall be deemed to include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Securities Act; any reference to any amendment or supplement to any preliminary prospectus or Prospectus shall be deemed to include any documents filed after the date of such preliminary prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder (collectively, the “Exchange Act Regulations”), and incorporated by reference in such preliminary prospectus or Prospectus, as the case may be. Such registration statement, at any given time, including the amendments thereto to such time, the exhibits and any schedules thereto at such time, the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Securities Act at such time and the documents otherwise deemed to be a part thereof or included therein by Securities Act Regulations, is herein called the “Registration Statement”. For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to refer to the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
All references in this Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in or otherwise deemed by Securities Act Regulations to be a part of or included in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be.
The Issuer hereby confirms its engagement of Citigroup Global Markets Inc., and Citigroup Global Markets Inc. hereby confirms its agreement with the Issuer, to render services as a “qualified independent underwriter” within the meaning of Rule 5121 of the Financial Industry Regulatory Authority, Inc. (“FINRA”) with respect to the offering and sale of the Notes. Citigroup Global Markets Inc., in its capacity as qualified independent underwriter, is referred to herein as the “Qualified Independent Underwriter.”
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Issuer. The Issuer represents and warrants to each Underwriter as of the date hereof (which corresponds to the Time of Sale referred to in Section 1(a)(i) hereof) and as of the Closing Time referred to in Section 2(b) hereof, as applicable (in each case, a “Representation Date”), and agrees with each Underwriter, as follows:
(i) Registration Statement. Prospectus and Disclosure at Time of Sale. The Registration Statement, as amended by the Bank by pre-effective amendment no. 1 thereto, filed with the Commission on August 14, 2018, and pre-effective amendment
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no. 2 thereto, filed with the Commission on August 17, 2018, was declared effective by the Commission on August 20, 2018; and as of the date hereof, no post-effective amendment thereto (whether effective or not effective) has been filed by the Bank with the Commission. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and is in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Issuer, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
At the respective times the Registration Statement and each amendment thereto became or becomes effective, at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the Securities Act Regulations and at the Closing Time, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act and the Securities Act Regulations and the Trust Indenture Act and the rules and regulations of the Commission under the Trust Indenture Act (the “Trust Indenture Act Regulations”), and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued and at the Closing Time, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Each preliminary prospectus (including the prospectus or prospectuses filed as part of the Registration Statement or any amendment thereto) complied when so filed in all material respects with the Securities Act Regulations, and the copy of each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. As of the Time of Sale (as defined below), the Issuer Free Writing Prospectus(es) (as defined below) issued at or prior to the Time of Sale and the Statutory Prospectus (as defined below), all considered together (collectively, the “General Disclosure Package”), did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
“Issuer Free Writing Prospectus” means the Final Term Sheet (as defined in Section 3(b)) specified in Schedule C hereto in the form filed by the Issuer with the Commission as an “issuer free writing prospectus,” as defined in Rule 433 of the Securities Act Regulations (“Rule 433”).
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“Statutory Prospectus” as of any time means the Base Prospectus relating to the capital securities, including any preliminary or other prospectus supplement deemed to be a part thereof, as amended or supplemented at that time.
“Time of Sale” means 6:15 p.m. (Eastern time) on February 11, 2020 or such other time as agreed by the Issuer and the Representative.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Notes or until any earlier date that the Issuer notified or notifies the Representative as described in Section 3(e), did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified. The representations and warranties in this subsection shall not apply to (i) any statements in or omissions from the Registration Statement, the Prospectus, any preliminary prospectus or any Issuer Free Writing Prospectus, or any amendments or supplements to any of such documents made in reliance upon and in conformity with written information furnished to the Issuer by any Underwriter through the Representative expressly for use therein or (ii) that part of the Registration Statement which constitutes the Statements of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee, of Delaware Trust Company (formerly, Law Debenture Trust Company of New York) and of Wilmington Trust, National Association, as trustees.
(ii) Incorporated Documents. The documents incorporated by reference in the Registration Statement and the Prospectus pursuant to Item 6 of Form F-3 under the Securities Act, at the time they were or hereafter are filed or submitted with the Commission prior to the end of the Closing Time, complied and will comply in all material respects with the requirements of the Exchange Act and the Exchange Act Regulations and, when read together with the other information in the Prospectus, (a) at the time the Registration Statement became effective, (b) at the earlier of the time the Prospectus was first used and the date and time of the first contract of sale of Notes in this offering and (c) at the Closing Time did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iii) Due Incorporation and Power to Conduct Business. The Issuer is a stock corporation (Aktiengesellschaft) duly incorporated and validly existing under the laws of Germany. The Issuer is duly qualified as a foreign corporation authorized to transact business and, where the concept is applicable, is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or, where the concept is applicable, to be in good standing, would not result in a material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Issuer and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”). Each of
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the Issuer and its Significant Subsidiaries (as defined below) has the power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus, and each Significant Subsidiary is a corporation duly incorporated and validly existing under the laws of its jurisdiction of incorporation. The Issuer has the power and authority to enter into and perform its obligations under the Transaction Documents (as defined below). As used herein, “Significant Subsidiaries” shall mean each of DB USA Corporation, Deutsche Bank Americas Holding Corporation, Deutsche Investment Management Americas Inc., DB U.S. Financial Markets Holding Corporation, Deutsche Bank Securities Inc., Deutsche Bank Trust Corporation, Deutsche Bank Trust Company Americas, Deutsche Bank Luxembourg S.A., Deutsche Bank Privat- und Firmenkundenbank AG, DB Beteiligungs-Holding GmbH, and DWS Group GmbH & Co. KGaA.
(iv) Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Issuer.
(v) Authorization of the Notes. The Notes have been duly authorized for issuance by the Issuer and, when authenticated and issued in the manner provided for in the Indenture and delivered against payment of the purchase price therefor as provided in this Agreement, will be validly issued and fully paid, and will be in the form contemplated by, and entitled to the benefits of, the Indenture. The issuance of the Notes is not subject to preemptive or other similar rights.
(vi) Description of the Notes and the Transaction Documents. The Notes and the Transaction Documents (as defined below) will conform in all material respects to the respective statements relating thereto contained in the Prospectus and will be in substantially the respective forms filed or incorporated by reference, as the case may be, as exhibits to the Registration Statement.
(vii) Absence of Defaults and Conflicts. The Issuer is not (A) in violation of its articles of association and other constituent documents or by-laws or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of its property or assets is subject (collectively, “Agreements and Instruments”), except for such violations or defaults that would not have a material adverse effect on the ability of the Issuer to perform its obligations under the Transaction Documents (as defined below). The execution, delivery and performance by the Issuer of this Agreement and the Indenture (collectively, the “Transaction Documents”) and the Notes and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Notes and the use of the proceeds from the sale of the Notes as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Issuer with its obligations under the Transaction Documents and the Notes have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any
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property or assets of the Issuer or any subsidiary of the Issuer pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of (A) the provisions of the constituent documents, charter or by-laws of the Issuer or any subsidiary of the Issuer or (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Issuer or any subsidiary of the Issuer or any of their assets, properties or operations (except, with respect to (B), for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Issuer or any subsidiary of the Issuer.
(viii) Absence of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Issuer, threatened, against or affecting the Issuer or any subsidiary of the Issuer, which is required to be disclosed in the Registration Statement (other than as disclosed therein), or, if not so disclosed, which might result in a Material Adverse Effect, or which might materially and adversely affect the consummation of the transactions contemplated in this Agreement or the performance by the Issuer of its obligations hereunder.
(ix) Accuracy of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so described and filed as required.
(x) Absence of Manipulation. Neither the Issuer nor any of its affiliates (with the exception of Deutsche Bank Securities Inc. as set forth in the Prospectus) have taken, nor will the Issuer or any of its affiliates (except for Deutsche Bank Securities Inc. in the manner and to the extent contemplated in this Agreement and the Prospectus) take, directly or indirectly, any action which is designed to or which has constituted or which would be expected to cause or result in stabilization or manipulation of the price of any security of the Issuer with the purpose of facilitating the sale or resale of the Notes.
(xi) Absence of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Issuer of its obligations hereunder, in connection with the offering, issuance or sale of the Notes hereunder or the consummation of the transactions contemplated by this Agreement or for the due execution, delivery or performance of the Transaction Documents by the Issuer, except such as have been already obtained or as may be required under the Securities Act or the Securities Act Regulations or state securities laws and except for the qualification of the Indenture under the Trust Indenture Act.
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(xii) Possession of Licenses and Permits. The Issuer and its Significant Subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse Effect; the Issuer and its Significant Subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect; and none of the Issuer and any of its Significant Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which revocation or modification, singly or in the aggregate, would result in a Material Adverse Effect.
(xiii) Investment Company Act. The Issuer is not, and upon the issuance and sale of the Notes as herein contemplated and the application of the net proceeds therefrom as described in the Prospectus will not be, required to register as, an “investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”).
(xiv) Passive Foreign Investment Company. The Issuer believes that it was not a “passive foreign investment company” within the meaning of Section 1297(a) of the U.S. Internal Revenue Code of 1986, as amended (a “PFIC”), with respect to its taxable year ended December 31, 2019, and it does not currently anticipate becoming a PFIC for its taxable year ending December 31, 2020 or for the foreseeable future.
(xv) Pending Proceedings and Examinations. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the Securities Act, and the Issuer is not the subject of a pending proceeding under Section 8A of the Securities Act in connection with the offering of the Notes.
(xvi) [Reserved]
(xvii) Financial Statements. The financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related supplemental financial information, schedules and notes, present fairly in all material respects the financial position of the Issuer and its consolidated subsidiaries on the basis stated in the Registration Statement at the dates indicated and the statement of operations, stockholders’ equity and cash flows of the Issuer and its consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with international financial reporting standards as issued by the International Accounting Standards Board and endorsed by the European Union (“IFRS”), applied on a consistent basis throughout the periods involved, except as disclosed therein.
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(xviii) Independent Accountants. The accountants who certified the financial statements and supporting schedules included in the Registration Statement are independent public accountants as required by the Securities Act and the Securities Act Regulations.
(xix) No Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, except as otherwise stated therein, there has been no Material Adverse Effect.
(xx) Accounting Controls and Disclosure Controls. Except as described in the Prospectus, the Issuer maintains a system of internal accounting controls with respect to the Issuer and its subsidiaries sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization, (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets, (C) access to assets is permitted only in accordance with management’s general or specific authorization, and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Prospectus, since the end of the Issuer’s most recent audited fiscal year, there has been (x) no material weakness in the Issuer’s internal control over financial reporting (whether or not remediated) and (y) no change in the Issuer’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Issuer’s internal control over financial reporting.
The Issuer employs disclosure controls and procedures with respect to its subsidiaries that are designed to ensure that information required to be disclosed by the Issuer in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Issuer’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
(xxi) Foreign Corrupt Practices Act. Neither the Issuer nor any of its subsidiaries nor, to the best knowledge of the Issuer, any director, officer, agent, employee or affiliate of the Issuer or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of (i) the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, (ii) the United Kingdom Bribery Act 2010 (the “Bribery Act”), including, without limitation, engaging in bribery or making other unlawful payments prohibited
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under the Bribery Act, or (iii) any other applicable anti-corruption law; and the Issuer, its subsidiaries and, to the best knowledge of the Issuer, its affiliates have conducted their businesses in compliance with the FCPA, the Bribery Act and all other applicable anti-corruption laws and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xxii) Sanctions. Neither the Issuer, nor any of its subsidiaries or, to the best knowledge of the Issuer, any director, officer or employee of the Issuer or any of its subsidiaries is an individual or entity (“Person”) that is the subject of any sanctions administered or enforced by the U.N. Security Council, the European Union, the United Kingdom, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), the U.S. Department of State or other relevant sanctions authority (collectively, “Sanctions”); nor is the Issuer or any of its subsidiaries located, organized or resident in a country or territory that is the subject of comprehensive Sanctions regimes (currently Crimea, Cuba, Iran, North Korea and Syria (“Sanctioned States”)). The Issuer will use the proceeds of the offering of the Notes, or lend, contribute or otherwise make available such proceeds to any person or entity only for the purposes as disclosed in the Prospectus, and the Issuer will not, directly or, to the Issuer’s best knowledge, indirectly, use the proceeds of the sale of the offering of the Notes to fund any activities of or business with any Person that, at the time of such funding, is the subject of Sanctions or is located, organized or resident in a Sanctioned State, except to the extent permissible for a person required to comply with Sanctions. For the avoidance of doubt, nothing in this paragraph shall be interpreted to require the Issuer or any of its subsidiaries to violate Section 7 of the German Foreign Trade Ordinance (Außenwirtschaftsverordnung) or a similar applicable anti-boycott statute.
(xxiii) Money Laundering Laws. (i) The Issuer and its subsidiaries have established procedures reasonably designed to ensure compliance in all material respects with the applicable money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any applicable governmental agency (collectively, the “Money Laundering Laws”), (ii) the Issuer and, to the Issuer’s best knowledge, any of its subsidiaries are, and have conducted their operations at all times, in compliance with the applicable Money Laundering Laws, including U.S. financial recordkeeping and reporting requirements and the U.S. money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any U.S. governmental agency, except where non-compliance would not constitute a Material Adverse Effect, and (iii) no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Issuer, threatened, except where such action, suit or proceeding would not constitute a Material Adverse Effect.
(b) Officer’s Certificates. Any certificate signed by the Issuer or any officer of the Issuer delivered to the Representative or to counsel for the Underwriters shall be deemed a representation and warranty by the Issuer to each Underwriter as to the matters covered thereby.
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SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Sale and Purchase of the Notes. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Issuer agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Issuer, at the price set forth in Schedule B, the aggregate amount of Notes set forth in Schedule A opposite the name of such Underwriter, plus any additional amount of Notes which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of, the Notes shall be made at the offices of Cleary Gottlieb Steen & Hamilton LLP, or at such other place as shall be agreed upon by the Representative and the Issuer, at 3:00 p.m. (Central European Time) on the third business day after the date hereof (unless postponed in accordance with the provisions of Section 10), or such other time not later than ten business days after such date as shall be agreed upon by the Representative and the Issuer (such time and date of payment and delivery being herein called the “Closing Time”).
Payment shall be made to the Issuer by wire transfer of immediately available funds to a bank account designated by the Issuer, against delivery to the Representative for the respective accounts of the Underwriters of certificates for the Notes to be purchased by them. Delivery of the Notes shall be made through the facilities of The Depository Trust Company. It is understood that each Underwriter has authorized the Representative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Notes which it has agreed to purchase. The Lead Underwriter, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Notes to be purchased by any Underwriter whose funds have not been received by the Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates for the Notes shall be in such denominations ($200,000 and integral multiples of $200,000 in excess thereof) and registered in such names as the Representative may request in writing at least one full business day before the Closing Time.
(d) Product Governance Rules. Solely for the purposes of the requirements of Article 9(8) of the MiFID Product Governance rules under EU Delegated Directive 2017/593 as implemented into the laws of the relevant member state (the “Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the Product Governance Rules:
(i) each of the Issuer and Nordea Bank ABP (each a “Manufacturer”) acknowledges that it understands the responsibilities conferred upon it under the Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Notes and the related information set out in the Prospectus and announcements in connection with the Notes; and
(ii) each of the Underwriters other than Nordea Bank ABP notes the application of the Product Governance Rules and acknowledges the target market and
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distribution channels identified as applying to the Notes by each Manufacturer and the related information set out in the Prospectus and announcements in connection with the Notes.
Prohibition of Sales to European Economic Area and United Kingdom Retail Investors. Each Underwriter severally and not jointly represents and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any securities to which this Agreement relates, to any retail investor in the European Economic Area or in the United Kingdom. For the purposes of this provision:
(a) the expression retail investor means a person who is one (or more) of the following:
(i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or
(ii) a customer within the meaning of Directive (EU) 2016/97 (the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or
(iii) not a qualified investor as defined in Regulation (EU) 2017/1129 (the “Prospectus Regulation”); and
(b) the expression an offer includes the communication in any form and by any means of sufficient information on the terms of the offer and the securities to be offered so as to enable an investor to decide to purchase or subscribe for the securities.
SECTION 3. Covenants of the Issuer. The Issuer covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests, Payment of Filing Fees. The Issuer, subject to Section 3(b), will comply with the requirements of Rule 430B and, during the period beginning at the Time of Sale and ending on the later of the Closing Time or such date as in the opinion of counsel for the Underwriters the Prospectus is no longer required by law to be delivered in connection with the sales by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the “Prospectus Delivery Period”), will notify the Representative immediately, and confirm the notice in writing (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the Notes shall become effective, or any supplement to the Prospectus or any amended Prospectus relating to the Notes shall have been filed, (ii) of the receipt of any comments from the Commission to the Registration Statement, and (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information (except those relating to the offering of securities other than the Notes). The Issuer, subject to Section 3(b), will notify the Representative immediately, and confirm the notice in writing (i) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any new registration statement relating to the Notes or of any order
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preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement (except those relating to the offering of securities other than the Notes) and (ii) if the Issuer becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Notes. The Issuer will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, will promptly file such prospectus. The Issuer will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. The Issuer shall pay the required Commission filing fees relating to the Notes within the time required by Rule 456(a) of the Securities Act Regulations and in accordance with Rule 457 of the Securities Act Regulations.
(b) Filing of Amendments and Exchange Act Documents, Preparation of Final Term Sheet. The Issuer will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Notes or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, in each case relating to the Notes, whether pursuant to the Securities Act, the Exchange Act or otherwise, to the extent any such document relates directly to the offering of the Notes, and the Issuer will furnish the Representative with copies (which may be in electronic form) of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representative or counsel for the Underwriters shall object. The Issuer has given the Representative notice of any filings made pursuant to the Exchange Act or Exchange Act Regulations within 48 hours prior to the Time of Sale; the Issuer will give the Representative notice of their intention to make any such filing from the Time of Sale to the Closing Time and will furnish the Representative with copies (which may be in electronic form) of any such documents that relate directly to the offering of the Notes a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably object. The Issuer will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Notes, in form and substance satisfactory to the Representative, and shall file such Final Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433 prior to the close of business two business days after the date hereof; provided that the Issuer shall furnish the Representative with copies (which may be in electronic form) of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representative or counsel to the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Issuer has furnished or will deliver to the Representative and counsel for the Underwriters, without charge, if requested, copies of the Registration Statement and of each amendment thereto relating to the Notes (including exhibits filed therewith or incorporated by reference therein) and copies of all consents and certificates of
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experts, and will also deliver to the Representative, without charge, a conformed copy of the Registration Statement and of each amendment thereto relating to the Notes (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Issuer has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Issuer hereby consents to the use of such copies for purposes permitted by the Securities Act. The Issuer will furnish to each Underwriter, without charge, during the Prospectus Delivery Period, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Issuer will comply with the Securities Act and the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations and the Trust Indenture Act and the Trust Indenture Act Regulations so as to permit the completion of the distribution of the Notes as contemplated in this Agreement and in the Prospectus. If at any time during the Prospectus Delivery Period any event shall occur or condition shall exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters or for the Issuer, to amend the Registration Statement or amend or supplement the Prospectus or the General Disclosure Package in order that the Prospectus or the General Disclosure Package will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of such counsel, at any such time to amend the Registration Statement or to file a new registration statement or amend or supplement the Prospectus or the General Disclosure Package in order to comply with the requirements of the Securities Act or the Securities Act Regulations, the Issuer will promptly prepare and file with the Commission, subject to Section 3(b), such amendment, supplement or new registration statement as may be necessary to correct such statement or omission or to comply with such requirements, the Issuer will use its best efforts to have such amendment or new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect to the Notes) and the Issuer will furnish to the Underwriters such number of copies of such amendment, supplement or new registration statement as the Underwriters may reasonably request. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Notes) or the Statutory Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Issuer will promptly notify the Lead Underwriter and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
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(f) Blue Sky Qualifications. The Issuer will use its best efforts, in cooperation with the Underwriters, to qualify the Notes for offering and sale under the applicable securities laws of such states and other jurisdictions as the Representative may designate and to maintain such qualifications in effect for a period of not less than one year from the date hereof, provided, however, that the Issuer shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction, in which it is not so qualified or so subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Issuer will also supply the Underwriters with such information as is necessary for the determination of the legality of the Notes for investment under the laws of such jurisdictions as the Representative may request.
(g) Rule 158. The Issuer will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to their securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.
(h) Use of Proceeds. The Issuer will use the net proceeds received by it from the sale of the Notes in the manner specified in the Prospectus under “Use of Proceeds”.
(i) Listing. The Issuer will use its best efforts to effect the listing of the Notes on the Official List of the Luxembourg Stock Exchange and the admission to trade the Notes on the Euro MTF market.
(j) Restriction on Sale of Securities. During a period of 30 days from the date of the Prospectus, neither the Issuer nor any subsidiary of the Issuer will, without the prior written consent of the Representative, directly or indirectly, issue, sell, offer or contract to sell, grant any option for the sale of, or otherwise transfer or dispose of, any Notes or any security convertible into or exchangeable for Notes.
(k) Reporting Requirements. The Issuer, during the Prospectus Delivery Period, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the Exchange Act Regulations.
(l) Issuer Free Writing Prospectuses. The Issuer represents and agrees that unless the Issuer obtains the prior consent of the Representative, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Issuer and the Representative, it has not made and will not make any offer relating to the Notes that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission, and the Issuer and each Underwriter represents and agrees that Schedule C hereto is a complete list of all free writing prospectuses for which such consent was received, provided, however, that prior to the preparation of the Final Term Sheet in accordance with Section 3(b), the Underwriters are authorized to use the information with respect to the final terms of the Notes in communications conveying information relating to the offering to investors. Any such free writing prospectus
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consented to by the Issuer and the Representative is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Issuer represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
SECTION 4. Payment of Expenses.
(a) Expenses. The Issuer will pay all expenses incident to the performance of their obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of this Agreement, any Agreement among Underwriters, the Transaction Documents and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Notes, (iii) the preparation, issuance and delivery of the certificates for the Notes to the Underwriters, (iv) the fees and disbursements of the Issuer’s counsel, accountants and other advisors, (v) the qualification of the Notes under securities laws in accordance with the provisions of Section 3(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of any Blue Sky Survey and any supplement thereto, (vi) the printing and delivery to the Underwriters of copies of each preliminary prospectus, any Permitted Free Writing Prospectus and of the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing by the Underwriters to investors, (vii) the preparation, printing and delivery to the Underwriters of copies of any Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee, (ix) the costs and expenses of the Issuer relating to investor presentations on any “road show” undertaken in connection with the marketing of the Notes, including without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel and lodging expenses of the representatives and officers of the Issuer and any such consultants, and the cost of aircraft and other transportation chartered in connection with the road show, (x) any fees payable in connection with the rating of the Notes, (xi) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review by the FINRA of the terms of the sale of the Notes, including the fees and expenses (including legal fees and expenses), if any, of Citigroup Global Markets Inc. acting as “qualified independent underwriter” within the meaning of FINRA Rule 5121, (xii) the fees and expenses incurred in connection with the listing of the Notes on the Official List of the Luxembourg Stock Exchange and admission to trading on the Euro MTF Market, and (xiii) any stamp, issuance or other transfer taxes imposed on the original issuance of the Notes by or on behalf of the Issuer, the purchase by the Underwriters of the Notes pursuant to this Agreement, and the sale and delivery of the Notes by the Underwriters to initial purchasers thereof.
(b) Withholding. Amounts payable by the Issuer hereunder will be made without withholding or deduction for or on account of any taxes, duties or governmental charges unless the Issuer is compelled by law to deduct or withhold such taxes, duties or charges. If the Issuer is compelled by law to deduct or withhold taxes, duties, or governmental charges, then the Issuer
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will pay such additional amounts as may be necessary in order that the net amounts received by the Underwriters is not less than the amount provided for herein, provided that no such additional amounts shall be payable: (i) to an Underwriter to the extent such Underwriter is subject to such taxes, duties or charges which would not have been imposed but for the existence of any present or former connection between such Underwriter and the jurisdiction imposing such taxes, duties or charges, otherwise than solely from the execution of this Agreement, the performance of its obligations (including any ancillary obligations) hereunder or the receipt of payments hereunder; or (ii) to the extent that the taxes, duties or charges would not have been imposed but for the failure of such Underwriter to comply with any certification, identification, or other reporting requirement requested by the Issuer if such compliance is required or imposed by law as a precondition to an exemption from, or reduction in, such tax, duty or charge.
(c) Termination of Agreement. If this Agreement is terminated by the Representative in accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the Issuer shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Issuer contained in Section 1 hereof or in certificates of any officer of the Issuer or the Trustee delivered pursuant to the provisions hereof, to the performance by the Issuer of its covenants and other obligations hereunder, and to the following further conditions.
(a) Effectiveness of Registration Statement, Filing of Prospectus, Payment of Filing Fee. The Registration Statement has become effective and at the Closing Time no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. The Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). The Issuer shall have paid the required Commission filing fees relating to the Notes within the time period required by Rule 456(a) of the Securities Act Regulations and in accordance with Rule 457 of the Securities Act Regulations.
(b) Opinion of Counsel for the Issuer. At the Closing Time, the Representative shall have received (i) the favorable opinion and disclosure letter, each dated as of the Closing Time, of Cleary Gottlieb Steen & Hamilton LLP, counsel for the Issuer, and (ii) the favorable opinion of Group Legal Services of the Issuer, internal counsel for the Issuer, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters, to the effect set forth in Exhibit A and Exhibit B hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At the Closing Time, the Representative shall have received the favorable opinion and disclosure letter, each dated as of the Closing Time, of Davis Polk & Wardwell London LLP, U.S. counsel for the Underwriters, together with
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signed or reproduced copies of such letter for each of the other Underwriters, in form and substance satisfactory to the Underwriters. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States, upon the opinions of counsel satisfactory to the Representative. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Issuer and the Issuer’s subsidiaries and the Trustee and certificates of public officials.
(d) Certificate of Trustee. At the Closing Time, the Representative shall have received a certificate, dated as of the Closing Time, of The Bank of New York Mellon, as Trustee, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such certificate for each of the other Underwriters, to the effect set forth in Exhibit C hereto.
(e) Certificate of Initial Paying Agent, Calculation Agent, Transfer Agent and Registrar and Authenticating Agent. At the Closing Time, the Representative shall have received a certificate, dated as of the Closing Time, of DBTCA, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such certificate for each of the other Underwriters, to the effect set forth in Exhibit D hereto.
(f) Officer’s Certificate. At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus or the General Disclosure Package, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Issuer and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Representative shall have received a certificate of an executive of each of the Issuer, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties in Section 1(a) hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Issuer has complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to their knowledge, contemplated by the Commission.
(g) Accountant’s Comfort Letter. At the Closing Time, the Representative shall have received from KPMG Aktiengesellschaft Wirtschaftsprüfungsgesellschaft a letter dated such date, in form and substance satisfactory to the Representative, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(h) CAO Certificate. At the Closing Time, the Representative shall have received from the Issuer a certificate, dated such date and executed by the Chief Accounting Officer of the Issuer, in form and substance satisfactory to the Representative, confirming certain financial and other information contained in the Registration Statement and the Prospectus.
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(i) Maintenance of Rating. At the Closing Time, the Notes shall be rated at least B1 by Moody’s Investors Service, Inc. and B+ by S&P Global Ratings Inc., and the Issuer shall have delivered to the Representative a letter dated as of or about the Closing Time, from each such rating agency, or other evidence satisfactory to the Representative, confirming that the Notes have such ratings, and since the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Issuer or any of the securities of the Issuer by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act, and no such organization shall have publicly announced that it has under surveillance or review its rating of any securities of the Issuer.
(j) Application for Listing. At the Closing Time, the Issuer will have made application to list the Notes on the Official List of the Luxembourg Stock Exchange and to admit the Notes to trade on the Euro MTF market.
(k) No Objection. FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) Additional Documents. At the Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Notes as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained, and all proceedings taken by the Issuer in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Representative and counsel for the Underwriters.
(m) Termination of Agreement. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the Issuer at any time at or prior to the Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Section 1, Section 6, Section 7 and Section 8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Issuer agrees to indemnify and hold harmless each Underwriter, its affiliates, as such term is defined in Rule 501(b) under the Securities Act (each, an “Affiliate”), and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto) or the Prospectus, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
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amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, provided that (subject to Section 6(e) below) any such settlement is effected with the written consent of the Issuer;
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Lead Underwriter), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above, provided, however, that (x) this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuer by any Underwriter through the Representative expressly for use in the Registration Statement (or any amendment thereto), Prospectus or any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) and (y) the foregoing indemnity agreement with respect to the preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Notes, or any person controlling such Underwriter where it shall have been determined by a court of competent jurisdiction by final judgment that (A) prior to the Time of Sale the Issuer shall have notified such Underwriter that the preliminary prospectus contains an untrue statement of material fact or omits to state therein a material fact required to be stated therein in order to make the statements therein not misleading, (B) such untrue statement or omission of a material fact was corrected in an amended or supplemented preliminary prospectus or, where permitted by law, an issuer free writing prospectus (as defined in Rule 433 under the Securities Act) and such corrected preliminary prospectus or issuer free writing prospectus was provided to such Underwriter far enough in advance of the Time of Sale so that such corrected preliminary prospectus or issuer free writing prospectus could have been delivered or otherwise conveyed to such person prior to the Time of Sale, (C) such corrected preliminary prospectus or issuer free writing prospectus (excluding any document then incorporated or deemed incorporated therein by reference) was not delivered or otherwise conveyed to such person at or prior to the Time of Sale, and (D) such loss, claim, damage or expense would not have occurred had the corrected preliminary prospectus or issuer free writing prospectus (excluding any document then incorporated or deemed incorporated therein by reference) been delivered or otherwise conveyed to such person as provided for in (C).
(b) Insofar as this indemnity agreement may permit indemnification for liabilities under the Securities Act of any person who is a partner of an Underwriter or who controls an
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Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and who, at the date of this Agreement, is a director or officer of the Issuer or controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, such indemnity agreement is subject to the undertaking of the Issuer in the Registration Statement under Part II, Item 10 (Undertakings).
(c) Indemnification of Issuer, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Issuer, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a)(i) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or any preliminary prospectus, any Permitted Issuer Free Writing Prospectus, Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuer by such Underwriter through the Representative expressly for use therein.
(d) Indemnification of Qualified Independent Underwriter. Without limitation of and in addition to its obligations under the other paragraphs of this Section 6, the Issuer agrees to indemnify and hold harmless the Qualified Independent Underwriter, its directors, officers, employees and agents and each person who controls the Qualified Independent Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject, insofar as such losses, claims, damages or liabilities (or action in respect thereof) arise out of or are based upon the Qualified Independent Underwriter’s acting as a “qualified independent underwriter” (within the meaning of FINRA Rule 5121) in connection with the offering contemplated by this Agreement, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Issuer will not be liable in any such case to the extent that any such loss, claim, damage or liability results from the gross negligence or willful misconduct of the Qualified Independent Underwriter. Section 6(c) shall apply equally to any action or proceeding brought against the Qualified Independent Underwriter or any such person in respect of which indemnity may be sought against the Issuer pursuant to the immediately preceding sentence, except that the Issuer shall be liable for the expenses of one separate counsel (in addition to any local counsel) for the Qualified Independent Underwriter and any such person, separate and in addition to counsel for the persons who may seek indemnification pursuant to the Section 6(a), in any such action or proceeding.
(e) Actions against Parties, Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties
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shall be selected by the Representative, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be selected by the Issuer. An indemnifying party may participate at its own expense in the defense of any such action, provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(f) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 45 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuer on the one hand and the Underwriters on the other hand from the offering of the Notes pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (ii) above but also the relative fault of the Issuer on the one hand and of the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations; provided in each case, however, that in no case shall the Qualified Independent Underwriter in its capacity as “qualified independent underwriter” (within the meaning of FINRA Rule 5121) be responsible for any amount in excess of the compensation received by the Qualified Independent Underwriter for acting in such capacity.
The relative benefits received by the Issuer on the one hand and the Underwriters on the other hand in connection with the offering of the Notes pursuant to this Agreement shall be
22
deemed to be in the same respective proportions as the total net proceeds from the offering of the Notes pursuant to this Agreement (before deducting expenses) received by the Issuer and the total underwriting discount received by the Underwriters, in each case as set forth on the cover of the Prospectus bear to the aggregate initial public offering price of the Notes as set forth on the cover of the Prospectus. The benefits received by the Qualified Independent Underwriter in its capacity as “qualified independent underwriter” (within the meaning of FINRA Rule 5121) shall be deemed to be equal to the compensation received by the Qualified Independent Underwriter for acting in such capacity.
The relative fault of the Issuer on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuer or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Issuer and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Notes underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each Underwriter’s Affiliates shall have the same rights to contribution as such Underwriter, and each director of the Issuer, each officer of the Issuer who signed the Registration Statement, and each person, if any, who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuer. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the principal amount of the Initial Underwritten Notes set forth opposite their respective names in Schedule A hereto and not joint.
23
SECTION 8. Representations, Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates of the Trustee, officers of the Issuer or any of the Issuer subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or its Affiliates, any person controlling any Underwriter, its officers or directors or any person controlling the Issuer, and (ii) delivery of and payment for the Notes.
SECTION 9. Termination of Agreement.
(a) Termination, General. The Representative may terminate this Agreement, by notice to the Issuer, at any time at or prior to the Closing Time (i) if there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Prospectus (exclusive of any supplement thereto) or the General Disclosure Package, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Issuer and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States, Germany or Luxembourg or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market the Notes or to enforce contracts for the sale of the Notes, or (iii) if trading in any securities of the Issuer has been suspended or materially limited by the Commission, the New York Stock Exchange, the Frankfurt Stock Exchange or the Luxembourg Stock Exchange (other than for technical reasons), or if trading generally on the New York Stock Exchange, the Frankfurt Stock Exchange or the Luxembourg Stock Exchange has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, FINRA or any other governmental authority, or (iv) a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe, or (v) if a banking moratorium has been declared by either U.S. federal, New York or German authorities, or (vi) if there has occurred a change or an official announcement by a competent authority of a forthcoming change in German taxation materially adversely affecting the Issuer or the transfer thereof or the imposition of exchange controls by the United States, Germany or Luxembourg.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Section 1, Section 6, Section 7 and Section 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time, to purchase the Notes which it or they are obligated to purchase under this Agreement (any such Underwriter, the “Defaulting Underwriter”), the Representative shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Notes failed to be purchased in such amounts as may be agreed upon and upon the
24
terms herein set forth; if, however, the Representative shall not have completed such arrangements within such 24-hour period, then:
(a) if the number of Notes failed to be purchased by one or more Defaulting Underwriters does not exceed 10% of the aggregate amount of the Notes to be purchased hereunder, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Notes failed to be purchased by one or more Defaulting Underwriters exceeds 10% of the aggregate amount of the Notes to be purchased hereunder, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any Defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement either the Representative or the Issuer shall have the right to postpone the Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Tax Disclosure. Notwithstanding any other provision of this Agreement, immediately upon commencement of discussions with respect to the transactions contemplated hereby, the Issuer (and each employee, representative or other agent of the Issuer) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to the Issuer relating to such tax treatment and tax structure. For purposes of the foregoing, the term “tax treatment” is the purported or claimed federal income tax treatment of the transactions contemplated hereby, and the term “tax structure” includes any fact that may be relevant to understanding the purported or claimed federal income tax treatment of the transactions contemplated hereby.
SECTION 12. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to the Representative at Deutsche Bank Securities Inc., 60 Wall Street, New York, New York 10005, United States of America, attention of Debt Capital Markets Syndicate Desk, with a copy to General Counsel, facsimile no. +1 (646) 374-1071; notices to the Qualified Independent Underwriter shall be directed to Citigroup Global Markets Inc., 390 Greenwich Street, New York, New York 10013, United States of America, attention of General Counsel, facsimile no. +1 (212) 816-7912; and notices to the Issuer shall be directed to Deutsche Bank Aktiengesellschaft at Taunusanlage 12, 60262 Frankfurt am Main, Germany, attention of Group Treasury, facsimile no. +49 69 910-35884.
SECTION 13. No Advisory or Fiduciary Relationship. The Issuer acknowledges and agrees that (a) the purchase and sale of the Notes pursuant to this Agreement, including the
25
determination of the public offering price of the Notes and any related discounts and commissions, is an arm’s-length commercial transaction between the Issuer, on the one hand, and the several Underwriters and the Qualified Independent Underwriter, on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction each Underwriter and the Qualified Independent Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Issuer, or its stockholders, creditors, employees or any other party, (c) no Underwriter or the Qualified Independent Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Issuer with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter or the Qualified Independent Underwriter has advised or is currently advising the Issuer on other matters) and no Underwriter or the Qualified Independent Underwriter has any obligation to the Issuer with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (d) the Underwriters and the Qualified Independent Underwriter and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Issuer, and (e) the Underwriters and the Qualified Independent Underwriter have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Issuer have consulted their own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate.
SECTION 14. Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Issuer and the several Underwriters and the Qualified Independent Underwriter, or any of them, with respect to the subject matter hereof.
SECTION 15. Parties. This Agreement shall each inure to the benefit of and be binding upon the Underwriters and the Issuer and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters and the Issuer and their respective successors and the controlling persons and officers and directors referred to in Section 6 and Section 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Issuer and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Notes from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. GOVERNING LAW. SUBMISSION TO JURISDICTION. WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EACH OF THE PARTIES HERETO IRREVOCABLY (i) AGREES THAT ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST THE ISSUER BROUGHT BY ANY UNDERWRITER OR BY ANY PERSON WHO CONTROLS ANY UNDERWRITER ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE INSTITUTED IN ANY FEDERAL COURT LOCATED IN THE STATE OF NEW YORK, (ii) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
26
HAVE TO THE LAYING OF VENUE OF ANY SUCH PROCEEDING AND (iii) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. THE ISSUER IRREVOCABLY WAIVES ANY IMMUNITY TO JURISDICTION TO WHICH IT MAY OTHERWISE BE ENTITLED (INCLUDING SOVEREIGN IMMUNITY, IMMUNITY TO PREJUDGMENT ATTACHMENT, POST-JUDGMENT ATTACHMENT AND EXECUTION) IN ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST IT ARISING OUT OF OR BASED ON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY THAT IS INSTITUTED IN ANY NEW YORK COURT OR IN ANY COMPETENT COURT IN GERMANY. THE ISSUER HAS APPOINTED DB USA CORPORATION, 60 WALL STREET, MAIL STOP NYC60-3701, NEW YORK, NEW YORK, 10005, ATTENTION OFFICE OF THE SECRETARY, AS ITS AUTHORIZED AGENT (THE “AUTHORIZED AGENT”) UPON WHOM PROCESS MAY BE SERVED IN ANY SUCH ACTION ARISING OUT OF OR BASED ON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY THAT MAY BE INSTITUTED IN ANY NEW YORK COURT BY ANY UNDERWRITER OR BY ANY PERSON WHO CONTROLS ANY UNDERWRITER, EXPRESSLY CONSENT TO THE JURISDICTION OF ANY SUCH COURT IN RESPECT OF ANY SUCH ACTION, AND WAIVE ANY OTHER REQUIREMENTS OF OR OBJECTIONS TO PERSONAL JURISDICTION WITH RESPECT THERETO. SUCH APPOINTMENT SHALL BE IRREVOCABLE. THE ISSUER REPRESENT AND WARRANT THAT THE AUTHORIZED AGENT HAS AGREED TO ACT AS SUCH AGENT FOR SERVICE OF PROCESS AND AGREES TO TAKE ANY AND ALL ACTION, INCLUDING THE FILING OF ANY AND ALL DOCUMENTS AND INSTRUMENTS, THAT MAY BE NECESSARY TO CONTINUE SUCH APPOINTMENT IN FULL FORCE AND EFFECT AS AFORESAID. SERVICE OF PROCESS UPON SUCH AUTHORIZED AGENT AND WRITTEN NOTICE OF SUCH SERVICE TO THE ISSUER SHALL BE DEEMED, IN EVERY RESPECT, EFFECTIVE SERVICE OF PROCESS UPON THE ISSUER.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 17. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 18. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.
SECTION 19. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 20. Bail-in Power. Notwithstanding any other term of this Agreement or any other agreements, arrangements, or understanding among the Issuer, any Underwriter organized in a member state of the European Economic Area which has implemented the Bail-in
27
Legislation (together with the Issuer, each a “BRRD Party”) and the Underwriters, each BRRD Party and each Underwriter acknowledges and accepts that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts, and agrees to be bound by:
(a) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of a BRRD Party (“Relevant BRRD Party”) to the other BRRD Party or to such Underwriter under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
(i) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon on a permanent basis;
(ii) the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the Relevant BRRD Party or another person, and the issue to or conferral on the other BRRD Party or such Underwriter of such shares, securities or obligations;
(iii) the cancellation of the BRRD Liability; and/or
(iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and
(b) the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.
Neither a reduction, in part or in full, of any BRRD Liability, the conversion thereof into another security or obligation of the Relevant BRRD Party or another person, as a result of the exercise of the Bail-in Power by the Relevant Resolution Authority with respect to the Relevant BRRD Party, nor the exercise of any Bail-in Power by the Relevant Resolution Authority with respect to the Agreement will be an event of default or otherwise constitute non-performance of a contractual obligation, or entitle the Underwriter to any remedies (including equitable remedies), which are hereby expressly waived.
For purposes of this Section 20:
“Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time.
“Bail-in Powers” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation.
“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
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“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at https://www.lma.eu.com/documents-guidelines/eu-bail-legislation-schedule (or any such successor web page).
“BRRD Liability” means a liability in respect of which the relevant Bail-in Powers in the applicable Bail-in Legislation may be exercised.
“Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the Relevant BRRD Party.
SECTION 21. Recognition of the U.S. Special Resolution Regimes. In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
In the event that any Underwriter that is a Covered Entity or a Covered Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, any Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 21:
“Covered Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the U.S. Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
[Remainder of page intentionally left blank. Signature pages follow.]
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Issuer a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the several Underwriters, the Qualified Independent Underwriter and the Issuer in accordance with its terms.
| Very truly yours, | ||
| DEUTSCHE BANK AKTIENGESELLSCHAFT | ||
| By: | /s/ Jonathan Blake | |
| Name: Jonathan Blake | ||
| Title: Managing Director | ||
| By: | /s/ Thomas Rückert | |
| Name: Thomas Rückert | ||
| Title: Vice President | ||
[Signature Page to Purchase Agreement]
CONFIRMED AND ACCEPTED
as of the date first above written:
DEUTSCHE BANK SECURITIES INC.,
for itself and in its capacity as Representative of the several Underwriters named in Schedule A hereto
| By: | /s/ John Han | |
| Name: John Han | ||
| Title: Managing Director | ||
| By: | /s/ Thomas Short | |
| Name: Thomas Short | ||
| Title: Director/Debt Syndicate | ||
CITIGROUP GLOBAL MARKETS INC.
in its capacity as Qualified Independent Underwriter
| By: | /s/ Adam D. Bordner | |
| Name: Adam D. Bordner | ||
| Title: Director |
[Signature Page to Purchase Agreement]
SCHEDULE A
| Name of Underwriter |
Aggregate principal amount of Notes ($) |
|||
| Deutsche Bank Securities Inc. |
996,250,000 | |||
| Citigroup Global Markets Inc. |
40,625,000 | |||
| Banca IMI S.p.A. |
17,500,000 | |||
| BBVA Securities Inc. |
17,500,000 | |||
| BMO Capital Markets Corp. |
17,500,000 | |||
| CIBC World Markets Corp. |
17,500,000 | |||
| Morgan Stanley & Co. LLC |
17,500,000 | |||
| Santander Investment Securities Inc. |
17,500,000 | |||
| TD Securities (USA) LLC |
17,500,000 | |||
| UniCredit Capital Markets LLC |
17,500,000 | |||
| Nordea Bank ABP |
9,375,000 | |||
| RBC Capital Markets, LLC |
9,375,000 | |||
| Standard Chartered Bank |
9,375,000 | |||
| Academy Securities, Inc. |
3,750,000 | |||
| Bancroft Capital LLC |
3,750,000 | |||
| Barclays Capital Inc. |
3,750,000 | |||
| BNY Mellon Capital Markets, LLC |
3,750,000 | |||
| Capital Institutional Services, Inc. |
3,750,000 | |||
| Citizens Capital Markets, Inc. |
3,750,000 | |||
| Fifth Third Securities, Inc. |
3,750,000 | |||
| KeyBanc Capital Markets Inc. |
3,750,000 | |||
| Mischler Financial Group, Inc. |
3,750,000 | |||
| Multi-Bank Securities, Inc. |
3,750,000 | |||
| Regions Securities LLC |
3,750,000 | |||
| UBS Securities LLC |
3,750,000 | |||
|
|
|
|||
| Total |
1,250,000,000 | |||
|
|
|
|||
Schedule A
SCHEDULE B
| 1. | The initial public offering price per security for the Notes, determined as provided in Section 2, shall be $200,056. |
| 2. | The purchase price per security for the Notes to be paid by the several Underwriters shall be $200,056, being an amount equal to the initial public offering price set forth above. |
| 3. | The compensation per Note to be paid by the Issuer to the several Underwriters in respect of their commitments hereunder shall be $2,000 per Note. |
Schedule B
SCHEDULE C
| 1. | Final Term Sheet, dated February 11, 2020, in respect of the Notes as filed pursuant to Rule 433 on February 12, 2020. |
Schedule C
EXHIBIT A
FORMS OF OPINION AND DISCLOSURE LETTER
OF CLEARY GOTTLIEB STEEN & HAMILTON LLP
TO BE DELIVERED PURSUANT TO SECTION 5(b)
February [●], 2020
| Deutsche Bank Securities Inc. as Representative
of the several c/o Deutsche Bank Securities Inc. 60 Wall Street New York, NY 10005 |
Ladies and Gentlemen:
We have acted as special United States counsel to Deutsche Bank Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany (the “Bank”), in connection with the Bank’s offering pursuant to a registration statement on Form F-3 (No. 333-226421) of $1,250,000,000 aggregate principal amount of the Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 (the “Notes”) to be issued under a capital securities indenture dated as of November 6, 2014 (the “Base Indenture”), as supplemented by the second supplemental capital securities indenture dated July 25, 2019 (the “Second Supplemental Indenture”), as further supplemented by the fourth supplemental capital securities indenture dated February 14, 2020 (the “Fourth Supplemental Indenture”) and as additionally supplemented by the fifth supplemental capital securities indenture dated February 14, 2020 (the “Fifth Supplemental Indenture” and, together with the Base Indenture, the Second Supplemental Indenture and the Fourth Supplemental Indenture, the “Indenture”), in each case among the Bank, The Bank of New York Mellon, as trustee (the “Trustee”), and Deutsche Bank Trust Company Americas, as paying agent, calculation agent, transfer agent and registrar and authenticating agent (the “Agent”). Such registration statement, as amended as of its most recent effective date (February 10, 2020), insofar as it relates to the Notes (as determined for purposes of Rule 430B(f)(2) under the Securities Act of 1933, as amended (the “Securities Act”)), including the documents incorporated by reference therein but excluding any related Form T-1 filing, is herein called the “Registration Statement;” the related prospectus dated August 20, 2018, included in the Registration Statement filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act, including the documents incorporated by reference therein, is herein
Exhibit A-1
called the “Base Prospectus;” the preliminary prospectus supplement dated February 10, 2020, as filed with the Commission pursuant to Rule 424(b) under the Securities Act, including the documents incorporated by reference therein, is herein called the “Preliminary Prospectus Supplement;” and the related prospectus supplement dated February 11, 2020, as filed with the Commission pursuant to Rule 424(b) under the Securities Act, including the documents incorporated by reference therein, is herein called the “Final Prospectus Supplement.” The Base Prospectus and the Preliminary Prospectus Supplement together are herein called the “Pricing Prospectus,” and the Base Prospectus and the Final Prospectus Supplement together are herein called the “Final Prospectus.” This opinion letter is furnished pursuant to Section 5(b)(i) of the purchase agreement dated February 11, 2020 (the “Purchase Agreement”) between the Bank and the several underwriters named in Schedule A thereto (the “Underwriters”).
In arriving at the opinions expressed below, we have reviewed the following documents:
| (a) | an executed copy of the Purchase Agreement; |
| (b) | the Registration Statement; |
| (c) | the Pricing Prospectus and the document listed in Schedule I hereto; |
| (d) | the Final Prospectus; |
| (e) | copies of the Notes in global form as executed by the Bank and authenticated by the Agent (the “Global Notes”); |
| (f) | an executed copy of the Indenture; and |
| (h) | the documents delivered to you by the Bank at the closing pursuant to the Purchase Agreement. |
In addition, we have made such investigations of law as we have deemed appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed (including, without limitation, the accuracy of the representations and warranties of the Bank in the Purchase Agreement).
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that:
1. The Indenture has been duly executed and delivered by the Bank under the law of the State of New York and qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and is a valid, binding and enforceable agreement of the Bank (except that we express no opinion with respect to the validity, binding effect or enforceability of the provisions of
Exhibit A-2
Section 13.01 of the Base Indenture, as amended by the Second Supplemental Indenture and the Fourth Supplemental Indenture, relating to the ranking of the Notes and their status, which provisions are expressed to be governed by German law, including, in relation to such provisions, any determination of whether a Resolution Measure (as defined in the Indenture) has been imposed on the Bank).
2. The Notes have been duly executed and delivered by the Bank under the law of the State of New York and are the valid, binding and enforceable obligations of the Bank, entitled to the benefits of the Indenture (except that we express no opinion with respect to the validity, binding effect or enforceability of the provisions of § 2 (2) of the terms of the Notes relating to the ranking of the Notes and their status, which provisions are expressed to be governed by German law, including, in relation to such provisions, any determination of whether a Resolution Measure has been imposed on the Bank).
3. The statements under the headings “Description of the Notes” and “Description of Capital Securities” in the Pricing Prospectus, considered together with the document listed in Schedule I hereto, and in the Final Prospectus, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions (except that we express no opinion with respect to any such statements under the sub-heading “Status; Ranking” that purport to summarize the provisions of the Notes and the Indenture relating to the ranking of the Notes and their status, which provisions are expressed to be governed by German law, including, in relation to such provisions, any determination of whether a Resolution Measure has been imposed on the Bank).
4. The statements made in the Pricing Prospectus, considered together with the document listed in Schedule I hereto, and in the Final Prospectus under the heading “U.S. Federal Income Tax Consequences,” insofar as such statements purport to summarize certain federal income tax laws of the United States, constitute a fair summary of the principal U.S. federal income tax consequences of an investment in the Notes.
5. The Purchase Agreement has been duly executed and delivered by the Bank under the law of the State of New York.
6. The issuance and sale of the Notes to the Underwriters pursuant to the Purchase Agreement do not, and the performance by the Bank of its obligations in the Purchase Agreement, the Indenture and the Notes will not, (a) require any consent, approval, authorization, registration or qualification of or with any governmental authority of the United States or the State of New York that in our experience normally would be applicable to general business entities with respect to such issuance, sale or performance, except such as have been obtained or effected under the Securities Act and the Trust Indenture Act (but we express no opinion relating to any state securities or Blue Sky laws), or (b) result in a violation of any United States federal or New York State law or published rule or regulation that in our experience normally would be applicable to general business entities with respect to such issuance, sale or performance (but we express no opinion relating to the United States federal securities laws or any state securities or Blue Sky laws).
Exhibit A-3
7. The conditions to the authentication of the Global Notes in Sections 2.03, 2.04, 2.06 and 8.01(d) of the Base Indenture have been complied with.
8. Under the law of the State of New York relating to submission to jurisdiction, the Bank, pursuant to Section 16 of the Purchase Agreement, has (a) validly and irrevocably submitted to the jurisdiction of any United States federal court located in the State of New York, and (b) validly appointed Deutsche Bank Americas Holding Corp. as its authorized agent for the purposes described in Section 16 of the Purchase Agreement.
9. No registration of the Bank under the U.S. Investment Company Act of 1940, as amended, is required for the offer and sale of the Notes by the Bank in the manner contemplated by the Purchase Agreement and the Final Prospectus and the application of the proceeds thereof as described in the Final Prospectus.
Insofar as the foregoing opinions relate to the validity, binding effect or enforceability of any agreement or obligation of the Bank, (a) we have assumed that the Bank and each other party to such agreement or obligation has satisfied those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption is made as to the Bank regarding matters of the federal law of the United States of America or the law of the State of New York that in our experience normally would be applicable to general business entities with respect to such agreement or obligation), (b) such opinions are subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity, (c) we express no opinion with respect to the effect of any mandatory choice of law rules and (d) such opinions are subject to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors’ rights.
With respect to the second sentence of Section 16 of the Purchase Agreement, the first sentence of Section 11.12 of the Base Indenture and Section 14.02 of the Fifth Supplemental Indenture, we express no opinion as to the subject matter jurisdiction of any United States federal court to adjudicate any action relating to the Notes where jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332 does not exist. We express no opinion as to the enforceability of Section 11.13 of the Base Indenture relating to currency indemnity. We express no opinion as to the enforceability of Section 1.02(l) of the Second Supplemental Indenture and Section 2.03(i) of the Fifth Supplemental Indenture (and the corresponding provisions in the Notes) providing for the survival of the Bank’s obligations to indemnify the Trustee in accordance with Sections 6.02 and 6.06 of the Base Indenture after the imposition of a Resolution Measure by the competent resolution authority (as defined in the Second Supplemental Indenture) with respect to the Notes.
The foregoing opinions are limited to the federal law of the United States of America and the law of the State of New York excluding any laws, statutes, rules and regulations that relate to the regulation of banking activities.
Exhibit A-4
We are furnishing this opinion letter to you, as Representative of the Underwriters, solely for the benefit of the Underwriters in their capacity as such in connection with the offering of the Notes. This opinion letter is not to be relied on by or furnished to any other person or used, circulated, quoted or otherwise referred to for any other purpose, except that reference to it may be made in the Purchase Agreement and it may be used as required by law or if deemed necessary by the addressees to establish a legal defense. We assume no obligation to advise you, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein.
| Very truly yours, | ||
| CLEARY GOTTLIEB STEEN & HAMILTON LLP | ||
| By: |
| |
| Ward A. Greenberg, a Partner | ||
Exhibit A-5
Schedule I
Final Term Sheet, dated February 11, 2020, in respect of the Notes as filed pursuant to Rule 433 on February 11, 2020.
Exhibit A-6
February [●], 2020
| Deutsche Bank Securities Inc. as Representative
of the several c/o Deutsche Bank Securities Inc. 60 Wall Street New York, NY 10005 |
Ladies and Gentlemen:
We have acted as special United States counsel to Deutsche Bank Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany (the “Bank”), in connection with the Bank’s offering pursuant to a registration statement on Form F-3 (No. 333-226421) of $1,250,000,000 aggregate principal amount of the Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 (the “Notes”) to be issued under a capital securities indenture dated as of November 6, 2014, as supplemented by the second supplemental capital securities indenture dated July 25, 2019, as further supplemented by the fourth supplemental capital securities indenture dated February 14, 2020, and as additionally supplemented by the fifth supplemental capital securities indenture dated February 14, 2020, in each case among the Bank, The Bank of New York Mellon, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, calculation agent, transfer agent and registrar and authenticating agent. Such registration statement, as amended as of its most recent effective date (February 10, 2020), insofar as it relates to the Notes (as determined for purposes of Rule 430B(f)(2) under the Securities Act of 1933, as amended (the “Securities Act”)), including the documents incorporated by reference therein but excluding any related Form T-1 filing, is herein called the “Registration Statement;” the related prospectus dated August 20, 2018, included in the Registration Statement filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act, including the documents incorporated by reference therein, is herein called the “Base Prospectus;” the preliminary prospectus supplement dated February 10, 2020, as filed with the Commission pursuant to Rule 424(b) under the Securities Act, including the documents incorporated by reference therein, is herein called the “Preliminary Prospectus Supplement;” and the related prospectus supplement dated February 11, 2020, as filed with the Commission pursuant to Rule 424(b) under the Securities Act, including the documents incorporated by reference therein, is herein called the “Final Prospectus Supplement.” The Base Prospectus and the Preliminary Prospectus Supplement together are herein called the “Pricing Prospectus,” and the Base Prospectus and the Final Prospectus Supplement together are herein called the “Final Prospectus.” This letter is furnished pursuant to Section 5(b)(i) of the purchase agreement dated February 11, 2020 (the “Purchase Agreement”) between the Bank and the several underwriters named in Schedule A thereto (the “Underwriters”).
Because the primary purpose of our professional engagement was not to establish or confirm factual matters or financial, accounting or statistical information, and because many
Exhibit A-7
determinations involved in the preparation of the Registration Statement, the Pricing Prospectus, the Final Prospectus and the document listed in Schedule I hereto are of a wholly or partially non-legal character or relate to legal matters outside the scope of our opinion letter to you of even date herewith, we are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Prospectus, the Final Prospectus or the document listed in Schedule I hereto (except to the extent expressly set forth in numbered paragraph 3 and 4 of our opinion letter to you of even date herewith), and we make no representation that we have independently verified the accuracy, completeness or fairness of such statements (except as aforesaid). We also are not passing upon and do not assume any responsibility for ascertaining whether or when any of the Pricing Prospectus, the Final Prospectus or the document listed in Schedule I hereto was conveyed to any person for purposes of Rule 159 under the Securities Act.
However, in the course of our acting as special United States counsel to the Bank in connection with its preparation of the Registration Statement, the Pricing Prospectus and the Final Prospectus (but excluding the documents incorporated by reference in each of them) and the document listed in Schedule I hereto, we participated in conferences and telephone conversations with representatives of the Bank, representatives of the independent public accountants for the Bank, your representatives and representatives of your counsel, during which conferences and conversations the contents of the Registration Statement, the Pricing Prospectus, the Final Prospectus and the document listed in Schedule I hereto and related matters were discussed, and we reviewed the documents incorporated by reference in each of the Registration Statement, the Pricing Prospectus and the Final Prospectus and certain corporate records and documents furnished to us by the Bank.
Based on our participation in such conferences and conversations and our review of such records and documents as described above, our understanding of the U.S. federal securities laws and the experience we have gained in our practice thereunder, we advise you that:
(a) The Registration Statement (except the financial statements and schedules and other financial data (including management’s report on the effectiveness of internal control over financial reporting) included therein, as to which we express no view), as of its most recent effective date, and the Final Prospectus (except as aforesaid), as of the date thereof, appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and the applicable rules and regulations thereunder. In addition, we do not know of any contracts or other documents of a character required to be filed as exhibits to the Registration Statement or required to be described in the Registration Statement or the Final Prospectus that are not filed or described as required.
(b) No information has come to our attention that causes us to believe that the Registration Statement (except the financial statements and schedules and other financial data (including management’s report on the effectiveness of internal control over financial reporting) included therein, as to which we express no view), as of its most recent effective date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
Exhibit A-8
(c) No information has come to our attention that causes us to believe that the Pricing Prospectus, considered together with the document listed in Schedule I hereto (except in each case the financial statements and schedules and other financial data (including management’s report on the effectiveness of internal control over financial reporting) included therein, as to which we express no view), at [●] pm (Eastern time) on February 11, 2020, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(d) No information has come to our attention that causes us to believe that the Final Prospectus (except the financial statements and schedules and other financial data (including management’s report on the effectiveness of internal control over financial reporting) included therein, as to which we express no view), as of the date thereof or hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
We confirm to you that (a) based solely upon our review of the Notice of Effectiveness on the website of the Commission, the Registration Statement is effective under the Securities Act, and (b) based solely upon a review of filings on the website of the Commission, no stop order with respect thereto has been issued by the Commission, and to the best of our knowledge, no proceeding for that purpose has been instituted or threatened by the Commission.
We are furnishing this letter to you, as Representative of the Underwriters, solely for the benefit of the Underwriters in their capacity as such in connection with the offering of the Notes. This letter is not to be relied on by or furnished to any other person or used, circulated, quoted or otherwise referred to for any other purpose, except that reference to it may be made in the Purchase Agreement and it may be used as required by law or if deemed necessary by the addressees to establish a legal defense. We assume no obligation to advise you, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the views expressed herein.
| Very truly yours, | ||
| CLEARY GOTTLIEB STEEN & HAMILTON LLP | ||
| By: |
| |
| Ward A. Greenberg, a Partner | ||
Exhibit A-9
Schedule I
Final Term Sheet, dated February 11, 2020, in respect of the Notes as filed pursuant to Rule 433 on February 11, 2020.
Exhibit A-10
EXHIBIT B
FORM OF OPINION
OF GROUP LEGAL SERVICES OF DEUTSCHE BANK AG
TO BE DELIVERED PURSUANT TO SECTION 5(b)
| To: | Deutsche Bank Securities Inc. |
and the other Underwriters referred to below
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, NY 10005
[●], 2020
Deutsche Bank Aktiengesellschaft – $1,250,000,000 Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020
Ladies and Gentlemen:
In our capacity as counsel of Deutsche Bank Aktiengesellschaft (the “Bank”), we have advised the Bank as to matters of German law in connection with the offering and sale (the “Offer”) pursuant to a registration statement on Form F-3 (No. 333-226421) filed with the Securities and Exchange Commission (the “Commission”) on July 30, 2018 (the “Registration Statement”), as amended by pre-effective amendment no. 1, filed with the Commission on August 14, 2018, and as further amended by pre-effective amendment no. 2, filed with the Commission on August 17, 2018 and declared effective by the Commission on August 20, 2018, and the base prospectus dated August 20, 2018, as supplemented by the preliminary prospectus supplement dated February 10, 2020 and the final prospectus supplement dated February 11, 2020 (together, the “Prospectus”) of $1,250,000,000 aggregate principal amount of the Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 (the “Notes”) issued by the Bank pursuant to a Capital Securities Indenture, dated November 6, 2014 (the “Base Capital Securities Indenture”), as supplemented by the Second Supplemental Capital Securities Indenture, dated July 25, 2019 (the “Second Supplemental Capital Securities Indenture”), as further supplemented by the Fourth Supplemental Capital Securities Indenture, dated February 14, 2020 (the “Fourth Supplemental Securities Indenture”), and as additionally supplemented by the Fifth Supplemental Capital Securities Indenture dated February 14, 2020 (the “Fifth Supplemental Capital Securities Indenture” and, together with the Base Capital Securities Indenture, the Second Supplemental Capital Securities Indenture and the Fourth Supplemental Capital Securities Indenture, the “Capital Securities Indenture”), in each case among the Bank, The Bank of New York Mellon, as trustee (the “Trustee”), and Deutsche Bank Trust Company Americas, as paying agent, calculation agent, transfer agent, and registrar and authenticating agent (the “Agent”). This opinion is furnished to you pursuant to Section 5(b)(ii) of the Purchase Agreement, dated February 11, 2020 (the “Purchase Agreement”), among the Bank and the several underwriters named in Schedule A thereto (the “Underwriters”). Terms not defined herein shall have the same meaning as in the Purchase Agreement.
Exhibit B-1
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 the State 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 affects this opinion.
For the purpose of this opinion we have examined the following documents:
| (a) | the Articles of Association (Satzung) of the Bank as currently in force; |
| (b) | scanned copies of the Purchase Agreement, the Capital Securities Indenture, and the Notes in global form as executed by the Bank and authenticated by the Agent (collectively, the “Transaction Documents”); |
| (c) | electronic copies of the Registration Statement and the Prospectus; |
| (d) | scanned copies of the powers of attorney issued on behalf of the Bank by Christian Sewing and James von Moltke, members of the Management Board of the Bank, on July 17, 2018; |
| (e) | scanned copies of the letters, dated (i) September 28, 2012, from the Bank to, and accepted by, Deutsche Bank Americas Holding Corp., New York, appointing Deutsche Bank Americas Holding Corp. as agent for service of process in the United States for the Bank, and (ii) July 30, 2018 from the Bank to, and accepted by, DB USA Corporation, appointing DB USA Corporation as agent for service of process in the United States for the Bank in connection with the Transaction Documents (the “Process Agent Letters”); 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:
| (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 the State of New York (by which they are expressed to be governed, other than the provisions of Section 13.01 of the Capital Securities Indenture and § 2 (2) of the terms of the Notes relating to the ranking of the Notes and their status, which provisions are expressed to be governed by the laws of Germany, including, in relation to such provisions, any determination of whether a resolution measure has been imposed on the Bank (the “German Law Provisions”)), except that no such assumption is made as to the German Law Provisions; |
| (iii) | the Notes are being offered and sold as contemplated by the Registration Statement and the Prospectus; |
| (iv) | the Base Capital Securities Indenture has not subsequently been amended in a manner applicable to the Notes other than by means of the Second Supplemental Capital Securities Indenture, the Fourth Supplemental Capital Securities Indenture and the Fifth Supplemental Capital Securities Indenture; |
| (v) | the Notes have not subsequently been amended; |
Exhibit B-2
| (vi) | the Purchase Agreement, the Powers of Attorney and the Process Agent Letters have not subsequently been amended; and |
| (vii) | all signatures on all documents submitted to us are genuine and that copies of all documents submitted to us are complete and conform to the originals. |
Based upon the foregoing we are of the opinion that:
| (1) | the Bank is duly organized and validly existing as a stock corporation (Aktiengesellschaft) under the laws of Germany and has full power and authority to engage in banking business in Germany; the Bank is qualified, as far as the laws of Germany are concerned, to conduct the business in which it is engaged in each jurisdiction where it conducts business; |
| (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 Purchase Agreement has been validly executed and delivered on behalf of the Bank; |
| (5) | the Capital Securities Indenture has been validly executed and delivered on behalf of the Bank and constitutes a valid and binding obligation of the Bank; |
| (6) | the terms of the Notes, having been established by the Fifth Supplemental Capital Securities Indenture, have been duly authorized by the Bank; |
| (7) | the Notes have been validly executed and delivered on behalf of the Bank and constitute valid and binding obligations of the Bank; |
| (8) | the statements under the headings “Description of the Notes” and “Description of Capital Securities” in the Prospectus, in so far as such statements purport to summarize the provisions of the Capital Securities Indenture and the Notes relating to the ranking of the Notes and their status, which are expressed to be governed by German law, provide a fair summary of such provisions; |
| (9) | none of the execution and delivery of the Transaction Documents, the issuance of the Notes pursuant to the Indenture, the offering and sale of the Notes in accordance with the Purchase Agreement or the performance by the Bank of its obligations under the Transaction Documents (x) requires the consent, approval, authorization, registration or qualification of or with any governmental authority in Germany or (y) conflicts with or results in a breach or violation of any of the terms and provisions of, or constitutes a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to us after due inquiry, to which the Bank is a party or by which the Bank or its properties are bound, or the Articles of Association (Satzung) of the Bank or any statute in Germany or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to us after due inquiry and applicable to the Bank; |
| (10) | to the best of our knowledge, there are no legal or governmental actions, suits or proceedings before or by any court of governmental agency or body in Germany now pending or threatened against or affecting the Bank or of which any property of the Bank is the subject other than as set forth in the Registration Statement or Prospectus and other than litigation that in each case is reasonably |
Exhibit B-3
| expected not to have a material adverse effect on the financial condition of the Bank and its consolidated subsidiaries, taken as a whole, or the ability of the Bank to perform its obligations under the Transaction Documents to which it is a party; |
| (11) | it is not necessary under the laws of Germany in order to enable either the Trustee or, to the extent permitted by the provisions of the Capital Securities Indenture, the holder of a Note to enforce rights under the Capital Securities Indenture that it should, as a result solely of its holding of the Note, be licensed, qualified or otherwise entitled to carry on business in Germany; |
| (12) | the courts in Germany (assuming they accept jurisdiction) would observe and give effect to the choice of the laws of the State of New York as governing the Transaction Documents, except for the German Law Provisions of the Capital Securities Indenture and the Notes, with respect to which such courts would observe and give effect to German law; and |
| (13) | any judgment against the Bank enforcing the Transaction Documents and given by the State or Federal courts of the State of New York would be recognized and enforced in Germany provided that the requirements of Section 328 of the German Code of Civil Procedure (Zivilprozessordnung) are met, in particular that: |
| (a) | the courts have subject matter jurisdiction and there is no exclusive German jurisdiction; we confirm that (x) as regards the enforcement of the Capital Securities Indenture against the Bank, Section 11.12 of the Base Capital Securities Indenture and Section 14.02 of the Fifth Supplemental Capital Securities Indenture are sufficient to confer jurisdiction to the courts referred to therein and (y) as regards the enforcement of the Purchase Agreement against the Bank, Section 16 of the Purchase Agreement is sufficient to confer jurisdiction to the courts referred to therein; |
| (b) | the Bank has put in a general appearance in the proceedings or actual personal service of process was made on the Bank in a proper way (service of process in accordance with the provisions of the Process Agent Letters would be sufficient for such purposes) and timely enough to allow raising of defenses; |
| (c) | such judgment is not contrary to an existing judgment which is to be recognized in Germany; |
| (d) | such judgment has not resulted from legal proceedings begun subsequent to other legal proceedings regarding the same subject matter, which legal proceedings are incompatible therewith; |
| (e) | the recognition of the foreign judgment is not obviously contrary to the essential principles of the laws of Germany, in particular rights granted under the constitutional law of Germany; there is no reason to believe that any payment judgment (other than for penal damages) enforcing the Transaction Documents, which judgment is in line with the laws and the public policy in the State of New York, would be obviously contrary either to essential principles of the laws of Germany or rights granted under the constitutional law of Germany; and |
| (f) | reciprocity of recognition of judgments between Germany and the jurisdiction rendering the judgment exists; based upon our understanding with respect to the recognition of foreign money judgments by State and Federal courts in the State of New York, it is unlikely that as between such courts and the courts of Germany at present reciprocity would be deemed not to exist. |
Exhibit B-4
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; and |
| (F) | we do not express an opinion as to any rights and obligations the Bank may have or appears to have under the Transaction Documents against itself. |
We are furnishing this opinion solely for your benefit; provided that a copy of this opinion may be delivered to The Bank of New York Mellon, which may rely upon this opinion in connection with the Capital Securities Indenture and the Notes, and to any nationally recognized statistical rating agency (in connection with the rating of the Notes), each of which may rely on this opinion to the same extent as if such opinion were addressed to it, on the date hereof (it being understood that this opinion speaks only as of the date hereof).
This opinion is furnished by us, as counsel of the Bank, in connection with the Offer and, except as provided in the immediately preceding paragraph, is not to be used, circulated, quoted or otherwise referred to for any other purpose without our prior written approval in each instance, or relied upon by any other person. 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,
| [●] [●] |
Dr. Mathias Otto General Counsel of Infrastructure and Regulatory Advice of Deutsche Bank AG |
Exhibit B-5
EXHIBIT C
FORM OF CERTIFICATE
OF THE TRUSTEE
TO BE DELIVERED PURSUANT TO SECTION 5(d)
THE BANK OF NEW YORK MELLON
Trustee’s Certificate
The Bank of New York Mellon hereby certifies that:
1. The Capital Securities Indenture, dated as of November 6, 2014 (the “Base Indenture”), among Deutsche Bank Aktiengesellschaft (the “Issuer”), The Bank of New York Mellon, as trustee (the “Trustee”) and Deutsche Bank Trust Company Americas (“DBTCA”), as paying agent, calculation agent, transfer agent and registrar and authenticating agent, has been duly executed and delivered in the name and on behalf of the Trustee by [●], one of its duly authorized officers.
2. The Second Supplemental Capital Securities Indenture, dated as of July 25, 2019 (the “Second Supplemental Indenture”), the Fourth Supplemental Capital Securities Indenture dated as of February [●], 2020 (the “Fourth Supplemental Indenture”), and the Fifth Supplemental Capital Securities Indenture, dated as of February [●], 2020 (the “Fifth Supplemental Indenture”), among the Issuer, the Trustee and DBTCA, have been duly executed and delivered in the name and on behalf of the Trustee by one of its duly authorized officers.
3. Each person who, on behalf of the Trustee, executed and delivered the Base Indenture, the Second Supplemental Indenture, the Fourth Supplemental Indenture or the Fifth Supplemental Indenture was at the date thereof and is now duly elected, appointed or authorized, qualified and acting as an officer or authorized signatory of the Trustee and duly authorized to perform such acts at the respective times of such acts and the signatures of such persons appearing on such documents are their genuine signatures.
4. Attached hereto are (i) an extract from the By-laws of the Trustee, duly adopted by its Board of Directors, respecting the signing authority of the persons mentioned above in paragraph 3, who are currently duly elected, appointed or authorized, qualified and acting as an officer or authorized signatory of the Trustee, which By-laws as of the date hereof are in full force and effect and (ii) a signing authority list signed by a Vice President of the undersigned, certifying that the individuals whose names appear on such list have been granted signing authority pursuant to such By-laws or an incumbency certificate of the Secretary of the Trustee (or a combination of both the list and incumbency certificate), certifying that the individual whose name appears on such incumbency certificate, has been granted signing authority pursuant to such By-laws, which list and/or incumbency certificate as of the date hereof are in full force and effect.
Exhibit C-1
IN WITNESS WHEREOF, THE BANK OF NEW YORK MELLON has caused this certificate to be executed in its corporate name by an officer thereunto duly authorized.
| Dated: February [●], 2020 | ||||||
| THE BANK OF NEW YORK MELLON | ||||||
| By: |
| |||||
| Name: | ||||||
| Title: | ||||||
Exhibit C-2
EXHIBIT D
FORM OF CERTIFICATE
OF THE INITIAL PAYING AGENT, CALCULATION AGENT, TRANSFER AGENT AND
REGISTRAR AND AUTHENTICATING AGENT
TO BE DELIVERED PURSUANT TO SECTION 5(e)
DEUTSCHE BANK TRUST COMPANY AMERICAS
Authenticating Agent’s Certificate
Deutsche Bank Trust Company Americas (“DBCTA”), hereby certifies as follows:
1. The Capital Securities Indenture, dated as of November 6, 2014 (the “Base Indenture”), among Deutsche Bank Aktiengesellschaft (the “Issuer”), The Bank of New York Mellon, as trustee (the “Trustee”) and DBTCA, as paying agent, calculation agent, transfer agent and registrar and authenticating agent (the “Authenticating Agent”), has been duly executed and delivered in the name and on behalf of DBTCA by [●] and [●], each a [Vice President] of the Trust Company.
2. The Second Supplemental Capital Securities Indenture, dated as of July 25, 2019 (the “Second Supplemental Indenture”), the Fourth Supplemental Capital Securities Indenture, dated as of February [●], 2020 (the “Fourth Supplemental Indenture”), and the Fifth Supplemental Capital Securities Indenture, dated as of February [●], 2020 (the “Fifth Supplemental Indenture” and, together with the Base Indenture, the Second Supplemental Indenture, the Fourth Supplemental Indenture and the Fifth Supplemental Indenture (the “Indenture”), among the Issuer, the Trustee and DBTCA, have been duly executed and delivered in the name and on behalf of DBTCA by two of its duly authorized officers.
3. In accordance with the instructions of the Issuer and the provisions of the Indenture, the Authenticating Agent has duly authenticated US$[ ] in aggregate principal amount of the Issuer’s Undated Non-Cumulative Fixed to Reset Rate Additional Tier 1 Notes of
Exhibit D-1
2020, callable (i) on any business day commencing on (and including) October 30, 2025 and ending on (and including) April 30, 2026 and (ii) on April 30 of each year thereafter) (the “Notes”) and has made the Notes available for delivery to or upon the written order of the Issuer. The Authenticating Agent has examined the forms of the Notes so authenticated and delivered and has found the same to be in substantially the forms called for by the Indenture.
5. Each person who, on behalf of DBTCA, signed the Base Indenture, the Second Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture or authenticated the Notes was duly elected or appointed, qualified and acting as an officer at the respective times of the signing and delivery thereof and was duly authorized to sign such document on behalf of DBTCA, and the signature of each such person appearing on each such document is the genuine signature of such officer.
6. Attached hereto are true copies of (i) an extract of the by-laws of the Authenticating Agent and (ii) resolutions duly adopted by the Board of Directors of the Authenticating Agent in respect of the signing authority of certain officers of the Authenticating Agent, which bylaws and resolution at the date hereof are in full force and effect.
[Remainder of the page intentionally left blank]
Exhibit D-2
In witness whereof, DEUTSCHE BANK TRUST COMPANY AMERICAS has caused this certificate to be executed in its corporate name by an officer thereto duly authorized.
February [●], 2020
| DEUTSCHE BANK TRUST COMPANY AMERICAS | ||
| By: |
| |
| Name: | ||
| Title: | ||
Exhibit D-3
Exhibit 4.9(g)
DEUTSCHE BANK AKTIENGESELLSCHAFT,
Issuer
AND
THE BANK OF NEW YORK MELLON, LONDON BRANCH,
Trustee
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
Paying Agent, Calculation Agent, Transfer Agent and Registrar and Authenticating Agent
Fourth Supplemental Capital Securities Indenture
Dated as of February 14, 2020
to the Capital Securities Indenture
Dated as of November 6, 2014
TABLE OF CONTENTS
| ARTICLE 1 |
MODIFICATIONS TO THE PROVISIONS OF THE INDENTURE |
2 | ||||
| Section 1.01 |
Available Distributable Items |
2 | ||||
| Section 1.02 |
Capital Securities Subordinated |
3 | ||||
| ARTICLE 2 |
MISCELLANEOUS PROVISIONS |
6 | ||||
| Section 2.01 |
Further Assurances |
6 | ||||
| Section 2.02 |
Other Terms of Indenture |
6 | ||||
| Section 2.03 |
Terms Defined |
6 | ||||
| Section 2.04 |
Governing Law |
6 | ||||
| Section 2.05 |
Counterparts |
6 | ||||
| Section 2.06 |
Responsibility of the Trustee |
6 | ||||
| i |
THIS FOURTH SUPPLEMENTAL CAPITAL SECURITIES INDENTURE, dated as of February 14, 2020 among DEUTSCHE BANK AKTIENGESELLSCHAFT (the “Issuer”), THE BANK OF NEW YORK MELLON, LONDON BRANCH, as trustee (the “Trustee”), and DEUTSCHE BANK TRUST COMPANY AMERICAS (“DBTCA”), as Paying Agent, Calculation Agent, Transfer Agent and Registrar and Authenticating Agent.
W I T N E S S E T H :
WHEREAS, the Issuer and the Trustee are parties to that certain capital securities indenture, dated as of November 6, 2014, among the Issuer, the Trustee and DBTCA (the “Base Indenture”);
WHEREAS, the Issuer and the Trustee are parties to that certain second supplemental capital securities indenture, dated as of July 25, 2019, among the Issuer, the Trustee and DBTCA (the “Second Supplemental Capital Securities Indenture”), adding certain provisions to, and modifying certain provisions of, the Base Indenture (references to the “Base Indenture” herein shall mean the Base Indenture as amended by such Second Supplemental Capital Securities Indenture);
WHEREAS, Section 8.01(c) of the Base Indenture provides that, without the consent of the Holders of any Capital Securities, the Issuer and the Trustee may enter into indentures supplemental to the Base 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 Capital Securities or Coupons;
WHEREAS, there are no Capital Securities Outstanding of any series created prior to the execution of this Fourth Supplemental Capital Securities Indenture which are entitled to the benefit of the provisions set forth herein or would be adversely affected by such provisions;
WHEREAS, the Issuer and the Trustee desire to amend the Base Indenture in respect of certain Capital Securities to be issued under the Base Indenture on or after the date of this Fourth Supplemental Capital Securities Indenture (i) to provide that the Holders (including the Beneficial Owners) of such Capital Securities shall be bound by and shall be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority and (ii) to modify certain provisions of the Base Indenture to provide that such Capital Securities shall be subject to those provisions in their amended form;
WHEREAS, the entry into this Fourth Supplemental Capital Securities Indenture by the parties hereto is in all respects authorized by the provisions of the Base Indenture; and
| 1 |
WHEREAS, all things necessary to make this Fourth Supplemental Capital Securities 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 Capital Securities as follows:
ARTICLE 1
Modifications to the Provisions of the Indenture
Section 1.01 Available Distributable Items. The definition of the term “Available Distributable Items included both in Section 1.01 of the Base Indenture and in §3 (9) of the Form of Reverse of Security of the Form of Global Security attached as Exhibit A to the Base Indenture shall be amended by:
(a) replacing the words “distributable reserves (ausschüttungsfähige Rücklagen)” in clause (i) thereof with the words “reserves available for that purpose”; and
(b) inserting the words:
“in each case with respect to Additional Tier 1 instruments within the meaning of the CRR and pursuant to applicable law and the Articles of Association of the Issuer,”
after the words “(ii) any losses carried forward and any profits which are non-distributable pursuant to applicable law or the Articles of Association of the Issuer and any amounts allocated to the non-distributable reserves,”
and before the words “, provided that such profits, losses and reserves shall be determined on the basis of the unconsolidated financial statements of the Issuer prepared in accordance with accounting principles generally accepted in the Federal Republic of Germany as described in the German Commercial Code (Handelsgesetzbuch) and other applicable German law then in effect and not on the basis of its consolidated financial statements”
So that the definition of “Available Distributable Items” reads in its entirety:
“Available Distributable Items” means, with respect to any payment of interest, the profit (Gewinn) as of the end of the financial year of the Issuer immediately preceding the relevant Interest Payment Date, and for which audited annual financial statements are available, plus (i) any profits carried forward and reserves available for that purpose, minus (ii) any losses carried forward and any profits which
| 2 |
are non-distributable pursuant to applicable law or the Articles of Association of the Issuer and any amounts allocated to the nondistributable reserves, in each case with respect to Additional Tier 1 instruments within the meaning of the CRR and pursuant to applicable law and the Articles of Association of the Issuer, provided that such profits, losses and reserves shall be determined on the basis of the unconsolidated financial statements of the Issuer prepared in accordance with accounting principles generally accepted in the Federal Republic of Germany as described in the German Commercial Code (Handelsgesetzbuch) and other applicable German law then in effect and not on the basis of its consolidated financial statements.”
Section 1.02 Capital Securities Subordinated. With respect to the Capital Securities to be issued under the Base Indenture on or after the date of this Fourth Supplemental Capital Securities Indenture, unless any such Capital Security is a further issuance of Capital Securities with the same terms as Capital Securities originally issued prior to the date of this Fourth Supplemental Capital Securities Indenture, Section 13.01 of the Base Indenture, which reads as follows, shall be deleted in its entirety:
“The Capital Securities shall constitute unsecured and subordinated obligations of the Issuer, ranking pari passu among themselves and (as specified below) pari passu with all other equally subordinated obligations of the Issuer. If Resolution Measures are 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 insolvency of, or against, the Issuer, the obligations under any series of the Capital Securities shall be fully subordinated to (i) the claims of unsubordinated creditors (as defined below) of the Issuer, (ii) the claims specified in Section 39(1) nos. 1 to 5 of the German Insolvency Code (Insolvenzordnung) or any successor provision, and (iii) the claims under Tier 2 instruments (within the meaning of the CRR) of the Issuer. In any such event, no amounts shall be payable in respect of the Capital Securities until (i) the claims of such unsubordinated creditors of the Issuer, (ii) the claims specified in Section 39(1) nos. 1 to 5 of the German Insolvency Code or any successor provision, and (iii) the claims under such Tier 2 instruments have been satisfied in full. Subject to the foregoing, the Issuer may satisfy its obligations under the Capital Securities also from other distributable assets (freies Vermögen) of the Issuer.
| 3 |
Claims under the Capital Securities will rank pari passu with the claims against the Issuer under the Issuer’s other instruments issued as Additional Tier 1 capital within the meaning of the CRR and, as of the date of this Second Supplemental Capital Securities Indenture, (i) the subordinated guarantee given by the Issuer in relation with the issuance by Deutsche Bank Contingent Capital Trust II of its U.S.$ 800,000,000 Non-cumulative Trust Preferred Securities (ISIN US25153X2080); and (ii) the subordinated guarantee given by the Issuer in relation with the issuance by Deutsche Bank Contingent Capital Trust V of its U.S.$ 1,385,000,000 Non-cumulative Trust Preferred Securities (ISIN US25150L1089). The preceding list of subordinated guarantees may be amended from time to time as set out in the terms of the Capital Securities.
The term “unsubordinated creditors” shall mean the holders of any indebtedness or other payment obligation of the Issuer that is not expressed to be subordinated by means of contractual agreement or as a matter of law (including claims against the Issuer under its senior non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) or any successor provision).
No subsequent agreement may limit the subordination of any Capital Securities or shorten the term of any series of Capital Securities or any notice period applicable to such series.
No Holder may set off his claims arising under any series of the Capital Securities against any claims of the Issuer. No collateral or guarantee of whatever kind is, or shall at any time be, provided by the Issuer or any other person securing rights of the Holders under the any series of the Capital Securities, and any collateral or guarantee already provided or granted in the future in connection with the Issuer’s other liabilities may not be used for claims under the Capital Securities.”
and shall be replaced with the following:
“The Capital Securities shall 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 (as specified below). If Resolution Measures are 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 insolvency of, or against, the Issuer, the obligations under any series of the Capital Securities shall be fully subordinated to all obligations of the Issuer which do not also qualify as Additional Tier 1 capital or as Common Equity Tier capital within the meaning of the CRR; in any such event, no amounts shall be payable in respect of the Capital Securities until all senior ranking obligations in accordance with this provision have been
| 4 |
satisfied in full. Obligations which rank senior to the obligations under the Capital Securities include (i) all claims of unsubordinated creditors of the Issuer, (ii) the claims specified in Section 39(1) nos. 1 to 5 of the German Insolvency Code (Insolvenzordnung) (or any successor provision thereof), (iii) contractually subordinated obligations within the meaning of Section 39(2) of the German Insolvency Code (or any successor provision thereof) of the Issuer which do not qualify, from time to time, as own funds (within the meaning of the CRR), and (iv) the claims under Tier 2 instruments (within the meaning of the CRR) of the Issuer.
Subject to the foregoing, the Issuer may satisfy its obligations under the Capital Securities also from other distributable assets (freies Vermögen) of the Issuer.
Subject to applicable law from time to time, claims under the Capital Securities will rank pari passu with the claims against the Issuer under the Issuer’s other instruments issued as, and qualifying from time to time as, Additional Tier 1 capital within the meaning of the CRR and, as of the date of this Fourth Supplemental Capital Securities Indenture, the subordinated guarantee given by the Issuer in relation with the issuance by Deutsche Bank Contingent Capital Trust II of its U.S.$ 800,000,000 Non-cumulative Trust Preferred Securities (ISIN US25153X2080). The preceding list of subordinated guarantees may be amended from time to time as set out in the terms of the Capital Securities.
The term “unsubordinated creditors” shall mean the holders of any indebtedness or other payment obligation of the Issuer that is not expressed to be subordinated by means of contractual agreement or as a matter of law (including claims against the Issuer under its 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).
No subsequent agreement may limit the subordination of any Capital Securities or shorten the term of any series of Capital Securities or any notice period applicable to such series.
No Holder may set off his claims arising under any series of the Capital Securities against any claims of the Issuer. No collateral or guarantee of whatever kind is, or shall at any time be, provided by the Issuer or any other person securing rights of the Holders under the any series of the Capital Securities, and any collateral or guarantee already provided or granted in the future in connection with the Issuer’s other liabilities may not be used for claims under the Capital Securities.”
| 5 |
ARTICLE 2
MISCELLANEOUS PROVISIONS
Section 2.01 Further Assurances. The Issuer shall, 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 Fourth Supplemental Capital Securities Indenture.
Section 2.02 Other Terms of Base Indenture. Except insofar as herein otherwise expressly provided, all provisions, terms and conditions of the Base 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 Base Indenture shall have the same meanings when used herein.
Section 2.04 Governing Law. This Fourth Supplemental Capital Securities 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, other than with respect to the provisions relating to the ranking of the Capital Securities and their status, which provisions shall be governed by and construed in accordance with the laws of the Federal Republic of Germany, including, in relation to such provisions, any determination of whether a Resolution Measure has been imposed on the Issuer.
Section 2.05 Counterparts. This Fourth Supplemental Capital Securities Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 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 Fourth Supplemental Capital Securities Indenture or the Capital Securities.
| 6 |
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Capital Securities Indenture to be duly executed all as of the date first written above.
| Very truly yours, | ||||
| DEUTSCHE BANK AKTIENGESELLSCHAFT | ||||
| By: | /s/ Jonathan Blake | |||
| Name: | Jonathan Blake | |||
| Title: | Managing Director | |||
| By: | /s/ Thomas Rueckert | |||
| Name: | Thomas Rueckert | |||
| Title: | Vice President | |||
| THE BANK OF NEW YORK MELLON, LONDON BRANCH, as Trustee | ||||
| By: | /s/ Marilyn Chau | |||
| Name: | Marilyn Chau | |||
| Title: | Vice President | |||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Paying Agent, Calculation Agent, Transfer Agent and Registrar and Authenticating Agent | ||||
| By: | /s/ Jeffrey Schoenfeld | |||
| Name: | Jeffrey Schoenfeld | |||
| Title: | Vice President | |||
| By: | /s/ Kathryn Fischer | |||
| Name: | Kathryn Fischer | |||
| Title: | Vice President | |||
| 7 |
Exhibit 4.9(h)
Fifth Supplemental Capital Securities Indenture
DEUTSCHE BANK AKTIENGESELLSCHAFT,
Issuer
AND
THE BANK OF NEW YORK MELLON, LONDON BRANCH,
Trustee
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
Paying Agent, Calculation Agent, Transfer Agent and Registrar and Authenticating Agent
Fifth Supplemental Capital Securities Indenture
Dated as of February 14, 2020
to the Capital Securities Indenture
Dated as of November 6, 2014
Undated Non-cumulative Fixed to Reset Rate
Additional Tier 1 Notes of 2020
TABLE OF CONTENTS
| PAGE | ||||||
| ARTICLE 1 |
DEFINITIONS AND INCORPORATION BY REFERENCE |
2 | ||||
| Section 1.01 |
Definitions |
2 | ||||
| Section 1.02 |
Incorporation by Reference of Trust Indenture Act |
8 | ||||
| Section 1.03 |
Rules of Construction |
8 | ||||
| ARTICLE 2 |
TITLE OF THE PERPNC6 NOTES; SUBORDINATION UNIMPAIRED; |
|||||
| RESOLUTION MEASURES |
9 | |||||
| Section 2.01 |
Title |
9 | ||||
| Section 2.02 |
Subordination Unimpaired |
9 | ||||
| Section 2.03 |
PerpNC6 Notes Subject to Resolution Measures |
9 | ||||
| ARTICLE 3 |
INTEREST ON THE PERPNC6 NOTES |
13 | ||||
| Section 3.01 |
Interest Payment Dates |
13 | ||||
| Section 3.02 |
Rate of Interest |
13 | ||||
| Section 3.03 |
Interest Amount |
15 | ||||
| Section 3.04 |
Notification of Rate of Interest and Interest Amount |
15 | ||||
| Section 3.05 |
Determinations Binding |
15 | ||||
| Section 3.06 |
Accrual of Interest |
15 | ||||
| Section 3.07 |
Day Count Fraction |
16 | ||||
| Section 3.08 |
Cancellation of Interest Payment |
16 | ||||
| ARTICLE 4 |
PAYMENTS ON THE PERPNC6 NOTES | 18 | ||||
| Section 4.01 |
Payment of Principal and Interest |
18 | ||||
| Section 4.02 |
Manner of Payment |
18 | ||||
| Section 4.03 |
Discharge |
18 | ||||
| Section 4.04 |
Payment Date |
18 | ||||
| Section 4.05 |
References to Principal and Interest |
18 | ||||
| Section 4.06 |
Unclaimed Moneys |
19 | ||||
| Section 4.07 |
Registered Owner |
19 | ||||
| Section 4.08 |
No Recourse |
19 | ||||
| Section 4.09 |
Principal on Physical Notes |
19 | ||||
| ARTICLE 5 |
FORM OF PERPNC6 NOTES |
20 | ||||
| Section 5.01 |
Global Securities |
20 | ||||
| Section 5.02 |
Exchange and Transfer |
20 | ||||
| Section 5.03 |
Legends |
21 | ||||
| Section 5.04 |
Book-Entry Provisions for the Global Securities |
23 | ||||
| ARTICLE 6 |
NO SCHEDULE MATURITY; REDEMPTION; WRITE-DOWNS |
24 | ||||
| Section 6.01 |
No Scheduled Maturity |
24 | ||||
| Section 6.02 |
Deposit of Redemption Price |
24 | ||||
| Section 6.03 |
Redemption Conditions |
24 | ||||
| Section 6.04 |
Redemption for Regulatory Reasons |
24 | ||||
i
| Section 6.05 |
Redemption for Reasons of Taxation |
25 | ||||
| Section 6.06 |
Redemption at the Option of the Issuer |
25 | ||||
| Section 6.07 |
Notice |
26 | ||||
| Section 6.08 |
Redemption after Write-Up; Redemption Amount |
26 | ||||
| Section 6.09 |
No Call Right of the Holders |
26 | ||||
| Section 6.10 |
Deemed Agreement to Principal Write-down |
26 | ||||
| Section 6.11 |
Write-down |
27 | ||||
| Section 6.12 |
Nominal Amount and Redemption Amount after Write-down; Write-up |
28 | ||||
| ARTICLE 7 |
PAYING AGENT AND CALCULATION AGENT |
31 | ||||
| Section 7.01 |
Appointment, Specified Office |
31 | ||||
| Section 7.02 |
Variation or Termination of Appointment |
31 | ||||
| Section 7.03 |
Agents of the Issuer |
32 | ||||
| ARTICLE 8 |
ADDITIONAL COVENANTS |
32 | ||||
| Section 8.01 |
Taxation |
32 | ||||
| Section 8.02 |
Written Statement to Trustee |
33 | ||||
| ARTICLE 9 |
FURTHER ISSUES, PURCHASES AND CANCELLATION |
33 | ||||
| Section 9.01 |
Further Issues |
33 | ||||
| Section 9.02 |
Purchases |
34 | ||||
| Section 9.03 |
Cancellation |
34 | ||||
| ARTICLE 10 |
NOTICES |
34 | ||||
| Section 10.01 |
Notices and Demands on Issuer |
34 | ||||
| Section 10.02 |
Notices and Demands on Trustee |
35 | ||||
| Section 10.03 |
Notices and Demands on Agents |
35 | ||||
| Section 10.04 |
Notices to Holders |
35 | ||||
| Section 10.05 |
Failure to Comply with Notice Provisions not an Event of Default |
36 | ||||
| Section 10.06 |
Provision of Notice in Certain Circumstances |
37 | ||||
| Section 10.06 |
Luxembourg Stock Exchange |
37 | ||||
| ARTICLE 11 |
ADDITIONAL TIER 1 CAPITAL |
37 | ||||
| ARTICLE 12 |
NO DEFAULTS EVENTS OF DEFAULT; REMEDIES |
37 | ||||
| Section 12.01 |
No Defaults or Events of Default |
37 | ||||
| Section 12.02 |
No Acceleration |
37 | ||||
| Section 12.03 |
Remedies |
38 | ||||
| Section 12.04 |
Special Record Date |
38 | ||||
| Section 12.05 |
No Other Remedies |
39 | ||||
| ARTICLE 13 |
SATISFACTION AND DISCHARGE OF THE SUPPLEMENTAL CAPITAL SECURITIES INDENTURE; SUPPLEMENTS THERETO | 40 | ||||
| Section 13.01 |
Satisfaction and Discharge of Supplemental Capital Securities Indenture |
40 | ||||
| Section 13.02 |
Amendment to the Capital Securities Indenture |
40 | ||||
| ARTICLE 14 |
APPLICABLE LAW; PLACE OF JURISDICTION; PAYMENTS SUBJECT TO FISCAL LAWS | 41 | ||||
ii
| Section 14.01 |
Applicable Law |
41 | ||||
| Section 14.02 |
Submission to Jurisdiction |
41 | ||||
| Section 14.03 |
Payments Subject to Fiscal Laws |
41 | ||||
| ARTICLE 15 |
MISCELLANEOUS PROVISIONS |
42 | ||||
| Section 15.01 |
Scope of Supplemental Capital Securities Indenture |
42 | ||||
| Section 15.02 |
Provisions of Supplemental Capital Securities Indenture for the Sole Benefit of Parties and Holders of PerpNC6 Notes | 42 | ||||
| Section 15.03 |
Successors and Assigns of Issuer Bound by Supplemental Capital Securities Indenture | 42 | ||||
| Section 15.04 |
Conflict of any Provisions of Supplemental Capital Securities Indenture with Trust Indenture Act | 42 | ||||
| Section 15.05 |
Other Currencies |
42 | ||||
| Section 15.06 |
Counterparts |
43 | ||||
| Section 15.07 |
Effect of Headings |
43 | ||||
| Section 15.08 |
Not Responsible for Recitals or Issuance of PerpNC6 Notes |
43 | ||||
| Section 15.09 |
Waiver of Right to Set-Off |
43 | ||||
EXHIBITS
| EXHIBIT A: | Form of Global Note | |||
| EXHIBIT B: | Form of Trigger Event Notice to DTC and Holders | |||
| EXHIBIT C: | Form of Trigger Event Notice to Trustee and Paying Agent for Informational Purposes | |||
| EXHIBIT D: | Form of Interest Cancellation Notice to DTC and Holders | |||
| EXHIBIT E: | Form of Interest Cancellation Notice to Trustee and Paying Agent for Informational Purposes |
iii
THIS FIFTH SUPPLEMENTAL CAPITAL SECURITIES INDENTURE, dated as of February 14, 2020 among DEUTSCHE BANK AKTIENGESELLSCHAFT (the “Issuer”), THE BANK OF NEW YORK MELLON, LONDON BRANCH, as trustee (the “Trustee”), and DEUTSCHE BANK TRUST COMPANY AMERICAS (“DBTCA”), as Paying Agent, Calculation 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 capital securities indenture, dated as of November 6, 2014 (the “Base Capital Securities 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 capital securities that are intended to qualify as Additional Tier 1 capital (zusätzliches Kernkapital) within the meaning of the CRR (as defined herein) (the “Capital Securities”), a second supplemental capital securities indenture, dated as of July 25, 2019, adding certain provisions to, and modifying certain provisions of, the Base Capital Securities Indenture, and a fourth supplemental capital securities indenture, dated as of February 14, 2020, adding certain provisions to, and modifying certain provisions of, the Base Capital Securities Indenture (references to the “Base Capital Securities Indenture” herein shall mean the Base Capital Securities Indenture as amended by such second capital securities indenture and fourth supplemental capital securities indenture);
WHEREAS, Section 8.01(d) of the Base Capital Securities 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 Capital Securities;
WHEREAS, the Issuer, pursuant to the foregoing authority, proposes in and by this fifth supplemental capital securities indenture (the “Supplemental Capital Securities Indenture” and, together with the Base Capital Securities Indenture, the “Capital Securities Indenture”) to supplement the Base Capital Securities Indenture insofar as it will apply only to the undated non-cumulative fixed to reset rate Additional Tier 1 notes of 2020 (the “PerpNC6 Notes”) issued hereunder (and not to any other series of Capital Securities); and
WHEREAS, all things necessary have been done to make the PerpNC6 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 Capital Securities Indenture a valid agreement of the Issuer, in accordance with their and its terms;
1
NOW, THEREFORE:
In consideration of the premises and the purchases of the PerpNC6 Notes by the holders thereof, the Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the PerpNC6 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 Capital Securities Indenture unless otherwise indicated. For all purposes of this Supplemental Capital Securities Indenture and the PerpNC6 Notes, the following terms are defined as follows:
“Additional Amounts” has the meaning set forth in Section 8.01.
“Additional Tier 1 Capital” means the PerpNC6 Notes and any other instruments that qualify as additional tier 1 capital (zusätzliches Kernkapital) under the CRR.
“Affected Reset Period” has the meaning set forth in Section 3.02(b).
“Agent Members” has the meaning set forth in Section 5.04.
“Agents” means the Paying Agent, Calculation Agent, the Transfer Agent, the Registrar and the Authenticating Agent.
“AT1 Instruments” has the meaning set forth in Section 6.12.
“Authenticating Agent” means DBTCA.
“Authorized Agent” has the meaning set forth in Section 14.02.
“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.
“Available Distributable Items” means, with respect to any payment of interest, the profit (Gewinn) as of the end of the financial year of the Issuer immediately preceding the relevant Interest Payment Date, and for which audited annual financial statements are available, plus (i) any profits carried forward and reserves available for that purpose, minus (ii) any losses carried forward and any profits which are non-distributable pursuant to applicable law or the Articles of Association of the Issuer and any amounts allocated to the non-distributable reserves, in each case with respect to Additional Tier 1 instruments within the meaning of the CRR and pursuant to applicable law and the Articles of Association of the Issuer, provided that such profits, losses and reserves shall be determined on the basis of the unconsolidated financial statements of the Issuer prepared in accordance with accounting principles generally accepted in the
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Federal Republic of Germany as described in the German Commercial Code (Handelsgesetzbuch) and other applicable German law then in effect and not on the basis of its consolidated financial statements.
“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 DBTCA.
“Calculation Period” has the meaning set forth in Section 3.07.
“Code” has the meaning set forth in Section 14.03.
“Common Equity Tier 1 Capital Ratio” has the meaning set forth in Section 6.11.
“competent resolution authority” means any authority with the ability to exercise a Resolution Measure.
“competent supervisory authority” means any authority primarily responsible for the prudential supervision of the Issuer.
“corporation” means any corporation, association, limited liability company, company or business trust.
“CRD ” means Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC, as amended supplemented or replaced from time to time.
“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 the Capital Securities Indenture and the terms of the PerpNC6 Notes shall refer to such amended provisions or successor provisions.
“Day Count Fraction” has the meaning set forth in Section 3.07.
“Depositary” means The Depository Trust Company, its nominees and their respective successors.
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“Determination Date” means, in respect of the Reset Rate to be determined in relation to the period from a Reset Date (inclusive) to the next following Reset Date (exclusive), the second Business Day immediately preceding the Reset Date on which such period commences.
“Distribution” means any kind of payment of dividends or interest.
“Early Redemption Date” means (i) any Business Day falling in the period commencing on (and including) October 30, 2025 and ending on (and including) the First Interest Reset Date and (ii) any Interest Payment Date thereafter.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Existing Rate” has the meaning set forth in Section 3.02(b).
“FATCA” has the meaning set forth in Section 14.03.
“First Interest Reset Date” means April 30, 2026.
“First Early Redemption Date” means October 30, 2025.
“Global Security” has the meaning set forth in Section 5.01.
“H.15” means the weekly statistical release designated as H.15(519), or any successor publication, published by the Board of Governors of the United States Federal Reserve System at http://www.federalreserve.gov/releases/h15/ or any successor site or publication, and ‘‘most recent H.15’’ means, in respect of any Reset Period, the H.15 published closest in time but prior to the close of business on the second Business Day prior to the applicable Reset Date.
“Holder,” “Holder of PerpNC6 Notes” or other similar term means the registered holder of any PerpNC6 Note or, subject to Section 5.04 hereof, any holder of a proportionate co-ownership or other beneficial interest or right in the PerpNC6 Notes.
“Illiquid” means illiquid (zahlungsunfähig) within the meaning of Section 17 of the German Insolvency Code (Insolvenzordnung), as such term is interpreted by the German courts from time to time, which provides that the Issuer is illiquid if it is unable to satisfy its payment obligations as they become due; illiquidity is, as a general rule, to be presumed when the Issuer has ceased to make payments to meet is payment obligations.
“incorporated provision” has the meaning set forth in Section 15.04.
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“Initial Fall-Back Treasury Yield” means the rate specified in the prospectus supplement dated February 11, 2020, relating to the PerpNC6 Notes, and the prospectus dated August 20, 2018, of the Issuer.
“Interest Amount” shall have the meaning set forth in Section 3.03.
“Interest Commencement Date” shall have the meaning set forth in Section 3.01.
“Interest Payment Date” means April 30th in each year.
“Interest Period” means the period from the Interest Commencement Date (inclusive) to the first Interest Payment Date (exclusive) and thereafter from each Interest Payment Date (inclusive) to the next following Interest Payment Date (exclusive).
“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 Capital Securities 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.
“Maximum Distributable Amount” or “MDA” has the meaning set forth in Section 3.08.
“PerpNC6 Note” or “PerpNC6 Notes” has the meaning specified to it in the third recital paragraph of this Supplemental Capital Securities Indenture.
“Overindebted” means overindebted (überschuldet) within the meaning of Section 19 of the German Insolvency Code (Insolvenzordnung), as such term is interpreted by the German courts from time to time, which provides that the Issuer is overindebted if its assets no longer cover its existing liabilities, unless its continuation is nonetheless highly likely under the circumstances.
“Paying Agent” means DBTCA, with respect to payments to be made in U.S. Dollars (or such other currency as to which DBTCA or its agent has agreed to make payments hereunder), or any person authorized by the Issuer in accordance with Section 3.04 of the Base Capital Securities Indenture.
“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Physical Notes” means PerpNC6 Notes issued in definitive, fully registered form without interest coupons.
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“Rate of Interest” has the meaning set forth in Section 3.02.
“Redemption Date,” when used with respect to any PerpNC6 Note to be redeemed, means the date fixed for such redemption by or pursuant to this Supplemental Capital Securities Indenture.
“Redemption Amount” of each PerpNC6 Note, unless previously redeemed in whole or in part or repurchased and cancelled, shall be the initial nominal amount of such PerpNC6 Note, unless such PerpNC6 Note is written down in whole or in part pursuant to a Resolution Measure, in which case the Redemption Amount shall be the nominal amount of the PerpNC6 Note after giving effect to such write-down. In the event that the Issuer redeems the PerpNC6 Notes in accordance with Section 6.04 and Section 6.05, the “Redemption Amount” of each PerpNC6 Note, unless previously redeemed in whole or in part or repurchased and cancelled, shall be the then current nominal amount of such PerpNC6 Note as reduced by any write-downs (including, but not limited to, any write-downs following a Trigger Event, and to the extent not made up for by write-up(s)).
“Redemption Conditions” has the meaning set forth in Section 6.02.
“Registrar” means DBTCA.
“Regular Record Date” has the meaning set forth in Section 3.01(d).
“Relevant Date” means a date on which the payment first becomes due but, if the full amount of the money payable has not been received by the Paying Agent on or before the due date, it means the date on which, the full amount of the money having been so received, notice to that effect shall have been duly given to the Holders by the Issuer pursuant to the terms described under Article 10.
“Replacement Rate” has the meaning set forth in Section 3.02(b).
“Replacement Rate Agent” means the person appointed by the Issuer on or prior to the first Determination Date on which the Treasury Yield cannot be determined by the Calculation Agent pursuant to the methods described in clause (i) or (ii) of the definition of “Treasury Yield”. The Replacement Rate Agent will not be appointed if the Issuer has elected to redeem the Notes in accordance with the Redemption Conditions and provided that no Trigger Event has occurred.
“Reset Date” means the First Interest Reset Date and each subsequent fifth anniversary of such date.
“Reset Rate” means in respect of a Reset Period, the greater of (i) the sum of the Treasury Yield for such Reset Period plus the initial credit spread of 4.524% (the “Spread”) and (ii) zero, as determined by the Calculation Agent; for
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the avoidance of doubt, the Spread represents the initial credit spread to such Treasury Yield, and does not represent any step-up in the interest rate of the PerpNC6 Notes.
“Reset Period” means the period from (and including) the First Interest Reset Date to the fifth anniversary of (but excluding) the First Interest Reset Date and for each successive period from (and including) any subsequent Reset Date to (but excluding) the next succeeding Reset Date.
“Resolution Measure” has the meaning set forth in Section 2.03.
“Special Record Date” has the meaning set forth in Section 12.04.
“Specified Currency” has the meaning set forth in Section 2.01.
“Specified Denomination” has the meaning set forth in Section 2.01.
“Tier 1 Instruments” means capital instruments which, according to the CRR, qualify as common equity Tier 1 capital or Additional Tier 1 Capital.
“Transfer Agent” means DBTCA.
“Treasury Yield” means, in relation to any Reset Period, (i) the rate per annum corresponding to the semi-annual equivalent yield to maturity, that represents the average for the five consecutive New York Business Days ending on and including the applicable Determination Date, appearing in the most recent H.15, and that establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity, for five-year maturities from the next Reset Date, under the caption ‘‘Treasury Constant Maturities’’; or (ii) if there is no such published actively traded U.S. Treasury security with a maturity of five years from the next Reset Date, the rate determined by interpolation between the most recent weekly average yield to maturity for two series of U.S. Treasury securities trading in the public securities market, (A) one maturing as close as possible to, but earlier than, the first Reset Date following the next succeeding Determination Date, and (B) the other maturing as close as possible to, but later than, the first Reset Date following the next succeeding Determination Date, in each case as published in the most recent H.15; or subject to the immediately succeeding paragraph, if the Treasury Yield cannot be determined pursuant to the methods described in clause (i) or (ii) above, the rate equal to the Treasury Yield for the last preceding Reset Period (or, in the case of the first Reset Period, the rate equal to the Initial Fall-Back Treasury Yield), in each case, as determined by the Calculation Agent on the applicable Determination Date.
“Trigger Event” has the meaning set forth in Section 6.11.
“Trust Indenture Act” means the U.S. Trust Indenture Act of 1939, as amended.
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“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 Capital Securities Indenture, and thereafter “Trustee” shall mean such successor Trustee.
“U.S. Dollar” or “USD” 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.
“Write-up Date” has the meaning set forth in Section 6.12.
Section 1.02 Incorporation by Reference of Trust Indenture Act. Whenever this Supplemental Capital Securities Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Supplemental Capital Securities Indenture.
The following Trust Indenture Act terms used in this Supplemental Capital Securities Indenture have the following meanings:
“indenture securities” means the PerpNC6 Notes;
“indenture security holder” means a Holder;
“indenture to be qualified” means the Capital Securities Indenture;
“indenture trustee” or “institutional trustee” means the Trustee; and
“obligor” on the PerpNC6 Notes means the Issuer and any other obligor on the indenture securities.
All other Trust Indenture Act terms used in this Supplemental Capital Securities 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 Capital Securities Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; and
(2) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Supplemental Capital Securities Indenture as a whole and not to any particular Article, Section or other subdivision.
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(b) Capitalized terms used herein but not otherwise defined shall have the meanings assigned to them in the Base Capital Securities Indenture.
(c) To the extent the terms of the Base Capital Securities Indenture are inconsistent with provisions of this Supplemental Capital Securities Indenture, the terms of this Supplemental Capital Securities Indenture shall govern, but only with respect to the PerpNC6 Notes.
ARTICLE 2
TITLE OF THE PerpNC6 NOTES; SUBORDINATION UNIMPAIRED; RESOLUTION MEASURES
Section 2.01 Title. The PerpNC6 Notes shall be known and designated as the “Fixed to Reset Rate Additional Tier 1 Notes of 2020” of the Issuer. The aggregate principal amount of the PerpNC6 Notes that may be authenticated and delivered under this Supplemental Capital Securities Indenture shall not initially exceed $1,250,000,000 (except as otherwise provided in the Capital Securities Indenture). This series of PerpNC6 Notes of the Issuer is being issued in USD (the “Specified Currency”) in the aggregate nominal amount of U.S.$1,250,000,000 (in words: one billion two hundred fifty million U.S. dollars) in minimum denominations of U.S.$ 200,000 and integral multiples of U.S.$ 200,000 in excess thereof (the “Specified Denomination”).
Section 2.02 Subordination Unimpaired. No subsequent agreement may limit the subordination pursuant to the provisions set out in this Supplemental Capital Securities and Article 13 of the Base Capital Securities Indenture or shorten the term of the PerpNC6 Notes or any applicable notice period. If the PerpNC6 Notes are redeemed or repurchased by the Issuer otherwise than in the circumstances described in Section 13.01 of the Base Capital Securities Indenture or as a result of a redemption pursuant to Section 6.04, Section 6.05 or Section 6.06, then the amounts redeemed or paid must be returned to the Issuer irrespective of any agreement to the contrary unless the competent supervisory authority of the Issuer has given its consent to such redemption or repurchase. A termination or redemption of the PerpNC6 Notes pursuant to Article 6 or a repurchase of the PerpNC6 Notes requires, in any event, the prior consent of the competent supervisory authority of the Issuer.
Section 2.03 PerpNC6 Notes Subject to Resolution Measures. By subscribing for or otherwise acquiring the PerpNC6 Notes, the Holders 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.
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(a) Under the relevant resolution laws and regulations as applicable to the Issuer from time to time, the PerpNC6 Notes may be subject to the powers exercised by the competent resolution authority to:
(1) 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 PerpNC6 Notes;
(2) convert the PerpNC6 Notes 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 1 capital (and the issue to or conferral on the holders (including the beneficial owners) of such ordinary shares or instruments); and/or
(3) apply any other resolution measure, including, but not limited to, (i) any transfer of the PerpNC6 Notes to another entity, (ii) the amendment of the terms and conditions of the PerpNC6 Notes or (iii) the cancellation of the PerpNC6 Notes;
(each, a “Resolution Measure”).
The term “group entity” shall mean an entity that is included in the corporate group subject to a Resolution Measure.
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.
For the avoidance of doubt, any non-payment by the Issuer arising out of any such Resolution Measure will not constitute a Non-Payment Event under the terms of the PerpNC6 Notes or the Capital Securities Indenture.
(b) By its acquisition of the PerpNC6 Notes, each Holder shall be deemed irrevocably to have agreed:
(1) 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 PerpNC6 Notes to give effect to any Resolution Measure;
(2) that it will have no claim or other right against the Issuer arising out of any Resolution Measure; and
(3) that the imposition of any Resolution Measure will not constitute a default or an event of default under (i) the PerpNC6 Notes, (ii) the Capital Securities Indenture, or (iii) for the purpose of, but only to
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extent permitted by the Trust Indenture Act (including, without limitation, Section 315(b) (Notice of Defaults) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act).
(a) The terms and conditions of the PerpNC6 Notes shall continue to apply in relation to the residual principal amount of, or outstanding amount payable in respect of, the PerpNC6 Notes, subject to any modification of the amount of interest payable 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.
(b) No repayment of the then-current principal amount of the PerpNC6 Notes or payment of interest 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.
(c) By its acquisition of the PerpNC6 Notes, each Holder 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 PerpNC6 Notes.
(d) Upon the imposition of a Resolution Measure by the competent resolution authority with respect to the PerpNC6 Notes, the Issuer shall provide a written notice directly to the Holders in accordance with Article 10 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 Paying Agent for information purposes. Any delay or failure by the Issuer to give notice shall not affect the validity and enforceability of any Resolution Measure nor the effects thereof on the PerpNC6 Notes.
(e) If the Issuer has elected to redeem any PerpNC6 Notes but at any time prior to the payment of the redemption amount (i) the competent resolution authority has imposed a Resolution Measure with respect to the PerpNC6 Notes, (ii) a Trigger Event has occurred, (ii) the Issuer is either Overindebted or Illiquid, or (iii) the Issuer would become Overindebted or Illiquid immediately following the payment of the redemption amount, then the
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relevant redemption notice shall be automatically rescinded and shall be of no force and effect, and no payment of the redemption amount will be due and payable.
(f) 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 PerpNC6 Notes under Section 5.09 of the Base Capital Securities Indenture, which section authorizes Holders of a majority in aggregate outstanding principal amount of the PerpNC6 Notes to direct certain actions relating to the PerpNC6 Notes, and if any such direction was previously given under Section 5.09 of the Base Capital Securities Indenture to the Trustee by the Holders, it shall automatically cease to be effective, be null and void and have no further effect. The Capital Securities Indenture shall impose no duties upon the Trustee or the Agents whatsoever with respect to the imposition of any Resolution Measure by the competent resolution authority. Notwithstanding the foregoing, if, following the completion of the imposition of a Resolution Measure by the competent resolution authority, the PerpNC6 Notes remain outstanding (for example, if the imposition of a Resolution Measure results in only a partial write-down of the principal of the PerpNC6 Notes), then the Trustee’s and the Paying Agent’s duties under the Capital Securities Indenture shall remain applicable with respect to the PerpNC6 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 a supplemental indenture is not necessary.
(g) By its acquisition of the PerpNC6 Notes, each Holder 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 PerpNC6 Notes and (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 PerpNC6 Notes as it may be imposed, without any further action or direction on the part of such Holders, the part of the Trustee or the part of the Agents.
(h) If the competent resolution authority imposes a Resolution Measure with respect to less than the total outstanding principal amount of the PerpNC6 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 PerpNC6 Notes pursuant to the Resolution Measure will be made on a substantially pro rata basis among the PerpNC6 Notes.
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(i) The Issuer’s obligations to indemnify the Trustee and the Agents in accordance with the Section 6.02 and Section 6.06 of the Base Capital Securities Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the PerpNC6 Notes. For the avoidance of doubt, any and all amounts due and owing to the Trustee under any provision of the Capital Securities Indenture shall be payable within six (6) days of the date specified for payment or where no date is specified, the date on which the Trustee demands payment in accordance with the applicable provision of the Capital Securities Indenture.
ARTICLE 3
INTEREST ON THE PERPNC6 NOTES
Section 3.01 Interest Payment Dates.
(a) Subject to a cancellation of interest payments pursuant to Section 3.08 and a write-down pursuant to Section 6.11 and Section 6.12, the PerpNC6 Notes shall bear interest on their aggregate nominal amount in the period (each, an “Interest Period”) from February 14, 2020 (the “Interest Commencement Date”) (inclusive) to the first Interest Payment Date (exclusive), and thereafter from each Interest Payment Date (inclusive) to the next following Interest Payment Date (exclusive). The initial Interest Period shall be a short interest accrual period. In the event of a write-down pursuant to Section 6.11, the PerpNC6 Notes shall for the full respective Interest Period in which such write-down occurs only bear interest on the aggregate nominal amount which has been reduced accordingly; a potential write-up pursuant to Section 6.12 which may occur on the relevant Interest Payment Date will not be taken into account for such Interest Period and will only become effective from the Interest Period commencing on the Interest Payment Date on which the write-up occurs.
(b) The first Interest Payment Date is April 30, 2020.
(c) If any Interest Payment Date would otherwise fall on a day which is not a Business Day, it shall be postponed to the next day which is a Business Day. Holders shall not be entitled to further interest or other payment in respect of such postponement.
(d) A Holder of a PerpNC6 Note at the close of business on the Business Day immediately preceding an Interest Payment Date (the “Regular Record Date”) shall be entitled to receive interest payable pursuant to Section 3.02 on such PerpNC6 Note on the corresponding Interest Payment Date.
Section 3.02 Rate of Interest. Unless expressly provided otherwise below, the Rate of Interest (the “Rate of Interest”) for any Interest Period shall be
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(a) for the period from the Interest Commencement Date (inclusive) to the First Interest Reset Date (exclusive) a fixed rate of 6.000 per cent. per annum, and
(b) for the period from the First Interest Reset Date (inclusive) the Reset Rate, per annum.
Notwithstanding the foregoing, if the Treasury Yield cannot be determined by the Calculation Agent for any Reset Period (such Reset Period, the “Affected Reset Period”) pursuant to the methods described in the definition of “Treasury Yield”, then the Replacement Rate Agent will determine in its sole discretion (acting in good faith and in a commercially reasonable manner) whether to use an alternative rate for purposes of determining the Treasury Yield for the Affected Reset Period and each Reset Period thereafter. If the Replacement Rate Agent determines to use an alternative rate pursuant to the immediately preceding sentence, it shall select such rate that it has determined in its sole discretion (acting in good faith and in a commercially reasonable manner) is most comparable to the rate described in clause (i) in the definition of “Treasury Yield” (the “Existing Rate”), provided that if it determines that there is an appropriate industry-accepted successor rate to the Existing Rate, it shall use such industry-accepted successor rate. If the Replacement Rate Agent has determined an alternative rate in accordance with the foregoing (such rate, the “Replacement Rate”), for purposes of determining the Treasury Yield, (i) the Replacement Rate Agent shall in its sole discretion (acting in good faith and in a commercially reasonable manner) determine (A) the method for obtaining the Replacement Rate (including any alternative method for determining the Replacement Rate if such alternative rate is unavailable on the relevant Determination Date), which method shall be consistent with industry-accepted practices for the Replacement Rate, and (B) any adjustment factor as may be necessary to make the Replacement Rate comparable to the Existing Rate consistent with industry-accepted practices for the Replacement Rate, (ii) references to the Treasury Yield herein shall be deemed to be references to the Replacement Rate, including any alternative method for determining such rate and any adjustment factor as described in sub-clause (i) above, (iii) if the Replacement Rate Agent in its sole discretion (acting in good faith and in a commercially reasonable manner) determines that changes to the definitions of Business Day, Day Count Fraction or Determination Date are necessary in order to implement the Replacement Rate as the Treasury Yield, such definitions shall be deemed to have been amended for the purposes of this Fifth Supplemental Capital Securities Indenture and the PerpNC6 Notes, to reflect such implementation, and (iv) the Issuer shall give notice as soon as practicable to the holders in accordance with the Capital Securities Indenture and each of the Paying Agents specifying the Replacement Rate, as well as the details described in sub-clause (i) above and the amendments implemented pursuant to the Capital Securities Indenture.
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By its acquisition of the PerpNC6 Notes, each Holder shall be deemed irrevocably to have agreed and, subject to Sections 6.10 and 6.11, does agree:
(a) to be bound by the Replacement Rate Agent’s determination of the Existing Rate or Replacement Rate, including without the need for the Issuer to obtain any further consent from such Holder;
(b) to waive any and all claims, in law and/or in equity, against the Trustee, Calculation Agent or the Replacement Rate Agent;
(c) not to initiate a suit against the Trustee, the Calculation Agent or the Replacement Rate Agent in respect of, and that none of the Trustee, the Calculation Agent or the Replacement Rate Agent will be liable for, the determination of or the failure to determine any Reset Rate, Existing Rate or Replacement Rate.
Section 3.03 Interest Amount. The Calculation Agent will, forthwith after the determination of the Reference Rate, determine the applicable Rate of Interest and calculate the amount of interest payable on the PerpNC6 Notes in respect of the Specified Denomination (subject to Section 6.11) (the “Interest Amount”) for the relevant Interest Periods. The Interest Amount shall be calculated by applying the Rate of Interest and the Day Count Fraction to the Specified Denomination and rounding the resultant figure to the nearest unit of the Specified Currency, with 0.5 of such unit being rounded upwards.
Section 3.04 Notification of Rate of Interest and Interest Amount. The Calculation Agent will cause the Rate of Interest and the Interest Amount for the Interest Periods up to the next Reset Date to be notified (i) to the Issuer, to the Paying Agent, to the other Agents, to the Trustee and to the Holders in accordance with Article 10 as soon as possible after their determination, but in no event later than the fourth Business Day thereafter and (ii), if required by the rules of any stock exchange on which the PerpNC6 Notes are listed from time to time at the request of the Issuer, to such stock exchange as soon as possible after their determination, but in no event later than the first day of the Interest Period in relation to which the relevant Rate of Interest and the relevant Interest Amount applies.
Section 3.05 Determinations Binding. All certificates, communications, opinions, determinations, calculations, quotations and decisions given, expressed, made or obtained for the purposes of the provisions of this Article 3 by the Calculation Agent shall (in the absence of manifest error) be binding on the Issuer, the Paying Agent and the Holders.
Section 3.06 Accrual of Interest. The PerpNC6 Notes shall cease to bear interest from the beginning of the day on which they are due for redemption. If the Issuer shall fail to redeem the PerpNC6 Notes when due, interest shall continue to accrue on the outstanding aggregate nominal amount of the PerpNC6 Notes from the due date (inclusive) to the date of actual redemption of the PerpNC6 Notes (exclusive) at the default rate of interest established by law.
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Section 3.07 Day Count Fraction. “Day Count Fraction” means with regard to the calculation of an Interest Amount on the PerpNC6 Notes for any period of time (the “Calculation Period”) the number of days in the Calculation Period divided by the actual number of days in the respective interest year (i.e. from April 30th (inclusive) in any year to the next April 30th (exclusive)).
Section 3.08 Cancellation of Interest Payment
(a) Interest on the PerpNC6 Notes shall only be or become due and payable on an Interest Payment Date to the extent it has not been cancelled or deemed cancelled (in each case, in whole or in part) in accordance with the provisions set forth in this Section 3.08. To the extent any payment of interest that would otherwise have been paid has been cancelled or deemed cancelled, then the interest that would otherwise have been payable absent such cancellation shall not be due and payable and no Holder shall have any claim whatsoever in respect thereof. In addition, principal, interest or other amounts on the PerpNC6 Notes shall only be or become due and payable to the extent that such amounts are not subject to any Resolution Measure. Any interest, principal or other amounts so cancelled or deemed cancelled (in each case, in whole or in part) pursuant to such sections shall not be due and shall not accumulate or be payable at any time thereafter, and Holders shall have no rights thereto or in connection therewith or any claim therefor and shall not be entitled to any additional interest or compensation as a result of or in connection with such cancellation or deemed cancellation. For the avoidance of doubt, any such cancellation or deemed cancellation (in whole or in part) will not constitute a Non-Payment Event under the terms of the PerpNC6 Notes or the Capital Securities Indenture.
By its acquisition of the PerpNC6 Notes, each Holder shall be deemed irrevocably to have agreed that:
(1) subject to Section 6.10, interest is due and payable in respect of any period only if and to the extent that the Issuer has not exercised its sole discretion to cancel such payment, and no amount of interest shall become due and payable in respect of any such period to the extent that it has been (x) cancelled (in whole or in part) by the Issuer at the Issuer’s sole discretion pursuant to Section 3.08(b), (y) cancelled (in whole or in part) pursuant to a Resolution Measure and/or (z) deemed cancelled (in whole or in part) pursuant to Section 3.08(c);
(2) a cancellation or deemed cancellation of interest (in each case, in whole or in part) in accordance with the terms hereof and of the Capital Securities Indenture shall not constitute a default in payment or otherwise constitute a default under, or a breach of, the terms of the PerpNC6 Notes or the Capital Securities Indenture; and
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(3) subject to Section 3.08(a), interest, principal or other amounts on the PerpNC6 Notes shall only be or become due and payable in accordance with this Section 3.08(a).
(b) The Issuer has the right, to cancel all or part of any payment of interest in its sole discretion and at any time. If the Issuer makes use of such right, it shall give notice to the Holders in accordance with Article 10 without undue delay, but no later than on the relevant Interest Payment Date. Any failure to give such notice shall not affect the validity of the cancellation and shall not constitute a default for any purpose. A notice which has not been given until the relevant Interest Payment Date shall be given without undue delay thereafter. Interest that is cancelled will not be due and will not accumulate or be payable at any time thereafter.
(c) Payment of interest on the PerpNC6 Notes for the relevant Interest Period shall be excluded and cancelled (without prejudice to the exercise of sole discretion pursuant to Section 3.08(b)):
(1) to the extent that such payment of interest together with any additional Distributions plus any write-ups in accordance with the terms of the PerpNC6 Notes or in respect of other Additional Tier 1 Instruments that are simultaneously planned or made or that have been made by the Issuer in the Issuer’s then current financial year on other capital instruments which, according to the CRR, qualify as Tier 1 instruments of the Issuer would exceed the Available Distributable Items provided that, for such purpose, the Available Distributable Items shall be increased by (i) an amount equal to what has been accounted for as expenses for Distributions in respect of Tier 1 Instruments (including payments of interest on the PerpNC6 Notes) in the determination of the profit (Gewinn) on which the Available Distributable Items are based and (ii) any supplemental amounts that may be included for the purposes of determining the amounts distributable on Additional Tier 1 instruments under the bank regulatory capital rules applicable to the Issuer from time to time; or
(2) if and to the extent that the competent supervisory authority orders that all or part of the relevant payment of interest be cancelled or another prohibition of Distributions is imposed by law or an authority (including (i) a prohibition of Distributions in connection with the calculation of the maximum distributable amount within the meaning of Article 141(2) of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms,
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amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (such Directive, as amended, supplemented or replaced from time to time, the “CRD”)) and as currently transposed into German law by Section 10i of the German Banking Act (such amount, the “Maximum Distributable Amount” or “MDA”), and upon their transposition into German law, (ii) a prohibition of Distributions in connection with the calculation of the leverage ratio related maximum distributable amount (“L-MDA”) pursuant to Article 141b(2) of the CRD, and (iii) the maximum distributable amount related to the minimum requirement for own funds and eligible liabilities (“M-MDA”) pursuant to Article 16a(1) of Directive 2014/59/EU of the European Parliament and of the Council of May 15, 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms (including any provisions of regulatory law supplementing this Directive)(such Directive, as amended or replaced from time to time, the “BRRD”)).
(d) The Issuer has the right to use the funds from cancelled payments of interest without restrictions for the fulfilment of its own obligations when due. To the extent that payments of interest are cancelled, such cancellation includes all Additional Amounts payable pursuant to Section 8.01. Any payments of interest which have been cancelled will not be made or compensated at any later date.
ARTICLE 4
PAYMENTS ON THE PERPNC6 NOTES
Section 4.01 Payment of Principal and Interest. Any payments of principal of and interest to be made on the Global Securities 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 Capital Securities Indenture).
Section 4.02 Manner of Payment. Subject to applicable fiscal and other laws and regulations, payments of amounts due in respect of the PerpNC6 Notes shall be made in the Specified Currency.
Section 4.03 Discharge. The Issuer shall be discharged by payment to, or to the order of, the Depositary.
Section 4.04 Payment Date. If the date for payment of principal in respect of any PerpNC6 Note is not a Business Day then the Holders shall not be entitled to payment until the next Business Day and shall not be entitled to further interest or other payment in respect of such delay.
Section 4.05 References to Principal and Interest. Reference in the PerpNC6 Notes to principal in respect of the PerpNC6 Notes shall be deemed to include, as applicable, the following amounts: the Redemption Amount of the
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PerpNC6 Notes, any premium and any other amounts which may be payable under or in respect of the PerpNC6 Notes. Reference in the terms and conditions of the PerpNC6 Notes to interest in respect of the PerpNC6 Notes shall be deemed to include, as applicable, any Additional Amounts payable pursuant to Section 8.01.
Section 4.06 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 PerpNC6 Notes that remain unclaimed at the end of two years after such principal, interest or premium shall have become due and payable (whether upon call for redemption or otherwise), (i) the Trustee or such Paying Agent shall notify the Holders 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 PerpNC6 Notes as the same shall become due.
Section 4.07 Registered Owner. Prior to due presentment of any PerpNC6 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 the PerpNC6 Notes are registered as the owner hereof for all purposes, whether or not the PerpNC6 Notes be overdue, and none of the Issuer, the Trustee or any such agent shall be affected by notice to the contrary.
Section 4.08 No Recourse. No recourse shall be had for the payment of the principal of, premium, if any, or the interest on the PerpNC6 Notes, for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Capital Securities 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.
Section 4.09 Principal on Physical Notes. 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 on 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 PerpNC6 Notes. A holder of U.S. $10,000,000 or more in aggregate principal amount of PerpNC6 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 on any date of redemption or
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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.
ARTICLE 5
FORM OF PERPNC6 NOTES
Section 5.01 Global Securities.
(a) Except as otherwise provided pursuant to this Article 5, the PerpNC6 Notes are being issued in fully registered, global form without coupons in substantially the form of Exhibit A hereto (each, a “Global Security”), each of which representing a maximum of U.S. $500,000,000 principal amount of all such PerpNC6 Notes that have the same original issue date and other terms, with such applicable legends as are provided for in Section 5.02. The PerpNC6 Notes are not issuable in bearer form or with detachable coupons. The terms and provisions contained in the form of PerpNC6 Notes shall constitute, and are hereby expressly made, a part of this Supplemental Capital Securities Indenture and to the extent applicable, the Issuer and the Trustee, by their execution and delivery of this Supplemental Capital Securities Indenture, expressly agree to such terms and provisions and to be bound thereby. Any of the PerpNC6 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 Capital Securities Indenture and the Base Capital Securities 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 PerpNC6 Notes may be listed or designated for issuance, or to conform to usage.
(b) Each Global Security shall be duly executed by the Issuer and authenticated and delivered by the Trustee and shall be registered in the name of the Depositary or its nominee and retained by the Registrar, as custodian, at its Corporate Trust Office. The aggregate principal amount of each Global Security 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.
Section 5.02 Exchange and Transfer. DBTCA has been appointed Registrar and Transfer Agent for the PerpNC6 Notes, and DBTCA will maintain at its office in The City of New York a register for the registration and transfer of PerpNC6 Notes. The PerpNC6 Notes may be transferred at either the aforesaid New York office of DBTCA by surrendering the PerpNC6 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 hereof in person or by the Holder’s attorney duly authorized in writing, and thereupon the Registrar
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shall issue in the name of the transferee or transferees, in exchange herefor, a new PerpNC6 Note or PerpNC6 Notes having identical terms and provisions and having a like aggregate principal amount in authorized denominations, subject to the terms and conditions of the PerpNC6 Notes set forth herein; provided, however, that the Registrar will not be required (i) to register the transfer of or exchange any PerpNC6 Note that has been called for redemption in whole or in part, except the unredeemed portion of PerpNC6 Notes being redeemed in part, (ii) to register the transfer of or exchange any PerpNC6 Note if the Holder thereof has exercised his right, if any, to require the Issuer to repurchase such PerpNC6 Note in whole or in part, except the portion of such PerpNC6 Note not required to be repurchased, or (iii) to register the transfer of or exchange PerpNC6 Notes to the extent and during the period so provided in the Capital Securities Indenture with respect to the redemption of PerpNC6 Notes. PerpNC6 Notes are exchangeable at said offices for other PerpNC6 Notes of other authorized denominations of equal aggregate principal amount having identical terms and provisions. All such registrations, exchanges and transfers of PerpNC6 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 PerpNC6 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 PerpNC6 Note delivered upon any exchange or transfer of PerpNC6 Notes shall be such that no gain or loss of interest results from such exchange or transfer.
Section 5.03 Legends. Each Global Security 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 PERPNC6 NOTES REPRESENTED HEREBY).
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS PERPNC6 NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A
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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 PERPNC6 NOTE IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT AT THE TIME OF ITS ACQUISITION AND THROUGHOUT THE PERIOD THAT IT HOLDS THIS PERPNC6 NOTE OR ANY INTEREST HEREIN (1) EITHER (A) IT IS NOT, AND IT IS NOT ACTING ON BEHALF OF (AND FOR SO LONG AS IT HOLDS SUCH PERPNC6 NOTE OR ANY INTEREST THEREIN IT WILL NOT BE, AND WILL NOT BE ACTING ON BEHALF OF), AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE UNITED STATES EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)), SUBJECT TO THE PROVISIONS OF PART 4 OF SUBTITLE B OF TITLE I OF ERISA, A PLAN TO WHICH SECTION 4975 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, (“CODE”), APPLIES, OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF SUCH AN EMPLOYEE BENEFIT PLAN’S AND/OR PLAN’S INVESTMENT IN SUCH ENTITY (EACH, A “BENEFIT PLAN INVESTOR”), OR A GOVERNMENTAL, CHURCH OR NON-U.S. PLAN WHICH IS SUBJECT TO ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND/OR SECTION 4975 OF THE CODE (“SIMILAR LAWS”), AND NO PART OF THE ASSETS USED BY IT TO ACQUIRE OR HOLD THIS PERPNC6 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 PERPNC6 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” OR EQUIVALENT UNDER SIMILAR LAWS) WITH RESPECT TO THE PURCHASER OR HOLDER IN CONNECTION WITH ANY PURCHASE OR HOLDING OF THE PERPNC6 NOTES, OR AS A RESULT OF ANY EXERCISE BY THE ISSUER OR ANY OF ITS AFFILIATES OF ANY RIGHTS IN CONNECTION WITH THE PERPNC6 NOTES, AND NO ADVICE PROVIDED BY THE ISSUER OR ANY OF ITS AFFILIATES HAS
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FORMED A PRIMARY BASIS FOR ANY INVESTMENT DECISION BY OR ON BEHALF OF THE PURCHASER AND HOLDER IN CONNECTION WITH THE PERPNC6 NOTES AND THE TRANSACTIONS CONTEMPLATED WITH RESPECT TO THE PERPNC6 NOTES; AND (3) IT WILL NOT SELL OR OTHERWISE TRANSFER THIS PERPNC6 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 PERPNC6 NOTE.
Section 5.04 Book-Entry Provisions for the Global Securities.
(a) The Global Securities initially shall:
(1) be initially registered in the name of the Depositary (or a nominee thereof); and
(2) be delivered to the Registrar as custodian for such Depositary.
Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under the PerpNC6 Notes or the Capital Securities Indenture with respect to any Global Security held on their behalf by the Depositary, or the Registrar as its custodian, or under such Global Security, 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 Security for all purposes whatsoever. Notwithstanding the foregoing, nothing contained herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and the Agent Members, the operation of customary practices governing the exercise of the rights of any Holder.
(b) The Holder of a Global Security 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 Capital Securities Indenture, the Base Capital Securities Indenture or the PerpNC6 Notes.
(c) A Global Security 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 Security may be transferred in accordance with the rules and procedures of the Depositary.
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(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 Securities, or the Depositary ceases to be a “clearing agency” registered under the Exchange Act and a successor depositary for the Global Securities is not appointed by the Issuer within 90 days of such notice or cessation, the Depositary shall surrender such Global Security or Global Securities 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 PerpNC6 Notes, shall authenticate and deliver, in exchange for such Global Security or Global Securities, Physical Notes in an aggregate principal amount equal to the aggregate principal amount of such Global Security or Global Securities. Such Physical Notes shall be registered in such names as the Depositary shall identify in writing as the beneficial owners of the PerpNC6 Notes represented by such Global Security or Global Securities (or any nominee thereof).
(e) Notwithstanding the foregoing, in connection with any transfer of beneficial interests in a Global Security to the beneficial owners thereof pursuant to Section 5.04(d), the Registrar shall reflect on its books and records the date and a decrease in the principal amount of such Global Security in an amount equal to the principal amount of the beneficial interests in such Global Security to be transferred.
ARTICLE 6
NO SCHEDULED MATURITY; REDEMPTION; WRITE-DOWNS
Section 6.01 No Scheduled Maturity. The PerpNC6 Notes have no scheduled maturity date.
Section 6.02 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 PerpNC6 Notes to be redeemed on that Redemption Date and accrued and unpaid interest, if any, on such PerpNC6 Notes.
Section 6.03 Redemption Conditions. The Issuer may redeem the PerpNC6 Notes only if (i) no Trigger Event has occurred and is continuing, (ii) the Issuer is neither Overindebted nor Illiquid on the date of redemption, and (iii) the Issuer would not become Overindebted or Illiquid immediately following the payment of the redemption amount ((i) to (iii) together, the “Redemption Conditions”); Section 41 of the German Insolvency Code (relating to immature claims) remains unaffected.
Section 6.04 Redemption for Regulatory Reasons. Subject to the Redemption Conditions, the Issuer may redeem the PerpNC6 Notes, in whole but not in part, with the prior approval of the Issuer’s competent supervisory
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authority, at any time if there is a change in the regulatory classification of the PerpNC6 Notes that would likely result in (i) their exclusion in full or in part from the Issuer’s own funds within the meaning of the CRR (other than as a consequence of a write-down or conversion, as the case may be) or (ii) their reclassification as a lower quality form of the Issuer’s own funds than their classification at the time of their issuance, but only if the conditions of Article 78(4)(a) of the CRR are met, pursuant to which the Issuer’s competent supervisory authority may approve such a redemption if (a) it considers the change in the regulatory classification to be sufficiently certain and (b) the Issuer demonstrates to the satisfaction of the competent supervisory authority that the regulatory reclassification of the PerpNC6 Notes was not reasonably foreseeable at the time of their issuance. Such redemption shall be made upon not less than 30 and not more than 60 days’ prior notice of redemption at their Redemption Amount together with interest (if any, and subject to a cancellation of the interest payment pursuant to Section 3.08) accrued to (and excluding) the date fixed for redemption.
Section 6.05 Redemption for Reasons of Taxation. Subject to the Redemption Conditions, the Issuer may redeem the PerpNC6 Notes, in whole but not in part, with the prior approval of the Issuer’s competent supervisory authority, if the tax treatment of the PerpNC6 Notes changes, due to a change in applicable legislation, including a change in any fiscal or regulatory legislation, rules or practices, which takes effect after the time of their issuance (including but not limited to the tax deductibility of interest payable on the PerpNC6 Notes or the obligation to pay Additional Amounts) and the conditions of Article 78(4)(b) of the CRR are met, pursuant to which the Issuer’s competent supervisory authority may approve such redemption if there is a change in the applicable tax treatment of the PerpNC6 Notes that the Issuer has demonstrated to the satisfaction of the competent supervisory authority is material and was not reasonably foreseeable at the time of their issuance. Such redemption shall be made upon not less than 30 and not more than 60 days’ prior notice of redemption at their Redemption Amount together with interest (if any, and subject to a cancellation of the interest payment pursuant to Section 3.08) accrued to (and excluding) the date fixed for redemption.
Section 6.06 Redemption at the Option of the Issuer. Subject to the Redemption Conditions, the Issuer may redeem the PerpNC6 Notes, in whole but not in part, with the prior approval of the Issuer’s competent supervisory authority, upon not less than 30 days’ notice of redemption with effect as of the Early Redemption Date at their Redemption Amount together with interest (if any, and subject to a cancellation of the interest payment pursuant to Section 3.08) accrued to (and excluding) the Early Redemption Date. The Issuer may exercise its redemption right pursuant to this Section 6.06 only if any write-downs following a Trigger Event have been fully written up.
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Section 6.07 Notice. Notice pursuant to Section 6.04, Section 6.05 and Section 6.06 shall be given in accordance with Article 10 to the Holders, the Agents and the Trustee. Such notice shall state the date fixed for redemption and, in the case of a notice pursuant to Section 6.04 or Section 6.05, the reason for the redemption. If the Issuer has elected to redeem the PerpNC6 Notes but at any time prior to the payment of the Redemption Amount (i) the competent resolution authority has imposed a Resolution Measure with respect to the PerpNC6 Notes, (ii) a Trigger Event has occurred, (iii) the Issuer is either Overindebted or Illiquid, or (iv) the Issuer would become Overindebted or Illiquid immediately following the payment of the Redemption Amount, then the relevant redemption notice shall be automatically rescinded and shall be of no force and effect, and no payment of the Redemption Amount will be due and payable. The Issuer shall promptly notify the Holders, the Trustee and the Agents if a redemption notice is rescinded because of an event set forth in (i) to (iv) of the previous sentence, provided that such notice will not be a precondition for the invalidity of a redemption notice.
Section 6.08 Redemption after Write-Up; Redemption Amount. The Issuer may exercise its ordinary redemption rights pursuant to Section 6.06 only if any write-downs pursuant to Section 6.11 have been fully written up. However, if any PerpNC6 Note is written down in whole or in part pursuant to a Resolution Measure, the Issuer shall be permitted to exercise its ordinary redemption right pursuant to Section 6.06 without subsequently writing up any such write-down.
Otherwise, the exercise of the redemption rights pursuant to Section 6.04, Section 6.05 and Section 6.06 shall be at the sole discretion of the Issuer (subject to the prior approval of the Issuer’s competent supervisory authority). No Holder shall have any claim against the Issuer in connection with or arising out of the reduction of the Redemption Amount in connection with any write-down under Section 6.11 or any Resolution Measure.
Section 6.09 No Call Right of the Holders. The Holders have no right to call the PerpNC6 Notes for redemption.
Section 6.10 Deemed Agreement to Principal Write-down. By its acquisition of the PerpNC6 Notes, each Holder shall be deemed irrevocably to have agreed, subject to Section 3.08(a), that: (i) subject to Section 3.08(a), interest is not due and payable on any portions of the aggregate nominal amount of the PerpNC6 Notes written down pursuant to Section 6.11 (to the extent not subsequently written up pursuant to Section 6.12), (ii) a write down of the nominal amount of the PerpNC6 Notes (in whole or in part) in accordance with the terms hereof and of the Capital Securities Indenture shall not constitute a default in payment or otherwise constitute a default under, or a breach of, the terms of the PerpNC6 Notes or the Capital Securities Indenture; and subject to Section 3.08(a), interest or principal on the PerpNC6 Notes shall only be or
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become due and payable on an Interest Payment Date or other relevant date to the extent the nominal amount of the PerpNC6 Notes at the time of such payment has not been written down in accordance with Section 6.11 (in whole or in part, and to the extent not subsequently written up pursuant to Section 6.12). Any interest, principal or other amounts unpaid as a result of a write-down (in whole or in part) in accordance with Section 6.11 shall not be due and shall not accumulate or be payable at any time thereafter, and pursuant to the terms of the PerpNC6 Notes, Holders shall have no rights thereto or in connection therewith or any claim therefor and shall not be entitled to any additional interest or compensation as a result of or in connection with such write-down. For the avoidance of doubt, any write-down (in whole or in part) pursuant to Section 6.11 shall not constitute a Non-Payment Event under the terms of the PerpNC6 Notes or the Capital Securities Indenture.
Section 6.11 Write-down. Upon the occurrence of a Trigger Event, the Redemption Amount and the nominal amount of each PerpNC6 Note shall be reduced by the amount of the relevant write-down.
A “Trigger Event” shall occur, if at any time, the Common Equity Tier 1 capital ratio pursuant to Article 92 (1) (a) of the CRR or any successor provision, determined on a consolidated basis (the “Common Equity Tier 1 Capital Ratio”), falls below 5.125 per cent. Whether a Trigger Event has occurred shall be determined by the Issuer, the Issuer’s competent supervisory authority or any agent appointed for such purpose by the Issuer’s competent supervisory authority and such determination shall be binding on the Holders.
Upon the occurrence of a Trigger Event, a write-down shall be effected pro rata with all of the Issuer’s other instruments issued as Additional Tier 1 capital within the meaning of the CRR, the terms of which provide for a write-down (whether permanent or temporary) upon the occurrence of the Trigger Event. For such purpose, the total amount of the write-downs to be allocated pro rata shall be equal to the amount required to restore fully the Common Equity Tier 1 Capital Ratio of the Issuer to 5.125 per cent. but shall not exceed the sum of the nominal amounts of the relevant instruments outstanding at the time of occurrence of the Trigger Event. The performance of any write-downs in respect of the PerpNC6 Notes shall not be dependent on the effectiveness of a write-down or conversion of the instruments.
The sum of the write-downs to be effected with respect to the PerpNC6 Notes shall be limited to the outstanding aggregate nominal amount of the PerpNC6 Notes at the time of occurrence of the relevant Trigger Event.
Upon the occurrence of a Trigger Event, the Issuer shall:
(a) inform the competent supervisory authority that is responsible for the Issuer and, in accordance with Article 10, provide notice to the Trustee, the
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Agents and the Holders of the PerpNC6 Notes without undue delay about the occurrence of such Trigger Event and the fact that a write-down will have to be effected, and
(b) determine the write-down to be effected without undue delay, but not later than within one month (unless the competent supervisory authority of the Issuer shortens such period), and notify such write-down (i) to the competent supervisory authority, (ii) to the Holders of the PerpNC6 Notes in accordance with Article 10, (iii) to the Calculation Agent and the Paying Agent, the other Agents and the Trustee and (iv), if required by the rules of any stock exchange on which the PerpNC6 Notes are listed from time to time at the request of the Issuer, to such stock exchange.
The write-down shall be deemed to be effected at the time when the notices pursuant to (a) and (b) above are given and the nominal amount of each PerpNC6 Note (including the Redemption Amount) in the Specified Denomination shall be deemed to be reduced at such time by the amount of such write-down. Any failure to give such notice shall not affect the effectiveness of, or otherwise invalidate, any write-down. A notice which has not been given shall be given without undue delay. To the extent that the write-down of any of the Issuer’s other Additional Tier 1 instruments is not effective for any reason, (i) the ineffectiveness of any such write-down shall not prejudice the requirement to effect a write-down of the PerpNC6 Notes and (ii) the ineffective write-down shall not be taken into account in determining the write-down amount of the PerpNC6 Notes.
In each case, the notice pursuant to this Section 6.11(b) shall specify the amount of the write-down and the date the write-down of the PerpNC6 Notes will be (or is expected to be) effected.
A Trigger Event may occur on more than one occasion and the PerpNC6 Notes may be written down on more than one occasion.
Section 6.12 Nominal Amount and Redemption Amount after Write-down; Write-up. After a write-down has been effected, the nominal amount and the Redemption Amount of each PerpNC6 Note, unless previously redeemed or repurchased and cancelled, may be written up in accordance with the following provisions of Section 6.12 in each of the financial years of the Issuer subsequent to the occurrence of such write-down until the full initial nominal amount has been reached, to the extent that a corresponding annual profit (Jahresüberschuss, calculated in accordance with German law and accounting principles) is recorded and the write-up will not give rise to or increase an annual loss (Jahresfehlbetrag, calculated in accordance with German law and accounting principles). The write-up will occur with effect as of the Interest Payment Date (including) immediately following the financial year of the Issuer for which the above-mentioned annual profit (Jahresüberschuss) was determined.
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The write-up shall be effected pari passu with write-ups of other instruments issued as Additional Tier 1 capital within the meaning of the CRR, unless this would cause the Issuer to be in breach of any of its statutory or regulatory obligations.
Subject to the conditions (a) to (e) below, which may limit the extent of any write-up, it shall be at the discretion of the Issuer to effect a write-up. In particular, the Issuer may effect a write-up only in part or effect no write-up at all even if a corresponding annual profit is recorded and the conditions (a) to (e) are fulfilled.
(a) To the extent that the annual profit determined or to be determined is to be used for a write-up of the PerpNC6 Notes (i.e. a write-up of the nominal amount and of the Redemption Amount) and of other instruments issued as Additional Tier 1 capital within the meaning of the CRR, the terms of which provide for a similar Trigger Event (also if such terms provide for a different Tier 1 capital ratio as trigger) (together with the PerpNC6 Notes the “AT1 Instruments”), and is available in accordance with (b) and (c) below, such write-up shall be effected pro rata in proportion to the initial nominal amounts of the instruments.
(b) The maximum total amount that may be used for a write-up of the PerpNC6 Notes and of other AT1 Instruments that have been written down and for the payment of interest and other Distributions on AT1 Instruments that have been written down shall be calculated, subject to the regulatory technical standards applicable at the time when the write-up is effected, in accordance with the following formula:
| H = J x S | ||
| T1 |
“H” means the maximum amount available for the write-up of the AT1 Instruments and Distributions on AT1 Instruments that have been written down;
“J” means the annual profit determined or to be determined for the previous year;
“S” means the sum of the initial nominal amounts of the AT1 Instruments (i.e. before write-downs due to a Trigger Event are effected);
“T1” means the amount of the Tier 1 capital of the Issuer immediately before the write-up is effected.
The maximum amount “H” shall be determined in accordance with the European Banking Authority’s regulatory technical standards as applicable from time to time, which are currently available in the
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“Commission Delegated Regulation (EU) No 241/2014 of 7 January 2014 supplementing Regulation (EU) No 575/2013 of the European Parliament and of the Council with regard to regulatory technical standards for Own Funds requirements for institutions,” as amended by Commission Delegated Regulations 2015/488, 2015/850 and 2015/923. The maximum amount “H” shall be determined by the Issuer in accordance with the requirements applicable at the time of determination, and the write-up shall be based on the amount so determined without requiring any amendment to this subparagraph (b).
(c) In total, the sum of the amounts of the write-ups of AT1 Instruments together with the amounts of any dividend payments and other Distributions on shares and other Common Equity Tier 1 instruments of the Issuer (including payment of interests and other Distributions on AT1 Instruments that have been written down) for the relevant financial year must not exceed the Maximum Distributable Amount.
(d) Write-ups of the PerpNC6 Notes do not have priority over dividend payments and other Distributions on shares and other Common Equity Tier 1 instruments of the Issuer, i.e. such payments and Distributions are permitted even if no full write-up has been effected.
(e) At the time of a write-up, there must not exist any Trigger Event that is continuing. A write-up is also excluded if such write-up would give rise to the occurrence of a Trigger Event.
If the Issuer elects to effect a write-up in accordance with the provisions of this Section 6.12, it shall provide notice of its election to effect the write-up as of the relevant Interest Payment Date (including the amount of the write-up as a percentage of the initial nominal amount of the PerpNC6 Notes and the effective date of the write-up (in each case a “Write-up Date”)) no later than 10 calendar days prior to the relevant Interest Payment Date to the Holders of the PerpNC6 Notes in accordance with Article 10, to the Calculation Agent, to the Paying Agent, to the other Agents, to the Trustee and, if required by the rules of any stock exchange on which the PerpNC6 Notes are listed from time to time at the request of the Issuer, to such stock exchange. The write-up shall be deemed to be effected at the time when the notice to the Holders is given in accordance with Article 10 and the nominal amount of each PerpNC6 Note in the Specified Denomination (including the Redemption Amount) shall be deemed to be increased by the amount specified in the notice with effect as of the Write-up Date.
(f) If the PerpNC6 Notes have been fully written down pursuant to Section 6.11, the Issuer agrees that prior to any instruction to write up the PerpNC6 Notes, it will enter into any agreements with the Trustee and the Agents necessary to effectuate such write up, including but not limited to a supplemental indenture. The Issuer shall arrange for all of the necessary documentation as required by the Depositary to effectuate such write-up.
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(g) Neither the Trustee nor the Paying Agents will be liable with respect to (i) the calculation or accuracy of the Common Equity Tier 1 Capital Ratio in connection with the occurrence of a Trigger Event and the timing of such Trigger Event, (ii) the Issuer’s failure to post or deliver the underlying Common Equity Tier 1 Capital Ratio calculations of a Trigger Event to the Depositary or the Holders or (iii) any aspect of the Issuer’s decision to deliver a notice of a write-down.
ARTICLE 7
PAYING AGENT AND CALCULATION AGENT
Section 7.01 Appointment, Specified Office. The initial Paying Agent and the initial Calculation Agent and their respective initial specified offices shall be:
Paying Agent
Deutsche Bank Trust Company Americas
Global Securities Services
Global Transaction Banking
60 Wall Street, 24th Floor
Mail Stop: NYC60-2405
New York, New York 10005
United States of America
Calculation Agent
Deutsche Bank Trust Company Americas
Global Securities Services
Global Transaction Banking
60 Wall Street, 24th Floor
Mail Stop: NYC60-2405
New York, New York 10005
United States of America
The Paying Agent and the Calculation Agent reserve the right at any time to change their respective specified office to some other specified office in the same city.
Section 7.02 Variation or Termination of Appointment. The Issuer reserves the right at any time to vary or terminate the appointment of the Calculation Agent or any Paying Agent and to appoint another Calculation Agent or additional or other Paying Agents. The Issuer shall at all times maintain a Paying Agent and a Calculation Agent. Any variation, termination, appointment
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or change shall only take effect (other than in the case of insolvency, when it shall be of immediate effect) after not less than 25 nor more than 45 days’ prior notice thereof shall have been given to the Holders in accordance with Article 10.
Section 7.03 Agents of the Issuer. The Calculation Agent, the Registrar, the Transfer Agent and the Paying Agent act solely as agents of the Issuer and do not assume any obligations towards or relationship of agency or trust for any Holder.
ARTICLE 8
ADDITIONAL COVENANTS
In addition to the covenants set forth in Article 8 of the Base Capital Securities Indenture, the PerpNC6 Notes shall be subject to the additional covenants set forth in this Article 8 of this Supplemental Capital Securities Indenture.
Section 8.01 Taxation. All amounts payable in respect of the PerpNC6 Notes shall be paid without withholding or deduction for or on account of any present or future taxes or duties of whatever nature imposed or levied by way of withholding or deduction by or in or for the account of the Federal Republic of Germany or any political subdivision or any authority thereof or therein having power to tax unless such withholding or deduction is required by law. In the event of such withholding or deduction on payment of interest (but not in respect of the payment of any principal in respect of the PerpNC6 Notes), the Issuer shall pay such additional amounts (“Additional Amounts”), but only to the extent that such payment would not exceed the Issuer’s Available Distributable Items (as calculated and adjusted as described herein) as shall be necessary in order that the net amounts received by the Holders, after such withholding or deduction, shall equal the respective amounts which would otherwise have been receivable by the Holders in the absence of such withholding or deduction; except that no such Additional Amounts shall be payable on account of any taxes or duties which:
(a) are payable by any person acting as custodian bank or collecting agent on behalf of a Holder, or otherwise in any manner which does not constitute a deduction or withholding by the Issuer or the Paying Agent from payments of principal or interest made by it; or
(b) are payable by reason of the Holder having, or having had, some personal or business connection with Germany and not merely by reason of the fact that payments in respect of the PerpNC6 Notes are, or for purposes of taxation are deemed to be, derived from sources in, or are secured in, Germany; or
(c) are payable by reason of a change in a law or administrative practice that becomes effective more than 30 days after the relevant payment becomes due, or is duly provided for and notice thereof is published in accordance with Article 10, whichever occurs later; or
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(d) are avoidable or would have been avoidable through fulfilment of statutory requirements or through the submission of a declaration of non-residence or by otherwise enforcing a claim for exemption vis à vis the relevant tax authority; or
(e) are deducted or withheld in respect of FATCA; or
(f) are deducted or withheld because the beneficial owner of the PerpNC6 Notes is not himself the legal owner (Holder) of the PerpNC6 Notes and the deduction or withholding in respect of payments to the beneficial owner would not have been made or the payment of Additional Amounts in respect of a payment to the beneficial owner in accordance with the above provisions could have been avoided if the latter had also been the legal owner (Holder) of the PerpNC6 Notes.
No Additional Amounts or any other amounts will be payable on account of any such withholding or deduction in respect of payments of principal.
For the avoidance of doubt, no Additional Amounts shall be payable in respect of (i) principal, interest or other amounts written down pursuant to a Resolution Measure, (ii) interest cancelled pursuant to Section 3.08 or (iii) principal written down pursuant to the terms Section 6.11.
Section 8.02 Written Statement to Trustee. The Issuer will furnish to the Trustee not less often than annually 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 Capital Securities Indenture) from the principal executive, financial or accounting officer of the Issuer stating that in the course of the performance by the signer of his duties as an officer of the Issuer he would normally have knowledge of any default or non-compliance by the Issuer in the performance of any covenants or conditions contained in this Supplemental Capital Securities 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 9
FURTHER ISSUES, PURCHASES AND CANCELLATION
Section 9.01 Further Issues. The Issuer may from time to time, without the consent of the Holders, issue further PerpNC6 Notes having the same terms and conditions as the PerpNC6 Notes in all respects (or in all respects except for the issue date, interest commencement date and/or issue price) so as to form a single series with the PerpNC6 Notes. Any such additional PerpNC6 Notes, together with the PerpNC6 Notes, may constitute a single series of securities
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under the Capital Securities Indenture, provided that if the PerpNC6 Notes constitute debt for U.S. federal income tax purposes and such additional PerpNC6 Notes have the same CUSIP, ISIN or other identifying number as the outstanding PerpNC6 Notes, such additional PerpNC6 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 PerpNC6 Notes or other debt securities that the Issuer may issue under this Supplemental Capital Securities Indenture or the Base Capital Securities Indenture.
Section 9.02 Purchases. The Issuer may, with the prior approval of the competent supervisory authority of the Issuer, purchase PerpNC6 Notes in a regulated market or otherwise at any price (i) for market-making purposes within the limits permitted by the Issuer’s competent supervisory authority or (ii) after the fifth anniversary of the Interest Commencement Date. PerpNC6 Notes purchased by the Issuer may, at the option of the Issuer, be held, resold or surrendered to the Paying Agent for cancellation. If purchases are made by public tender, tenders for such PerpNC6 Notes must be made available to all Holders of such PerpNC6 Notes alike in accordance with Article 10.
Section 9.03 Cancellation. All PerpNC6 Notes redeemed in full shall be cancelled forthwith and may not be reissued or resold.
ARTICLE 10
NOTICES
Section 10.01 Notices and Demands on Issuer. Any notice or demand which by any provision of the PerpNC6 Notes or the Capital Securities Indenture is required or permitted to be given or served by the Trustee, by the Agents or by the Holders to or on the Issuer may be given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address is filed with the Trustee) as follows:
If to the Issuer, to:
Deutsche Bank AG
Attn: Treasury, Issuance
Mainzer Landstrasse 11-17
60329 Frankfurt am Main
Germany
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Section 10.02 Notices and Demands on Trustee. Any notice, direction, request or demand by the Issuer, by the Agents or by any Holder 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:
The Bank of New York Mellon, London Branch
One Canada Square
London, E14 5AL
United Kingdom
with a copy to:
The Bank of New York Mellon, London Branch
Corporate Trust Administration
Internal Corporate Trust Services
Merck House
Seldown, Poole
Dorset BH15 1PX
United Kingdom
Section 10.03 Notices and Demands on Agents. Any notice, direction, request or demand by the Issuer, by the Trustee or by any Holder 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 Securities Services
Global Transaction Banking
60 Wall Street, 24th Floor
Mail Stop: NYC60-2405
New York, New York 10005
United States of America
Fax: 732-578-4635
Attn: Corporates Team – Deutsche Bank AG
with a copy to:
Deutsche Bank Trust Company Americas
Global Securities Services
Global Transaction Banking
60 Wall Street, 24th Floor
Mail Stop: NYC60-2405
New York, New York 10005
United States of America
Fax: 732-578-4635
Attn: Corporates Team – Deutsche Bank AG
Section 10.04 Notices to Holders. Notices to be given to Holders represented by the PerpNC6 Notes 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 the PerpNC6 Notes held in street name
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will be given only to the bank, broker or other financial institution in whose name the PerpNC6 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 register of the PerpNC6 Notes, and will be deemed given when mailed.
Notice by mail shall be made to each Holder’s address as that address appears in the register for the PerpNC6 Notes by first class mail, postage prepaid, and may 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 Depositary or systems through which beneficial interests in the PerpNC6 Notes are owned.
Where this Supplemental Capital Securities 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 PerpNC6 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 Capital Securities 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 PerpNC6 Notes when such notice is required to be given pursuant to any provision of this Supplemental Capital Securities 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.
Any notice given pursuant to the terms of the PerpNC6 Notes or the Capital Securities Indenture will be deemed given or delivered, as the case may be, when such notice is mailed or otherwise transmitted (or first published, in the case of publication in a newspaper) pursuant to the terms of the PerpNC6 Notes and the Capital Securities Indenture.
Section 10.05 Failure to Comply with Notice Provisions not an Event of Default. No failure by the Issuer to comply with the notice provisions with respect to the PerpNC6 Notes or the Capital Securities Indenture shall constitute a default or an event of default under the terms of the PerpNC6 Notes or the Capital Securities Indenture and shall not give any right to accelerate the repayment of the principal of any PerpNC6 Note or to declare any PerpNC6 Note issued hereunder due and payable.
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Section 10.06 Provision of Notice in Certain Circumstances. For the avoidance of doubt, notices to the Holders with respect to the imposition of a Resolution Measure, a cancellation of interest pursuant to Section 3.08 or a write-down pursuant to Section 6.11 shall be given directly by the Issuer to the Depositary. The Issuer may give the notice pursuant to Section 3.08(b) in substantially in the form of Exhibit D hereto and the notice pursuant to Section 6.11(a) and Section 6.11(b) in substantially in the form of Exhibit B and Exhibit C hereto. The Issuer may also provide notice of any interest cancellation to the Trustee and the Paying Agent for informational purposes in substantially the form of Exhibit E.
Section 10.07 Luxembourg Stock Exchange. In addition, so long as the PerpNC6 Notes are listed on the Official List of the Luxembourg Stock Exchange, notices that the Issuer is required to publish on a website or a newspaper of general circulation pursuant to Luxembourg Stock Exchange rules shall be made available on the Luxembourg Stock Exchange’s website (www.bourse.lu).
ARTICLE 11
ADDITIONAL TIER 1 CAPITAL
The PerpNC6 Notes are intended to qualify as Additional Tier 1 Capital (zusätzliches Kernkapital) of the Issuer for an indefinite period of time.
ARTICLE 12
NO DEFAULTS OR EVENTS OF DEFAULT; REMEDIES
Section 12.01 No Defaults or Events of Default. There are no defaults or events of default under the PerpNC6 Notes, and under no circumstances may the Holders declare the principal amount of the PerpNC6 Notes and interest accrued thereon to be due and payable.
Section 12.02 No Acceleration. If the Issuer does not make payments of principal of, interest on, or other amounts owing under the PerpNC6 Notes (i) pursuant to the subordination provisions of the PerpNC6 Notes, (ii) due to a Resolution Measure, (iii) as a result of any cancellation of interest pursuant to Section 3.08 or (iv) as a result of any write-down pursuant to Section 6.11, the Issuer will not be in default, and none of the Trustee and the Holders shall be permitted to demand repayment of the PerpNC6 Notes. Moreover, in the event of a Resolution Measure, a cancellation of interest pursuant to Section 3.08 or a write-down pursuant to Section 6.11, the Holder of the PerpNC6 Notes may permanently lose the right to receive such payments. If the Issuer does not make payments of principal of, interest on, or other amounts owing under the PerpNC6 Notes when due for reasons other than (i) pursuant to the subordination provisions
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of the PerpNC6 Notes, (ii) due to a Resolution Measure, (iii) as a result of any cancellation of interest pursuant to Section 3.08 or (iv) as a result of any write-down pursuant to Section 6.11, the Issuer will be in breach of its obligations under the Capital Securities Indenture. Nevertheless, neither the Trustee nor the Holders may demand repayment of the PerpNC6 Notes in any such case. Furthermore, if the Issuer becomes subject to German insolvency proceedings, the Trustee and Holder of the PerpNC6 Notes will have no right to file a claim against the Issuer unless the competent insolvency court allows the filing of subordinated claims.
Section 12.03 Remedies. Upon the occurrence of any non-payment of principal of, interest on, or other amounts owing under the PerpNC6 Notes (other than (i) pursuant to the subordination provisions of the PerpNC6 Notes, (ii) due to a Resolution Measure, (iii) as a result of any cancellation of interest pursuant to Section 3.08 or (iv) as a result of any write-down pursuant to Section 6.11), the Issuer shall give prompt written notice to the Trustee and the Paying Agent. In such case and subject to Section 2.03(c), the Trustee may proceed to protect and enforce its rights and the rights of the Holders in accordance with the Capital Securities Indenture whether in connection with any Non-Payment Event under the terms of the Base Capital Securities Indenture or any breach by the Issuer of its obligations under the PerpNC6 Notes, the Capital Securities Indenture or otherwise, by such judicial proceedings as the Trustee shall deem most effective as directed by the Holders, 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 PerpNC6 Notes prior to any date on which the principal of, or any interest on, the PerpNC6 Notes would have otherwise been payable.
By its acquisition of the PerpNC6 Notes, each Holder shall be deemed irrevocably to have agreed that (i) the imposition of a Resolution Measure by the competent resolution authority with respect to the PerpNC6 Notes (ii) a cancellation of interest pursuant to Section 3.08 or (iii) a write-down pursuant to Section 6.11 shall not give rise to a default for purposes of Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act.
Section 12.04 Special Record Date. Upon the occurrence of any non-payment of principal of, interest on, or other amounts owing under the PerpNC6 Notes (other than (i) pursuant to the subordination provisions of the PerpNC6 Notes, (ii) due to a Resolution Measure, (iii) as a result of any cancellation of interest pursuant to Section 3.08 or (iv) as a result of any write-down pursuant to Section 6.11), the Issuer may elect in its sole discretion to pay such principal of, interest on, or other amounts owing under the PerpNC6 Notes on a subsequent date which the Issuer shall fix for payment (a “Special Record Date”). The Issuer shall notify the Trustee in writing of the amount proposed to be paid under this Section 12.04 on each PerpNC6 Note. At least 15 days before any such Special Record Date, the Issuer shall mail to Holders affected thereby pursuant to Article 10 a notice that states the Special Record Date, the Interest Payment Date and amount of such interest to be paid.
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Section 12.05 No Other Remedies. Other than the limited remedies specified above, no remedy against the Issuer shall be available to the Trustee or the Holders whether for the recovery of amounts owing in respect of the PerpNC6 Notes or under the Capital Securities Indenture or in respect of any breach by the Issuer of its obligations under the Capital Securities Indenture or in respect of the PerpNC6 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 the Base Capital Securities Indenture, and provided that any payments are subject to the subordination provisions of the PerpNC6 Notes.
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ARTICLE 13
SATISFACTION AND DISCHARGE OF THE SUPPLEMENTAL CAPITAL SECURITIES
INDENTURE; SUPPLEMENTS THERETO
Section 13.01 Satisfaction and Discharge of Supplemental Capital Securities Indenture. If at any time (i) the Issuer shall have paid or caused to be paid the principal of and interest on all the PerpNC6 Notes (other than PerpNC6 Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.09 of the Base Capital Securities 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 PerpNC6 Notes theretofore authenticated (other than any PerpNC6 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 Capital Securities Indenture), then this Supplemental Capital Securities Indenture shall cease to be of further effect (except as to (i) rights of registration of transfer and exchange of PerpNC6 Notes and the Issuer’s right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen PerpNC6 Notes, (iii) rights of Holders of PerpNC6 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 Capital Securities 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 Capital Securities Indenture; provided, that the rights of Holders of the PerpNC6 Notes to receive amounts in respect of principal of and interest on the PerpNC6 Notes held by them shall not be delayed longer than required by then-applicable mandatory rules or policies of any securities exchange upon which the PerpNC6 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 Capital Securities Indenture or the PerpNC6 Notes.
Section 13.02 Amendment to the Capital Securities Indenture. Subject to the approval of the Issuer’s competent supervisory authority, if required under the CRR or other applicable laws and regulations for the recognition of the PerpNC6 Notes as Additional Tier 1 capital, the Issuer and the Trustee may amend, modify or supplement this Supplemental Capital Securities Indenture or the PerpNC6 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 give effect to any variation to the terms of the PerpNC6 Notes as a result of any exercise of any Resolution Measure, or to make such other provisions as the Issuer may deem necessary or desirable, provided that no such action shall adversely affect the
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interests of the Holders of the PerpNC6 Notes. Notwithstanding the foregoing, any amendment made solely to conform the provisions of this Supplemental Capital Securities Indenture to the description of the PerpNC6 Notes contained in the Issuer’s prospectus supplement dated February 11, 2020 will not be deemed to adversely affect the interests of the Holders of the PerpNC6 Notes.
ARTICLE 14
APPLICABLE LAW; PLACE OF JURISDICTION; PAYMENTS SUBJECT TO FISCAL LAWS
Section 14.01 Applicable Law. The PerpNC6 Notes and the Capital Securities Indenture shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of such State, except with respect to the provisions of Section 13.01 of the Base Capital Securities Indenture and § 2 (2) of the PerpNC6 Notes, in each case relating to the ranking of the PerpNC6 Notes and their status, which provisions shall be governed by and construed in accordance with the laws of the Federal Republic of Germany, including, in relation to such provisions, any determination of whether a Resolution Measure has been imposed on the Issuer, and except as may otherwise be required by mandatory provisions of law.
Section 14.02 Submission to Jurisdiction. The Issuer agrees that any legal suit, action or proceeding arising out of or based upon the PerpNC6 Notes or the Capital Securities 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 the parties hereto have any obligation under the PerpNC6 Notes, 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, 60 Wall Street, Mail Stop NYC60-3701, New York 10005, Attention: Office of the Secretary as its Authorized Agent, and represents and warrants that the Authorized Agent has agreed to act as said agent for service of process.
Section 14.03 Payments Subject to Fiscal Laws. All payments in respect of the PerpNC6 Notes are subject in all cases to (i) any applicable fiscal or other laws and regulations in the place of payment, but without prejudice to the terms described in Section 8.01, and (ii) any withholding or deduction required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986 (the “Code”) or otherwise imposed pursuant to Sections 1471 through 1474 of the Code, (or any regulations or agreements thereunder or official interpretations thereof) or an intergovernmental agreement between the
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United States and another jurisdiction facilitating the implementation thereof (or any law implementing such an intergovernmental agreement) (collectively, “FATCA”).
ARTICLE 15
MISCELLANEOUS PROVISIONS
Section 15.01 Scope of Supplemental Capital Securities Indenture. The Base Capital Securities Indenture as supplemented by this First Supplemental Capital Securities Indenture, is in all respects ratified and confirmed, including without limitation all the rights, immunities and indemnities of the Trustee and the Agents, and this First Supplemental Indenture shall be deemed an integral part of the Base Capital Securities Indenture in the manner and to the extent herein and therein provided. The changes, modifications and supplements to the Base Capital Securities Indenture effected by this Supplemental Capital Securities Indenture shall only be applicable with respect to, and govern the terms of, the PerpNC6 Notes and shall not apply to any other Capital Securities that may be issued by the Issuer under the Base Capital Securities Indenture.
Section 15.02 Provisions of Supplemental Capital Securities Indenture for the Sole Benefit of Parties and Holders of PerpNC6 Notes. Nothing in this Supplemental Capital Securities Indenture, the Base Capital Securities Indenture or in the PerpNC6 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 PerpNC6 Notes, any legal or equitable right, remedy or claim under this Supplemental Capital Securities 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 PerpNC6 Notes.
Section 15.03 Successors and Assigns of Issuer Bound by Supplemental Capital Securities Indenture. All the covenants, stipulations, promises and agreements in this Supplemental Capital Securities Indenture contained by or on behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.
Section 15.04 Conflict of any Provisions of Supplemental Capital Securities Indenture with Trust Indenture Act. If and to the extent that any provision of this Supplemental Capital Securities Indenture limits, qualifies or conflicts with the duties imposed by, or with another provision (an “incorporated provision”) included in this Supplemental Capital Securities Indenture by operation of, Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties or incorporated provision shall control.
Section 15.05 Other Currencies. If any amounts with respect to any instrument are not expressed in the functional currency of the Issuer, for the
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purposes of these PerpNC6 Notes and the Capital Securities Indenture such amounts will be converted into such functional currency at the then-prevailing exchange rate, as determined by the Issuer in its reasonable discretion, or such other procedure as provided by applicable regulations from time to time.
Section 15.06 Counterparts. This Supplemental Capital Securities Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
Section 15.07 Effect of Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 15.08 Not Responsible for Recitals or Issuance of PerpNC6 Notes. The recitals contained herein and in the PerpNC6 Notes, except the Trustee’s or the Authenticating Agent’s certificates of authentication, shall be taken as the statements of the Issuer, and neither the Trustee nor the Agents assume any responsibility for their correctness. Neither the Trustee nor the Agents make any representations as to the validity or sufficiency of this Supplemental Capital Securities Indenture or of the PerpNC6 Notes. Neither the Trustee nor the Agents shall be accountable for the use or application by the Issuer of PerpNC6 Notes or the proceeds thereof.
Section 15.09 Waiver of Right to Set-Off. By accepting a PerpNC6 Note, each Holder will be deemed to have waived any right of set-off, counterclaim or combination of accounts with respect to such PerpNC6 Note or the Capital Securities Indenture (or between the Issuer’s obligations under or in respect of any PerpNC6 Note and any liability owed by a Holder) that they might otherwise have against the Issuer, whether before or during the winding up or administration of the Issuer, and the claims of a Holder of a PerpNC6 Note may not be set off against any of the Issuer’s claims.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Capital Securities Indenture to be duly executed all as of February 14, 2020.
| Very truly yours, | ||||
| DEUTSCHE BANK AKTIENGESELLSCHAFT | ||||
| By: | /s/ Jonathan Blake | |||
| Name: | Jonathan Blake | |||
| Title: | Managing Director | |||
| By: | /s/ Thomas Rueckert | |||
| Name: | Thomas Rueckert | |||
| Title: | Vice President | |||
| THE BANK OF NEW YORK MELLON, LONDON BRANCH, as Trustee | ||||
| By: | /s/ Marilyn Chau | |||
| Name: | Marilyn Chau | |||
| Title: | Vice President | |||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Paying Agent, Calculation Agent, Transfer Agent and Registrar and Authenticating Agent | ||||
| By: | /s/ Jeffrey Schoenfeld | |||
| Name: | Jeffrey Schoenfeld | |||
| Title: | Vice President | |||
| By: | /s/ Kathryn Fischer | |||
| Name: | Kathryn Fischer | |||
| Title: | Vice President | |||
Fifth Supplemental Capital Securities
Indenture
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FORM OF GLOBAL SECURITY
DEUTSCHE BANK AG
[FORM OF FACE OF GLOBAL SECURITY]
UNDATED NON-CUMULATIVE FIXED TO RESET RATE
ADDITIONAL TIER 1 REGISTERED NOTE OF 2020
| REGISTERED | CUSIP: 251525 AX9 | |
| No. [●] | ISIN: US251525AX97 |
$[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 PERPNC6 NOTES REPRESENTED HEREBY).
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS PERPNC6 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 PERPNC6 NOTE IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT AT THE TIME OF ITS ACQUISITION AND THROUGHOUT THE PERIOD THAT IT HOLDS THIS PERPNC6 NOTE OR ANY INTEREST HEREIN (1) EITHER (A) IT IS NOT, AND IT IS NOT ACTING ON BEHALF OF (AND FOR SO LONG AS IT HOLDS SUCH PERPNC6 NOTE OR ANY INTEREST THEREIN IT WILL NOT BE, AND WILL NOT BE ACTING ON BEHALF OF), AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE UNITED STATES EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)), SUBJECT TO THE PROVISIONS OF PART 4 OF SUBTITLE B OF TITLE I OF ERISA, A PLAN TO WHICH SECTION 4975 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, (“CODE”), APPLIES, OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF SUCH AN EMPLOYEE BENEFIT PLAN’S AND/OR PLAN’S INVESTMENT IN SUCH ENTITY (EACH, A “BENEFIT PLAN INVESTOR”), OR A GOVERNMENTAL, CHURCH OR NON-U.S. PLAN WHICH IS SUBJECT TO ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND/OR SECTION 4975 OF THE CODE (“SIMILAR LAWS”), AND NO PART OF THE ASSETS USED BY IT TO ACQUIRE OR HOLD THIS PERPNC6 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 PERPNC6 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” OR EQUIVALENT UNDER SIMILAR LAWS) WITH RESPECT TO THE
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PURCHASER OR HOLDER IN CONNECTION WITH ANY PURCHASE OR HOLDING OF THE PERPNC6 NOTES, OR AS A RESULT OF ANY EXERCISE BY THE ISSUER OR ANY OF ITS AFFILIATES OF ANY RIGHTS IN CONNECTION WITH THE PERPNC6 NOTES, AND NO ADVICE PROVIDED BY THE ISSUER OR ANY OF ITS AFFILIATES HAS FORMED A PRIMARY BASIS FOR ANY INVESTMENT DECISION BY OR ON BEHALF OF THE PURCHASER AND HOLDER IN CONNECTION WITH THE PERPNC6 NOTES AND THE TRANSACTIONS CONTEMPLATED WITH RESPECT TO THE PERPNC6 NOTES; AND (3) IT WILL NOT SELL OR OTHERWISE TRANSFER THIS PERPNC6 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 PERPNC6 NOTE.
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GLOBAL SECURITY
Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Registered Note
| Interest Commencement Date | February 14, 2020. | |
| First Interest Reset Date | April 30, 2026. | |
| Reset Date | First Interest Reset Date and any fifth anniversary of such date. | |
| Maturity Date | None. | |
| Face Amount | $[insert face amount]. | |
| Aggregate Face Amount | $1,250,000,000. | |
| Denominations | $200,000 and integral multiples of $200,000 in excess thereof. | |
| Rate of Interest | for the period from the Interest Commencement Date (inclusive) to the First Interest Reset Date (exclusive) a fixed rate of 6.000 per cent. per annum.
for the period from the First Interest Reset Date (inclusive), the greater of (i) the sum of the Treasury Yield plus the Spread of 4.524 per cent. and (ii) zero, as determined by the Calculation Agent; for the avoidance of doubt, the Spread represents the initial credit spread to such Treasury Yield (as defined below), and does not represent any step-up in the interest rate of the PerpNC6 Notes. | |
| Interest Payment Date(s) | April 30th in each year. | |
| Redemption for Regulatory Reasons | Yes. | |
| Redemption for Reasons of Taxation | Yes. | |
| Redemption at Option of Issuer | Yes. | |
| Payment of Additional Tax Amounts | Yes. | |
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Deutsche Bank Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany (together with its successors and assigns, the “Issuer”), for value received, hereby promises to pay to Cede & Co., or registered assignees, interest as specified above (except to the extent not previously cancelled or written down) at the applicable interest rate per annum specified above from and including the Interest Commencement Date specified above until but excluding the date the principal amount is paid or duly made available for payment (except as provided below) annually in arrears on the Interest Payment Date specified above in each year on each Interest Payment Date, or on any redemption or repayment date.
Subject to § 2 (4), § 3 (8) and § 5 (9)(b) on the reverse hereof, interest on this PerpNC6 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 PerpNC6 Note (or one or more predecessor PerpNC6 Notes) is registered at the close of business on the Business Day (as defined on the reverse of this PerpNC6 Note) immediately preceding an Interest Payment Date (each such date a “Regular Record Date”); provided, however, that interest payable on any redemption or repayment date will be payable to the person to whom the principal hereof shall be payable.
Reference is hereby made to the further provisions of this PerpNC6 Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this PerpNC6 Note shall not be entitled to any benefit under the Capital Securities Indenture, as defined on the reverse hereof, or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuer has caused this PerpNC6 Note to be duly executed.
| DATED: | DEUTSCHE BANK AG | |||||
| By: |
| |||||
| Name: | ||||||
| Title: | ||||||
| By: |
| |||||
| Name: | ||||||
| Title: | ||||||
| TRUSTEE’S CERTIFICATE OF AUTHENTICATION | ||||||
| This is one of the PerpNC6 Notes referred to in the within-mentioned Capital Securities Indenture. |
||||||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Authenticating Agent |
||||||
| By: |
| |
| Authorized Officer: |
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[FORM OF REVERSE OF SECURITY]
§ 1
Currency, Denomination, Form, Book-Entry Provisions
| (1) | General. This security is one of a duly authorized series (the “PerpNC6 Notes”) of Additional Tier 1 instruments (within the meaning of the CRR (as defined in § 3 (9))) of Deutsche Bank Aktiengesellschaft (the “Issuer”). The PerpNC6 Notes are issued under a Capital Securities Indenture (as defined below), consisting of a base capital securities indenture, dated as of November 6, 2014, among the Issuer, The Bank of New York Mellon, as trustee (the “Trustee,” which term includes any successor trustee under the Capital Securities Indenture), and Deutsche Bank Trust Company Americas (“DBTCA”), as paying agent (the “Paying Agent”), calculation agent (the “Calculation Agent”), transfer agent (the “Transfer Agent”) and registrar (the “Registrar”) and authenticating agent (the “Authenticating Agent” and, together with the Paying Agent, the Calculation Agent, the Transfer Agent and the Registrar, the “Agents”) (the “Base Capital Securities Indenture,” as may be amended from time to time), a second supplemental capital securities indenture, dated as of July 25, 2019, among the Issuer, the Trustee, acting through its London Branch, and DBTCA, adding certain provisions to, and modifying certain provisions of, the Base Capital Securities Indenture, a fourth supplemental capital securities indenture, dated as of February 14, 2020, among the Issuer, the Trustee, acting through its London Branch, and DBTCA, adding certain provisions to, and modifying certain provisions of, the Base Subordinated Indenture (references to the “Base Capital Securities Indenture” herein shall mean the Base Capital Securities Indenture as amended by such second and fourth supplemental capital securities indenture), and a fifth supplemental capital securities indenture, dated as of February 14, 2020, among the Issuer, the Trustee, acting through its London Branch, and DBTCA (the “Supplemental Capital Securities Indenture” and, together with the Base Capital Securities Indenture, the “Capital Securities Indenture”), relating to the PerpNC6 Notes. Reference is hereby made to the Capital Securities Indenture for a complete and full statement of the respective rights, limitations of rights, duties and immunities of the Issuer, the Trustee and the holders of the PerpNC6 Notes (the “Holders”) and the terms upon which the PerpNC6 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, Calculation 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 PerpNC6 Notes. To the extent not inconsistent herewith, the terms of the Capital Securities Indenture are hereby incorporated by reference herein. |
| (2) | Currency; Denomination. This series of PerpNC6 Notes of the Issuer is being issued in USD (the “Specified Currency”) in the aggregate nominal amount of U.S.$ 1,250,000,000 (in words: one billion two hundred fifty million U.S. dollars) in minimum denominations of U.S.$ 200,000 and integral multiples of U.S.$ 200,000 in excess thereof (the “Specified Denomination”). |
| (3) | Form. The PerpNC6 Notes are being issued in fully registered, global form without coupons (each, a “Global Security”). |
| (4) | Book-Entry Provisions for the Global Securities. This PerpNC6 Note shall be initially registered in the name of The Depository Trust Company, its nominees and their respective successors (the “Depositary”) (or a nominee thereof) and shall 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 PerpNC6 Note held on their behalf by the Depositary or the Registrar as its custodian, or under the Capital Securities Indenture, , 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 this PerpNC6 Note for all purposes whatsoever. Notwithstanding the foregoing, nothing contained herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and the Agent Members, the operation of customary practices governing the exercise of the rights of any Holder. |
Holder of PerpNC6 Notes. “Holder” means the registered holder of any PerpNC6 Note or, subject to Section 5.04 of the Supplemental Capital Securities Indenture, any holder of a proportionate co-ownership or other beneficial interest or right in the PerpNC6 Notes.
| (5) | Exchange and Transfer. DBTCA has been appointed Registrar and Transfer Agent for this PerpNC6 Note, and DBTCA will maintain at its office in The City of New York a register for the registration and |
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| transfer of PerpNC6 Notes. This PerpNC6 Note may be transferred at either the aforesaid New York office of DBTCA by surrendering this PerpNC6 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 PerpNC6 Note or PerpNC6 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 PerpNC6 Note that has been called for redemption in whole or in part, except the unredeemed portion of PerpNC6 Notes being redeemed in part, (ii) to register the transfer of or exchange any PerpNC6 Note if the Holder thereof has exercised his right, if any, to require the Issuer to repurchase such PerpNC6 Note in whole or in part, except the portion of such PerpNC6 Note not required to be repurchased, or (iii) to register the transfer of or exchange PerpNC6 Notes to the extent and during the period so provided in the Capital Securities Indenture with respect to the redemption of PerpNC6 Notes. PerpNC6 Notes are exchangeable at said offices for other PerpNC6 Notes of other authorized denominations of equal aggregate principal amount having identical terms and provisions. All such registrations, exchanges and transfers of PerpNC6 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 PerpNC6 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 PerpNC6 Note delivered upon any exchange or transfer of PerpNC6 Notes shall be such that no gain or loss of interest results from such exchange or transfer. |
§ 2
Status
| (1) | The PerpNC6 Notes are intended to qualify as Additional Tier 1 capital (zusätzliches Kernkapital) of the Issuer for an indefinite period of time. |
| (2) | The PerpNC6 Notes shall 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 (as specified below). If Resolution Measures (as defined in § 2 (4)) are 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 insolvency of, or against, the Issuer, the obligations under the PerpNC6 Notes shall be fully subordinated to all obligations of the Issuer which do not also qualify as Additional Tier 1 Capital or as Common Equity Tier capital within the meaning of the CRR; in any such event, no amounts shall be payable in respect of the PerpNC6 Notes until all senior ranking obligations in accordance with this provision have been satisfied in full. Obligations which rank senior to the obligations under the PerpNC6 Notes include (i) all claims of unsubordinated creditors (as defined below) of the Issuer, (ii) the claims specified in Section 39(1) nos. 1 to 5 of the German Insolvency Code (Insolvenzordnung) (or any successor provision thereof), (iii) contractually subordinated obligations within the meaning of Section 39(2) of the German Insolvency Code (or any successor provision thereof) of the Issuer which do not qualify, from time to time, as own funds (within the meaning of the CRR), and (iv) the claims under Tier 2 instruments (within the meaning of the CRR (as defined in § 3 (9)) of the Issuer. Subject to the foregoing, the Issuer may satisfy its obligations under the PerpNC6 Notes also from other distributable assets (freies Vermögen) of the Issuer. |
Subject to applicable law from time to time, claims under the PerpNC6 Notes will rank pari passu with the claims against the Issuer under its other instruments issued as, and qualifying from time to time as, Additional Tier 1 capital within the meaning of the CRR (defined below) and, as of the date of this PerpNC6 Note, the subordinated guarantee given by the Issuer in relation with the issuance by Deutsche Bank Contingent Capital Trust II of its U.S.$ 800,000,000 Non-cumulative Trust Preferred Securities (ISIN US25153X2080). The preceding list of subordinated guarantees may be amended from time to time as set out in the terms of the Capital Securities.
Upon the implementation into German law (as required by December 28, 2020) of Article 48(7) of the BRRD (as defined in § 3 (8)(c)(i)), claims against us under certain of the Issuer’s currently outstanding capital instruments, if and when they cease to qualify as Additional Tier 1 capital, are expected to rank senior to, and no longer pari passu with, claims against the Issuer under the PerpNC6 Notes.
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The term “unsubordinated creditors” shall mean the holders of any indebtedness or other payment obligation of the Issuer that is not expressed to be subordinated by means of contractual agreement or as a matter of law (including claims against the Issuer under its 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).
No Holder may set off his claims arising under the PerpNC6 Notes against any claims of the Issuer. No collateral or guarantee of whatever kind is, or shall at any time be, provided by the Issuer or any other person securing rights of the Holders under the PerpNC6 Notes, and any collateral or guarantee already provided or granted in the future in connection with the Issuer’s other liabilities may not be used for claims under the PerpNC6 Notes.
| (3) | No subsequent agreement may limit the subordination pursuant to the provisions set out in § 2 (2) or shorten the term of the PerpNC6 Notes or any applicable notice period. If the PerpNC6 Notes are redeemed or repurchased by the Issuer otherwise than in the circumstances described in § 2 (2) or as a result of a redemption pursuant to § 5 (3), § 5 (4) or § 5 (5), then the amounts redeemed or paid must be returned to the Issuer irrespective of any agreement to the contrary unless the competent supervisory authority of the Issuer has given its consent to such redemption or repurchase. A termination or redemption of the PerpNC6 Notes pursuant to § 5 or a repurchase of the PerpNC6 Notes requires, in any event, the prior consent of the competent supervisory authority of the Issuer. |
| (4) | By subscribing for or otherwise acquiring this PerpNC6 Note, the Holders 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. Under the relevant resolution laws and regulations as applicable to the Issuer from time to time, this PerpNC6 Note may be subject to the powers exercised by the competent resolution authority to: |
| (a) | 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 PerpNC6 Note; |
| (b) | convert this PerpNC6 Note 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 1 capital (and the issue to or conferral on the holders (including the beneficial owners) of such ordinary shares or instruments); and/or |
| (c) | apply any other resolution measure, including, but not limited to, (i) any transfer of this PerpNC6 Note to another entity, (ii) the amendment of the terms and conditions of this PerpNC6 Note or (iii) the cancellation of this PerpNC6 Note; |
(each, a “Resolution Measure”).
The term “group entity” shall mean an entity that is included in the corporate group subject to a Resolution Measure.
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.
For the avoidance of doubt, any non-payment by the Issuer arising out of any such Resolution Measure will not constitute a Non-Payment Event under the terms of this PerpNC6 Note or the Capital Securities Indenture.
| (5) | By its acquisition of this PerpNC6 Note, each Holder shall be deemed irrevocably to have agreed and does agree: |
| (a) | 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 PerpNC6 Note to give effect to any Resolution Measure; |
| (b) | that it will have no claim or other right against the Issuer arising out of any Resolution Measure; and |
| (c) | that the imposition of any Resolution Measure will not constitute a default or an event of default under (i) this PerpNC6 Note, (ii) the Capital Securities Indenture, or (iii) for the purpose of, but only to extent |
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| permitted by the Trust Indenture Act as amended (the “Trust Indenture Act”) (including, without limitation, Section 315(b) (Notice of Defaults) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act). |
| (6) | By its acquisition of this PerpNC6 Note, each Holder 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 PerpNC6 Note. |
| (7) | By its acquisition of this PerpNC6 Note, each Holder 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 PerpNC6 Note and (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 PerpNC6 Note as it may be imposed, without any further action or direction on the part of such Holders, the part of the Trustee or the part of the Agents. |
| (8) | Upon the imposition of a Resolution Measure by the competent resolution authority with respect to this PerpNC6 Note, the Issuer shall provide a written notice directly to the Holders in accordance with § 11 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 Paying Agent for information purposes. Any delay or failure by the Issuer to give notice shall not affect the validity and enforceability of any Resolution Measure nor the effects thereof on the PerpNC6 Notes. |
| 9) | If the Issuer has elected to redeem this PerpNC6 Note but at any time prior to the payment of the redemption amount (i) the competent resolution authority has imposed a Resolution Measure with respect to the PerpNC6 Notes, (ii) a Trigger Event has occurred, (iii) the Issuer is either Overindebted or Illiquid (each as defined in § 5 (2)), or (iv) the Issuer would become Overindebted or Illiquid immediately following the payment of the redemption amount, then the relevant redemption notice shall be automatically rescinded and shall be of no force and effect, and no payment of the redemption amount will be due and payable. |
| (10) | 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 PerpNC6 Note under Section 5.09 of the Base Capital Securities Indenture, which section authorizes Holders of a majority in aggregate outstanding principal amount of the PerpNC6 Notes to direct certain actions relating to the PerpNC6 Notes, and if any such direction was previously given under Section 5.09 of the Base Capital Securities Indenture to the Trustee by the Holders, it shall automatically cease to be effective, be null and void and have no further effect. The Capital Securities Indenture shall impose no duties upon the Trustee or the Agents whatsoever with respect to the imposition of any Resolution Measure by the competent resolution authority. Notwithstanding the foregoing, if, following the completion of the imposition of a Resolution Measure by the competent resolution authority, this PerpNC6 Note remains outstanding (for example, if the imposition of a Resolution Measure results in only a partial write-down of the principal of this PerpNC6 Note), then the Trustee’s and the Paying Agent’s duties under the Capital Securities Indenture shall remain applicable with respect to the PerpNC6 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 a supplemental indenture is not necessary. |
| (11) | For the avoidance of doubt, the potential write-down of all or a portion of the principal amount of the PerpNC6 Notes, or interest or other amounts in respect of the PerpNC6 Notes, or the conversion of the PerpNC6 Notes into ordinary shares or other instruments of ownership, or the exercise of any other Resolution Measure is separate and distinct from a write-down upon a Trigger Event (as defined in § 5 (9)) although such events might occur consecutively. |
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§ 3
Interest
| (1) | Interest Payment Dates. |
| (a) | Subject to a cancellation of interest payments pursuant to § 3 (8) and a write-down pursuant to § 5 (9), the PerpNC6 Notes shall bear interest on their aggregate nominal amount in the period (each, an “Interest Period”) from February 14, 2020 (the “Interest Commencement Date”) (inclusive) to the first Interest Payment Date (exclusive), and thereafter from each Interest Payment Date (inclusive) to the next following Interest Payment Date (exclusive). The initial Interest Period will be a short interest accrual period. In the event of a write-down pursuant to § 5 (9)(b), the PerpNC6 Notes shall for the full respective Interest Period in which such write-down occurs only bear interest on the aggregate nominal amount which has been reduced accordingly; a potential write-up pursuant to § 5 (9)(c) which may occur on the relevant Interest Payment Date will not be taken into account for such Interest Period and will only become effective from the Interest Period commencing on the Interest Payment Date on which the write-up occurs. |
| (b) | “Interest Payment Date” means April 30th in each year. The first Interest Payment Date is April 30, 2020 (short first interest period). |
| (c) | If any Interest Payment Date would otherwise fall on a day which is not a Business Day, it shall be postponed to the next day which is a Business Day. Holders shall not be entitled to further interest or other payment in respect of such postponement. |
“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.
| (d) | A Holder of a PerpNC6 Note at the close of business on the Business Day immediately preceding an Interest Payment Date (the “Regular Record Date”) shall be entitled to receive interest payable pursuant to § 3 (2) on such PerpNC6 Note on the corresponding Interest Payment Date. |
| (2) | Unless expressly provided otherwise below, the Rate of Interest (the “Rate of Interest”) for any Interest Period (as defined below) shall be |
| (a) | for the period from the Interest Commencement Date (inclusive) to the First Interest Reset Date (as defined in § 5 (5)) (exclusive) a fixed rate of 6.000 per cent. per annum, and |
| (b) | for the period from the First Interest Reset Date (inclusive), the greater of (i) the sum of the Treasury Yield plus the initial credit spread of 4.524 per cent (the “Spread”) and (ii) zero, as determined by the Calculation Agent; for the avoidance of doubt, the Spread represents the initial credit spread to such Treasury Yield (as defined below), and does not represent any step-up in the interest rate of the PerpNC6 Notes (the “Reset Rate”). |
“Treasury Yield” means, in relation to any Reset Period,
| (i) | the rate per annum corresponding to the semi-annual equivalent yield to maturity, that represents the average for the five consecutive New York Business Days ending on and including the applicable Determination Date, appearing in the most recent H.15, and that establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity, for five-year maturities from the next Reset Date, under the caption ‘‘Treasury Constant Maturities’’; or |
| (ii) | if there is no such published actively traded U.S. Treasury security with a maturity of five years from the next Reset Date, the rate determined by interpolation between the most recent weekly average yield to maturity for two series of U.S. Treasury securities trading in the public securities market, (A) one maturing as close as possible to, but earlier than, |
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| the first Reset Date following the next succeeding Determination Date, and (B) the other maturing as close as possible to, but later than, the first Reset Date following the next succeeding Determination Date, in each case as published in the most recent H.15; or |
| (iii) | subject to the immediately succeeding paragraph, if the Treasury Yield cannot be determined pursuant to the methods described in clause (i) or (ii) above, the rate equal to the Treasury Yield for the last preceding Reset Period (or, in the case of the first Reset Period, the rate equal to the Initial Fall-Back Treasury Yield), |
in each case, as determined by the Calculation Agent on the applicable Determination Date.
Notwithstanding the foregoing, if the Treasury Yield cannot be determined by the Calculation Agent for any Reset Period (such Reset Period, the “Affected Reset Period”) pursuant to the methods described in clause (i) or (ii) above, then the Replacement Rate Agent will determine in its sole discretion (acting in good faith and in a commercially reasonable manner) whether to use an alternative rate for purposes of determining the Treasury Yield for the Affected Reset Period and each Reset Period thereafter. If the Replacement Rate Agent determines to use an alternative rate pursuant to the immediately preceding sentence, it shall select such rate that it has determined in its sole discretion (acting in good faith and in a commercially reasonable manner) is most comparable to the rate described in clause (i) in the definition of “Treasury Yield” (the “Existing Rate”), provided that if it determines that there is an appropriate industry-accepted successor rate to the Existing Rate, it shall use such industry-accepted successor rate. If the Replacement Rate Agent has determined an alternative rate in accordance with the foregoing (such rate, the “Replacement Rate”), for purposes of determining the Treasury Yield, (i) the Replacement Rate Agent shall in its sole discretion (acting in good faith and in a commercially reasonable manner) determine (A) the method for obtaining the Replacement Rate (including any alternative method for determining the Replacement Rate if such alternative rate is unavailable on the relevant Determination Date), which method shall be consistent with industry-accepted practices for the Replacement Rate, and (B) any adjustment factor as may be necessary to make the Replacement Rate comparable to the Existing Rate consistent with industry-accepted practices for the Replacement Rate, (ii) references to the Treasury Yield herein shall be deemed to be references to the Replacement Rate, including any alternative method for determining such rate and any adjustment factor as described in sub-clause (i) above, (iii) if the Replacement Rate Agent in its sole discretion (acting in good faith and in a commercially reasonable manner) determines that changes to the definitions of Business Day, Day Count Fraction or Determination Date are necessary in order to implement the Replacement Rate as the Treasury Yield, such definitions shall be deemed to have been amended for the purposes of this Fifth Supplemental Capital Securities Indenture and the PerpNC6 Notes, to reflect such implementation, and (iv) the Issuer shall give notice as soon as practicable to the holders in accordance with the Capital Securities Indenture and each of the Paying Agents specifying the Replacement Rate, as well as the details described in sub-clause (i) above and the amendments implemented pursuant to the Capital Securities Indenture.
By its acquisition of this PerpNC6 Note, each Holder shall be deemed irrevocably to have agreed and, subject to § 5 (9)(a), does agree:
| (a) | to be bound by the Replacement Rate Agent’s determination of the Existing Rate or Replacement Rate, including without the need for the Issuer to obtain any further consent from such Holder; |
| (b) | to waive any and all claims, in law and/or in equity, against the Trustee, Calculation Agent or the Replacement Rate Agent; |
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| (c) | not to initiate a suit against the Trustee, the Calculation Agent or the Replacement Rate Agent in respect of, and that none of the Trustee, the Calculation Agent or the Replacement Rate Agent will be liable for, the determination of or the failure to determine any Reset Rate, Existing Rate or Replacement Rate. |
“H.15” means the statistical release designated as such, or any successor publication, published by the Board of Governors of the United States Federal Reserve System, and ‘‘most recent H.15’’ means, in respect of any Reset Period, the H.15 published closest in time but prior to the close of business on the second Business Day prior to the applicable Reset Date.
“Replacement Rate Agent” means the person appointed by the Issuer on or prior to the first Determination Date on which the Treasury Yield cannot be determined by the Calculation Agent pursuant to the methods described in clause (i) or (ii) of the definition of “Treasury Yield”. The Replacement Rate Agent will not be appointed if the Issuer has elected to redeem the Notes in accordance with the Redemption Conditions and provided that no Trigger Event has occurred.
“Initial Fall-Back Treasury Yield” means the rate specified in the in the prospectus supplement dated February 11, 2020, relating to the PerpNC6 Notes, and the prospectus dated August 20, 2018, of the Issuer.
“Reset Date” means the First Interest Reset Date and any fifth anniversary of such date.
“Determination Date” means, in respect of the Reset Rate to be determined in relation to the period from a Reset Date (inclusive) to the next following Reset Date (exclusive), the second Business Day immediately preceding the Reset Date on which such period commences.
| (3) | Interest Amount. The Calculation Agent will, forthwith after the determination of the Reference Rate, determine the applicable Rate of Interest and calculate the amount of interest payable on the PerpNC6 Notes in respect of the Specified Denomination (subject to § 5 (9)(b) (the “Interest Amount”) for the relevant Interest Periods. The Interest Amount shall be calculated by applying the Rate of Interest and the Day Count Fraction (as defined below) to the Specified Denomination and rounding the resultant figure to the nearest unit of the Specified Currency, with 0.5 of such unit being rounded upwards. |
| (4) | Notification of Rate of Interest and Interest Amount. The Calculation Agent will cause the Rate of Interest and the Interest Amount for the Interest Periods up to the next Reset Date to be notified (i) to the Issuer, to the Paying Agent, to the other Agents, to the Trustee and to the Holders in accordance with § 11 as soon as possible after their determination, but in no event later than the fourth Business Day thereafter and (ii), if required by the rules of any stock exchange on which the PerpNC6 Notes are listed from time to time at the request of the Issuer, to such stock exchange as soon as possible after their determination, but in no event later than the first day of the Interest Period in relation to which the relevant Rate of Interest and the relevant Interest Amount applies. |
| (5) | Determinations Binding. All certificates, communications, opinions, determinations, calculations, quotations and decisions given, expressed, made or obtained for the purposes of the provisions of this § 3 by the Calculation Agent shall (in the absence of manifest error) be binding on the Issuer, the Paying Agent and the Holders. |
| (6) | Accrual of Interest. The PerpNC6 Notes shall cease to bear interest from the beginning of the day on which they are due for redemption. If the Issuer shall fail to redeem the PerpNC6 Notes when due, interest shall continue to accrue on the outstanding aggregate nominal amount of the PerpNC6 Notes from the due date (inclusive) to the date of actual redemption of the PerpNC6 Notes (exclusive) at the default rate of interest established by law. |
| (7) | Day Count Fraction. |
“Day Count Fraction” means with regard to the calculation of an Interest Amount on the PerpNC6 Notes for any period of time (the “Calculation Period”) the number of days in the Calculation Period divided by the actual number of days in the respective interest year (i.e. from April 30th (inclusive)) in any year to the next April 30th (exclusive).
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| (8) | Cancellation of Interest Payment. |
| (a) | Interest on the PerpNC6 Notes shall only be or become due and payable on an Interest Payment Date to the extent it has not been cancelled or deemed cancelled (in each case, in whole or in part) in accordance with the provisions set forth in this § 3 (8). To the extent any payment of interest that would otherwise have been paid has been cancelled or deemed cancelled, then the interest that would otherwise have been payable absent such cancellation shall not be due and payable and no Holder shall have any claim whatsoever in respect thereof. In addition, principal, interest or other amounts on this PerpNC6 Note shall only be or become due and payable to the extent that such amounts are not subject to any Resolution Measure. Any interest, principal or other amounts so cancelled or deemed cancelled (in each case, in whole or in part) pursuant to such sections shall not be due and shall not accumulate or be payable at any time thereafter, and Holders shall have no rights thereto or in connection therewith or any claim therefor and shall not be entitled to any additional interest or compensation as a result of or in connection with such cancellation or deemed cancellation. For the avoidance of doubt, any such cancellation or deemed cancellation (in whole or in part) will not constitute a Non-Payment Event under the terms of this PerpNC6 Note or the Capital Securities Indenture. |
By its acquisition of this PerpNC6 Note, each Holder shall be deemed irrevocably to have agreed and, subject to § 5 (9)(a), does agree, that:
| (i) | subject to § 5 (9)(a), interest is due and payable in respect of any period only if and to the extent that the Issuer has not exercised its sole discretion to cancel such payment, and no amount of interest shall become due and payable in respect of any such period to the extent that it has been (x) cancelled (in whole or in part) by the Issuer at the Issuer’s sole discretion pursuant to § 3 (8)(b), (y) cancelled (in whole or in part) pursuant to a Resolution Measure and/or (z) deemed cancelled (in whole or in part) pursuant to § 3 (8)(c); |
| (ii) | a cancellation or deemed cancellation of interest (in each case, in whole or in part) in accordance with the terms hereof and of the Capital Securities Indenture shall not constitute a default in payment or otherwise constitute a default under, or a breach of, the terms of this PerpNC6 Note or the Capital Securities Indenture; and |
| (iii) | subject to § 5 (9)(a), interest, principal or other amounts on this PerpNC6 Note shall only be or become due and payable in accordance with this § 3 (8)(a). |
| (b) | The Issuer has the right to cancel all or part of any payment of interest in its sole discretion and at any time. If the Issuer makes use of such right, it shall give notice to the Holders in accordance with § 11 without undue delay, but no later than on the relevant Interest Payment Date. Any failure to give such notice shall not affect the validity of the cancellation and shall not constitute a default for any purpose. A notice which has not been given until the relevant Interest Payment Date shall be given without undue delay thereafter. Interest that is cancelled will not be due and will not accumulate or be payable at any time thereafter. |
| (c) | Payment of interest on the PerpNC6 Notes for the relevant Interest Period shall be excluded and cancelled (without prejudice to the exercise of sole discretion pursuant to § 3 (8)(b)): |
| (i) | to the extent that such payment of interest together with any additional Distributions (as defined in § 3 (9)) plus any write-ups in accordance with the terms of the PerpNC6 Notes or in respect of other Additional Tier 1 Instruments that are simultaneously planned or made or that have been made by the Issuer in the Issuer’s then current financial year on other capital instruments which, according to the CRR, qualify as Tier 1 instruments (as defined in § 3 (9))would exceed the Available Distributable Items (as defined in § 3 (9)), provided that, for such purpose, the Available Distributable Items shall be increased by (i) an amount equal to what has been accounted for as expenses for Distributions in respect of Tier 1 Instruments (including payments of interest on the PerpNC6 Notes) in the determination of the profit (Gewinn) on which the Available Distributable Items are based, and (ii) any supplemental amounts that may be included for the purposes of determining the amounts distributable on Additional Tier 1 instruments under the bank regulatory capital rules applicable to the Issuer from time to time; or |
| (ii) | if and to the extent that the Issuer’s competent supervisory authority orders that all or part of the relevant |
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| payment of interest be cancelled or another prohibition of Distributions is imposed by law or an authority (including (i) a prohibition of Distributions in connection with the calculation of the maximum distributable amount within the meaning of Article 141(2) of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (such Directive, as amended, supplemented or replaced from time to time, as “CRD”)) and as currently transposed into German law by Section 10i of the German Banking Act (such amount, the “Maximum Distributable Amount” or “MDA”), and upon their transposition into German law, (ii) a prohibition of Distributions in connection with the calculation of the leverage ratio related maximum distributable amount (“L-MDA”) pursuant to Article 141b(2) of the CRD, and (iii) the maximum distributable amount related to the minimum requirement for own funds and eligible liabilities (“M-MDA”) pursuant to Article 16a(1) of Directive 2014/59/EU of the European Parliament and of the Council of May 15, 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms (including any provisions of regulatory law supplementing this Directive)(such Directive, as amended, supplemented or replaced from time to time, the “BRRD”)). |
| (d) | The Issuer has the right to use the funds from cancelled payments of interest without restrictions for the fulfilment of its own obligations when due. To the extent that payments of interest are cancelled, such cancellation includes all Additional Amounts (as defined in § 7(2)) payable pursuant to § 7(2). Any payments of interest which have been cancelled will not be made or compensated at any later date. |
| (9) | Definitions. |
“Distribution” means any kind of payment of dividends or interest.
“Available Distributable Items” means, with respect to any payment of interest, the profit (Gewinn) as of the end of the financial year of the Issuer immediately preceding the relevant Interest Payment Date, and for which audited annual financial statements are available, plus (i) any profits carried forward and reserves available for that purpose, minus (ii) any losses carried forward and any profits which are non-distributable pursuant to applicable law or the Articles of Association of the Issuer and any amounts allocated to the non-distributable reserves, in each case with respect to Additional Tier 1 instruments within the meaning of the CRR and pursuant to applicable law and the Articles of Association of the Issuer, provided that such profits, losses and reserves shall be determined on the basis of the unconsolidated financial statements of the Issuer prepared in accordance with accounting principles generally accepted in the Federal Republic of Germany as described in the German Commercial Code (Handelsgesetzbuch) and other applicable German law then in effect and not on the basis of its consolidated financial statements.
“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 the Capital Securities Indenture and the terms of the PerpNC6 Notes shall refer to such amended provisions or successor provisions.
“Tier 1 Instruments” means capital instruments which, according to the CRR, qualify as common equity Tier 1 capital or Additional Tier 1 capital.
§ 4
Payments
| (1) | Payment of Principal and Interest. Any payments of principal of and interest to be made on the Global Security 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). |
| (2) | Manner of Payment. Subject to applicable fiscal and other laws and regulations, payments of amounts due in respect of the PerpNC6 Notes shall be made in the Specified Currency. |
| (3) | Discharge. The Issuer shall be discharged by payment to, or to the order of, the Depositary. |
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| (4) | Payment Date. If the date for payment of principal in respect of any PerpNC6 Note is not a Business Day then the Holders shall not be entitled to payment until the next Business Day and shall not be entitled to further interest or other payment in respect of such delay. |
| (5) | References to Principal and Interest. Reference in this PerpNC6 Note to principal in respect of the PerpNC6 Notes shall be deemed to include, as applicable, the following amounts: the Redemption Amount of the PerpNC6 Notes, any premium and any other amounts which may be payable under or in respect of the PerpNC6 Notes. Reference in these terms and conditions to interest in respect of the PerpNC6 Notes shall be deemed to include, as applicable, any Additional Amounts (as defined in § 7(2)) payable pursuant to § 7(2). |
| (6) | 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 PerpNC6 Notes that remain unclaimed at the end of two years after such principal, interest or premium shall have become due and payable (whether upon call for redemption or otherwise), (i) the Trustee or such Paying Agent shall notify the Holders 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 PerpNC6 Note as the same shall become due. |
| (7) | Prior to due presentment of this PerpNC6 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 PerpNC6 Note is registered as the owner hereof for all purposes, whether or not this PerpNC6 Note be overdue, and none of the Issuer, the Trustee or any such agent shall be affected by notice to the contrary. |
| (8) | No recourse shall be had for the payment of the principal of, premium, if any, or the interest on this PerpNC6 Note, for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Capital Securities 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. |
§ 5
Redemption; Write-downs
| (1) | No Scheduled Maturity. The PerpNC6 Notes have no scheduled maturity date. |
| (2) | Redemption Conditions. The Issuer may redeem the PerpNC6 Notes only if (i) no Trigger Event has occurred and is continuing, (ii) the Issuer is neither Overindebted nor Illiquid on the date of redemption, and (iii) the Issuer would not become Overindebted or Illiquid immediately following the payment of the redemption amount ((i) to (iii) together, the “Redemption Conditions”); provided that, Section 41 of the German Insolvency Code (relating to immature claims) remains unaffected. |
“Overindebted” means overindebted (überschuldet) within the meaning of Section 19 of the German Insolvency Code (Insolvenzordnung), as such term is interpreted by the German courts from time to time, which provides that the Issuer is overindebted if its assets no longer cover its existing liabilities, unless its continuation is nonetheless highly likely under the circumstances.
“Illiquid” means illiquid (zahlungsunfähig) within the meaning of Section 17 of the German Insolvency Code (Insolvenzordnung), as such term is interpreted by the German courts from time to time, which provides that the Issuer is illiquid if it is unable to satisfy its payment obligations as they become due; illiquidity is, as a general rule, to be presumed when the Issuer has ceased to make payments to meet is payment obligations, and “illiquidity” has a corresponding meaning.
| (3) | Early Redemption for Regulatory Reasons. Subject to the Redemption Conditions, the Issuer may redeem the PerpNC6 Notes, in whole but not in part, with the prior approval of the Issuer’s competent supervisory authority, at any time if there is a change in the regulatory classification of the PerpNC6 |
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| Notes that would likely result in (i) their exclusion in full or in part from the Issuer’s own funds within the meaning of the CRR (other than as a consequence of a write-down or conversion, as the case may be) or (ii) their reclassification as a lower quality form of the Issuer’s own funds than their classification at the time of their issuance, but only if the conditions of Article 78(4)(a) of the CRR are met, pursuant to which the Issuer’s competent supervisory authority may approve such a redemption if (a) it considers the change in the regulatory classification to be sufficiently certain and (b) the Issuer demonstrates to the satisfaction of the competent supervisory authority that the regulatory reclassification of the PerpNC6 Notes was not reasonably foreseeable at the time of their issuance. Such redemption shall be made upon not less than 30 and not more than 60 days’ prior notice of redemption at their Redemption Amount (as defined below) together with interest (if any, and subject to a cancellation of the interest payment pursuant to § 3 (8)) accrued to (and excluding) the date fixed for redemption. |
| (4) | Early Redemption for Reasons of Taxation. Subject to the Redemption Conditions, the Issuer may redeem the PerpNC6 Notes, in whole but not in part, with the prior approval of the Issuer’s competent supervisory authority, if the tax treatment of the PerpNC6 Notes changes, due to a change in applicable legislation, including a change in any fiscal or regulatory legislation, rules or practices, which takes effect after the time of their issuance (including but not limited to the tax deductibility of interest payable on the PerpNC6 Notes or the obligation to pay Additional Amounts (as defined in § 7(2)) and the conditions of Article 78(4)(b) of the CRR are met, pursuant to which the Issuer’s competent supervisory authority may approve such redemption if there is a change in the applicable tax treatment of the PerpNC6 Notes that the Issuer has demonstrated to the satisfaction of the competent supervisory authority is material and was not reasonably foreseeable at the time of their issuance, Such redemption shall be made upon not less than 30 and not more than 60 days’ prior notice of redemption at their Redemption Amount (as defined below) together with interest (if any, and subject to a cancellation of the interest payment pursuant to § 3 (8)) accrued to (and excluding) the date fixed for redemption. |
| (5) | Early Redemption at the Option of the Issuer. Subject to the Redemption Conditions, the Issuer may redeem the PerpNC6 Notes, in whole but not in part, with the prior approval of the Issuer’s competent supervisory authority, upon not less than 30 days’ notice of redemption with effect as of the Early Redemption Date (as defined below) at their Redemption Amount (as defined below) together with interest (if any, and subject to a cancellation of the interest payment pursuant to § 3 (8)) accrued to (and excluding) the Early Redemption Date. The Issuer may exercise its redemption right pursuant to this § 5 (5) only if any write-downs following a Trigger Event have been fully written-up. |
“Early Redemption Date” means (i) any Business Day falling in the period commencing on (and including) October 30, 2025 and ending on (and including) the First Interest Reset Date and (ii) any Interest Payment Date thereafter.
“First Interest Reset Date” means April 30, 2026.
| (6) | Notice pursuant to § 5 (3), (4) and (5) shall be given in accordance with § 11 to the Holders, the Agents and the Trustee. Such notice shall state the date fixed for redemption and, in the case of a notice pursuant to Section § 5 (3) or (4), the reason for the redemption. If the Issuer has elected to redeem the PerpNC6 Notes but at any time prior to the payment of the Redemption Amount (i) the competent resolution authority has imposed a Resolution Measure with respect to the PerpNC6 Notes, (ii) a Trigger Event has occurred, (iii) the Issuer is either Overindebted or Illiquid, or (iv) the Issuer would become Overindebted or Illiquid immediately following the payment of the Redemption Amount, then the relevant redemption notice shall be automatically rescinded and shall be of no force and effect, and no payment of the Redemption Amount will be due and payable. The Issuer shall promptly notify the Holders, the Trustee and the Agents if a redemption notice is rescinded because of an event set forth in (i) to (iv) of the previous sentence, provided that such notice will not be a precondition for the invalidity of a redemption notice. |
| (7) | Redemption after Write-Up; Redemption Amount. The Issuer may exercise its ordinary redemption rights pursuant to § 5 (5) only if any write-downs pursuant to § 5 (9) have been fully written up. However, if this PerpNC6 Note is written down in whole or in part pursuant to a Resolution Measure, the Issuer shall be permitted to exercise its ordinary redemption right pursuant to § 5 (5) without subsequently writing up any such write-down. |
Otherwise, the exercise of the redemption rights pursuant to § 5 (3), (4) and (5) shall be at the sole discretion of the Issuer.
“Redemption Amount” of each PerpNC6 Note, unless previously redeemed in whole or in part or
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| repurchased and cancelled, shall be the initial nominal amount of such PerpNC6 Note, unless such PerpNC6 Note is written down in whole or in part pursuant to a Resolution Measure, in which case the Redemption Amount shall be the nominal amount of the PerpNC6 Note after giving effect to such write-down. In the event that the Issuer redeems the PerpNC6 Notes in accordance with § 5 (3) or § 5 (4), the “Redemption Amount” of each PerpNC6 Note, unless previously redeemed in whole or in part or repurchased and cancelled, shall be the then current nominal amount of such PerpNC6 Note as reduced by any write-downs (including, but not limited to, any write-downs following a Trigger Event, and to the extent not made up for by write-up(s)). No Holder shall have any claim against the Issuer in connection with or arising out of the reduction of the Redemption Amount in connection with any write-down under § 5 (9)(b) or any Resolution Measure. |
| (8) | No Call Right of the Holders. The Holders have no right to call the PerpNC6 Notes for redemption. |
| (9) | Write-down. |
| (a) | Deemed Agreement to Principal Write-down. By its acquisition of this PerpNC6 Note, each Holder shall be deemed irrevocably to have agreed and, subject to § 3 (8)(a), does agree, that: |
| (i) | subject to § 3 (8)(a), interest is not due and payable on any portions of the aggregate nominal amount of this PerpNC6 Note written down pursuant to § 5 (9)(b) (to the extent not subsequently written up pursuant to § 5 (9)(c)); |
| (ii) | a write down of the nominal amount of this PerpNC6 Note (in whole or in part) in accordance with the terms hereof and of the Capital Securities Indenture shall not constitute a default in payment or otherwise constitute a default under, or a breach of, the terms of this PerpNC6 Note or the Capital Securities Indenture; and |
| (iii) | subject to § 3 (8)(a), interest or principal on this PerpNC6 Note shall only be or become due and payable on an Interest Payment Date or other relevant date to the extent the nominal amount of this PerpNC6 Note at the time of such payment has not been written down in accordance with § 5 (9)(b) (in whole or in part, and to the extent not subsequently written up pursuant to § 5 (9)(c)). Any interest, principal or other amounts unpaid as a result of a write-down (in whole or in part) in accordance with § 5 (9)(b) shall not be due and shall not accumulate or be payable at any time thereafter, and Holders shall have no rights thereto or in connection therewith or any claim therefor and shall not be entitled to any additional interest or compensation as a result of or in connection with such write-down. For the avoidance of doubt, any write-down (in whole or in part) pursuant to § 5 (9)(b) shall not constitute a Non-Payment Event under the terms of this PerpNC6 Note or the Capital Securities Indenture. |
| (b) | Upon the occurrence of a Trigger Event, the Redemption Amount and the nominal amount of each PerpNC6 Note shall be reduced by the amount of the relevant write-down. |
A “Trigger Event” shall occur, if at any time, the Common Equity Tier 1 capital ratio pursuant to Article 92 (1) (a) of the CRR or any successor provision, determined on a consolidated basis (the “Common Equity Tier 1 Capital Ratio”), falls below 5.125 per cent. Whether a Trigger Event has occurred shall be determined by the Issuer, its competent supervisory authority or any agent appointed for such purpose by the Issuer’s competent supervisory authority and such a determination shall be binding on the Holders.
Upon the occurrence of a Trigger Event, a write-down shall be effected pro rata with all of the Issuer’s other instruments issued as Additional Tier 1 capital within the meaning of the CRR, the terms of which provide for a write-down (whether permanent or temporary) upon the occurrence of the Trigger Event. For such purpose, the total amount of the write-downs to be allocated pro rata shall be equal to the amount required to restore fully the Common Equity Tier 1 Capital Ratio of the Issuer to 5.125 per cent. but shall not exceed the sum of the nominal amounts of the relevant instruments outstanding at the time of occurrence of the Trigger Event. The performance of any write-downs in respect of the PerpNC6 Notes shall not be dependent on the effectiveness of a write-down or conversion of other instruments.
The sum of the write-downs to be effected with respect to the PerpNC6 Notes shall be limited to the outstanding aggregate nominal amount of the PerpNC6 Notes at the time of occurrence of the relevant Trigger Event.
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Upon the occurrence of a Trigger Event, the Issuer shall:
| (i) | inform the competent supervisory authority that is responsible for the Issuer and, in accordance with § 11, provide notice to the Trustee, the Agents and the Holders of the PerpNC6 Notes without undue delay about the occurrence of such Trigger Event and the fact that a write-down will have to be effected, and |
| (ii) | determine the write-down to be effected without undue delay, but not later than within one month (unless the competent supervisory authority of the Issuer shortens such period), and notify such write-down (i) to the competent supervisory authority, (ii) to the Holders of the PerpNC6 Notes in accordance with § 11, (iii) to the Calculation Agent and the Paying Agent, the other Agents and the Trustee and (iv), if required by the rules of any stock exchange on which the PerpNC6 Notes are listed from time to time at the request of the Issuer, to such stock exchange. |
The write-down shall be deemed to be effected at the time when the notices pursuant to (a)(i) and (a)(ii) are given and the nominal amount of each PerpNC6 Note (including the Redemption Amount) in the Specified Denomination shall be deemed to be reduced at such time by the amount of such write-down. Any failure to give such notice shall not affect the effectiveness of, or otherwise invalidate, any write-down. A notice which has not been given shall be given without undue delay. To the extent that the write-down of any of the Issuer’s other Additional Tier 1 instruments is not effective for any reason, (i) the ineffectiveness of any such write-down shall not prejudice the requirement to effect a write-down of the PerpNC6 Notes and (ii) the ineffective write-down shall not be taken into account in determining the write-down amount of the PerpNC6 Notes.
A Trigger Event may occur on more than one occasion and the PerpNC6 Notes may be written down on more than one occasion.
| (c) | After a write-down has been effected, the nominal amount and the Redemption Amount of each PerpNC6 Note, unless previously redeemed or repurchased and cancelled, may be written up in accordance with the following provisions of § 5 (9)(c) in each of the financial years of the Issuer subsequent to the occurrence of such write-down until the full initial nominal amount has been reached, to the extent that a corresponding annual profit (Jahresüberschuss, calculated in accordance with German law and accounting principles) is recorded and the write-up will not give rise to or increase an annual loss (Jahresfehlbetrag, calculated in accordance with German law and accounting principles). The write-up will occur with effect as of the Interest Payment Date (including) immediately following the financial year of the Issuer for which the above-mentioned annual profit (Jahresüberschuss) was determined. |
The write-up shall be effected pari passu with write-ups of other instruments issued as Additional Tier 1 capital within the meaning of the CRR, unless this would cause the Issuer to be in breach of any of its statutory or regulatory obligations.
Subject to the conditions (i) to (v) below, which may limit the extent of any write-up, it shall be at the discretion of the Issuer to effect a write-up. In particular, the Issuer may effect a write-up only in part or effect no write-up at all even if a corresponding annual profit is recorded and the conditions (i) to (v) are fulfilled.
| (i) | To the extent that the annual profit determined or to be determined is to be used for a write-up of the PerpNC6 Notes (i.e. a write-up of the nominal amount and of the Redemption Amount) and of other instruments issued as Additional Tier 1 capital within the meaning of the CRR, the terms of which provide for a similar Trigger Event (also if such terms provide for a different Tier 1 capital ratio as trigger) (together with the PerpNC6 Notes the “AT1 Instruments”), and is available in accordance with (ii) and (iii) below, such write-up shall be effected pro rata in proportion to the initial nominal amounts of the instruments. |
| (ii) | The maximum total amount that may be used for a write-up of the PerpNC6 Notes and of other AT1 Instruments that have been written down and for the payment of interest and other Distributions on AT1 Instruments that have been written down shall be calculated, subject to the regulatory technical standards applicable at the time when the write-up is effected, in accordance with the following formula: |
H = J x S
T1
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“H” means the maximum amount available for the write-up of the AT1 Instruments and Distributions on AT1 Instruments that have been written down;
“J” means the annual profit determined or to be determined for the previous year;
“S” means the sum of the initial nominal amounts of the AT1 Instruments (i.e. before write-downs due to a Trigger Event are effected);
“T1” means the amount of the Tier 1 capital of the Issuer immediately before the write-up is effected.
The maximum amount “H” shall be determined in accordance with the European Banking Authority’s regulatory technical standards as applicable from time to time, which are currently available in the “Commission Delegated Regulation (EU) No 241/2014 of 7 January 2014 supplementing Regulation (EU) No 575/2013 of the European Parliament and of the Council with regard to regulatory technical standards for Own Funds requirements for institutions,” as amended by Commission Delegated Regulations 2015/488, 2015/850 and 2015/923. The maximum amount “H” shall be determined by the Issuer in accordance with the requirements applicable at the time of determination, and the write-up shall be based on the amount so determined without requiring any amendment to this subparagraph (ii).
| (iii) | In total, the sum of the amounts of the write-ups of AT1 Instruments together with the amounts of any dividend payments and other Distributions on shares and other Common Equity Tier 1 instruments of the Issuer (including payment of interests and other Distributions on AT1 Instruments that have been written down) for the relevant financial year must not exceed the Maximum Distributable Amount. |
| (iv) | Write-ups of the PerpNC6 Notes do not have priority over dividend payments and other Distributions on shares and other Common Equity Tier 1 instruments of the Issuer, i.e. such payments and Distributions are permitted even if no full write-up has been effected. |
| (v) | At the time of a write-up, there must not exist any Trigger Event that is continuing. A write-up is also excluded if such write-up would give rise to the occurrence of a Trigger Event. |
If the Issuer elects to effect a write-up in accordance with the provisions of this § 5 (9)(c), it shall provide notice of its election to effect the write-up as of the relevant Interest Payment Date (including the amount of the write-up as a percentage of the initial nominal amount of the PerpNC6 Notes and the effective date of the write-up (in each case a “Write-up Date”)) no later than 10 calendar days prior to the relevant Interest Payment Date to the Holders of the PerpNC6 Notes in accordance with § 11, to the Calculation Agent, to the Paying Agent, to the other Agents, to the Trustee and, if required by the rules of any stock exchange on which the PerpNC6 Notes are listed from time to time at the request of the Issuer, to such stock exchange. The write-up shall be deemed to be effected at the time when the notice to the Holders is given in accordance with § 11 and the nominal amount of each PerpNC6 Note in the Specified Denomination (including the Redemption Amount) shall be deemed to be increased by the amount specified in the notice with effect as of the Write-up Date.
| (d) | Neither the Trustee nor the Paying Agent will be liable with respect to (i) the calculation or accuracy of the Common Equity Tier 1 Capital Ratio in connection with the occurrence of a Trigger Event and the timing of such Trigger Event, (ii) the Issuer’s failure to post or deliver the underlying Common Equity Tier 1 Capital Ratio calculations of a Trigger Event to the Depositary or the Holders or (iii) any aspect of the Issuer’s decision to deliver a notice of a write-down. |
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§ 6
Paying Agent and Calculation Agent
| (1) | Appointment; Specified Office. The initial Paying Agent and the initial Calculation Agent and their respective initial specified offices shall be: |
Paying Agent
Deutsche Bank Trust Company Americas
Global Securities Services
Global Transaction Banking
60 Wall Street, 24th Floor
Mail Stop: NYC60-2450
New York, New York 10005
United States of America
Calculation Agent
Deutsche Bank Trust Company Americas
Global Securities Services
Global Transaction Banking
60 Wall Street, 24th Floor
Mail Stop: NYC60-2450
New York, New York 10005
United States of America
The Paying Agent and the Calculation Agent reserve the right at any time to change their respective specified office to some other specified office in the same city.
| (2) | Variation or Termination of Appointment. The Issuer reserves the right at any time to vary or terminate the appointment of the Calculation Agent or any Paying Agent and to appoint another Calculation Agent or additional or other Paying Agents. The Issuer shall at all times maintain a Paying Agent and a Calculation Agent. Any variation, termination, appointment or change shall only take effect (other than in the case of insolvency, when it shall be of immediate effect) after not less than 25 nor more than 45 days’ prior notice thereof shall have been given to the Holders in accordance with § 11. |
| (3) | Agents of the Issuer. The Calculation Agent, the Registrar, the Transfer Agent and the Paying Agent act solely as agents of the Issuer and do not assume any obligations towards or relationship of agency or trust for any Holder. |
§ 7
Taxation
| (1) | All payments in respect of this PerpNC6 Note are subject in all cases to (i) any applicable fiscal or other laws and regulations in the place of payment, but without prejudice to the terms described in § 7(2), and (ii) any withholding or deduction required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986 (the “Code”) or otherwise imposed pursuant to Sections 1471 through 1474 of the Code, (or any regulations or agreements thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any law implementing such an intergovernmental agreement) (collectively, “FATCA”). |
| (2) | All amounts payable in respect of the PerpNC6 Notes shall be paid without withholding or deduction for or on account of any present or future taxes or duties of whatever nature imposed or levied by way of withholding or deduction by or in or for the account of the Federal Republic of Germany or any political subdivision or any authority thereof or therein having power to tax unless such withholding or deduction is required by law. In the event of such withholding or deduction on payment of interest (but not in respect of the payment of any principal in respect of the PerpNC6 Notes), the Issuer shall pay such additional amounts (“Additional Amounts”), but only to the extent that such payment would not exceed the Issuer’s Available Distributable Items (as calculated and adjusted as described herein) as shall be necessary in order that the net amounts received by the Holders, after such withholding or deduction, shall equal the respective amounts which would otherwise have been receivable by the Holders in the absence of such withholding or deduction; except that no such Additional Amounts shall be payable on account of any taxes or duties which: |
| (a) | are payable by any person acting as custodian bank or collecting agent on behalf of a Holder, or otherwise in any manner which does not constitute a deduction or withholding by the Issuer or the Paying Agent from payments of principal or interest made by it; or |
| (b) | are payable by reason of the Holder having, or having had, some personal or business connection with Germany and not merely by reason of the fact that payments in respect of the PerpNC6 Notes are, or for purposes of taxation are deemed to be, derived from sources in, or are secured in, Germany; or |
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| (f) | are payable by reason of a change in a law or administrative practice that becomes effective more than 30 days after the relevant payment becomes due, or is duly provided for and notice thereof is published in accordance with § 11, whichever occurs later; or |
| (g) | are avoidable or would have been avoidable through fulfilment of statutory requirements or through the submission of a declaration of non-residence or by otherwise enforcing a claim for exemption vis à vis the relevant tax authority; or |
| (h) | are deducted or withheld in respect of FATCA (as defined in §7 (1)); or |
| (i) | are deducted or withheld because the beneficial owner of the PerpNC6 Notes is not himself the legal owner (Holder) of the PerpNC6 Notes and the deduction or withholding in respect of payments to the beneficial owner would not have been made or the payment of Additional Amounts in respect of a payment to the beneficial owner in accordance with the above provisions could have been avoided if the latter had also been the legal owner (Holder) of the PerpNC6 Notes. |
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 a date on which the payment first becomes due but, if the full amount of the money payable has not been received by the Paying Agent on or before the due date, it means the date on which, the full amount of the money having been so received, notice to that effect shall have been duly given to the Holders by the Issuer.
For the avoidance of doubt, no Additional Amounts shall be payable in respect of (i) principal, interest or other amounts written down pursuant to a Resolution Measure, (ii) interest cancelled pursuant to § 3 (8) or (iii) principal written down pursuant to § 5 (9)(b).
§ 8
Amendments to the Capital Securities Indenture and this PerpNC6 Note
| (1) | Amendment to the Capital Securities Indenture and this PerpNC6 Note. Subject to the approval of the Issuer’s competent supervisory authority, if required under the CRR or other applicable laws and regulations for the recognition of the PerpNC6 Notes as Additional Tier 1 capital, the Issuer and the Trustee may amend, modify or supplement the Capital Securities Indenture or this PerpNC6 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 give effect to any variation to the terms of this PerpNC6 Note as a result of any exercise of a Resolution Measure 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. Notwithstanding the foregoing, any amendment made solely to conform the provisions of the Supplemental Capital Securities Indenture to the description of the PerpNC6 Notes contained in the Issuer’s prospectus supplement dated February 11, 2020 will not be deemed to adversely affect the interests of the Holders. |
| (2) | Majority. Subject to the prior consent of the Issuer’s competent supervisory authority, if required under the CRR or other applicable laws and regulations for the recognition of the PerpNC6 Notes as Additional Tier 1 capital, the Capital Securities 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 capital securities of all series issued under the Capital Securities 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, other than cancellations of interest payments pursuant to § 3 (8) and write-downs pursuant to § 5 (9)(b), the Issuer and the Trustee may not, without the consent of the Holder of each outstanding debt security affected hereby, (a) (i) introduce a final maturity of this PerpNC6 Note, (ii) reduce the principal amount hereof, (iii) reduce any amount payable on redemption hereof, (iv) make the principal hereof (including any amount in respect of original issue discount), or interest hereon payable in any coin or currency other than that provided in this PerpNC6 Note or in accordance with the terms hereof, (v) modify or amend any provisions for converting any currency into |
B-21
| any other currency as provided in this PerpNC6 Note or in accordance with the terms hereof, (vi) impair or affect the right of any Holder to institute suit for the payment hereof, (vii) modify the provisions of the Capital Securities Indenture with respect to the subordination of this PerpNC6 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 Capital Securities 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. |
§ 9
Replacement, No Sinking Fund
| (1) | Replacement of the PerpNC6 Notes. In case this PerpNC6 Note shall at any time become mutilated, defaced or be destroyed, lost or stolen and this PerpNC6 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 PerpNC6 Note of like tenor in exchange for this PerpNC6 Note, but, in the case of any destroyed or lost or stolen PerpNC6 Note, only upon receipt of evidence satisfactory to the Trustee and the Issuer that this PerpNC6 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 PerpNC6 Note shall be borne by the owner of this PerpNC6 Note mutilated, defaced, destroyed, lost or stolen. |
| (2) | No Sinking Fund. This PerpNC6 Note will not be subject to any sinking fund. The PerpNC6 Note may be redeemed at the option of the Issuer as described in § 5 of this PerpNC6 Note. |
§ 10
Further Issues, Purchases and Cancellation
| (1) | Further Issues. The Issuer may from time to time, without the consent of the Holders, issue further PerpNC6 Notes having the same terms and conditions as the PerpNC6 Notes in all respects (or in all respects except for the issue date, interest commencement date and/or issue price) so as to form a single series with the PerpNC6 Notes. |
| (2) | Purchases. The Issuer may, with the prior approval of the competent supervisory authority of the Issuer, purchase PerpNC6 Notes in a regulated market or otherwise at any price (i) for market-making purposes within the limits permitted by the Issuer’s competent supervisory authority or (ii) after the fifth anniversary of the Interest Commencement Date. PerpNC6 Notes purchased by the Issuer may, at the option of the Issuer, be held, resold or surrendered to the Paying Agent for cancellation. If purchases are made by public tender, tenders for such PerpNC6 Notes must be made available to all Holders of such PerpNC6 Notes alike in accordance with § 11. |
| (3) | Cancellation. All PerpNC6 Notes redeemed in full shall be cancelled forthwith and may not be reissued or resold. |
§ 11
Notices
| (1) | Notices and Demands on Issuer. Any notice or demand which by any provision of this PerpNC6 Note or the Capital Securities Indenture is required or permitted to be given or served by the Trustee, by the Agents or by the Holders to or on the Issuer may be given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address is filed with the Trustee) as follows: |
If to the Issuer, to:
Deutsche Bank AG
Attn: Treasury, Issuance
Mainzer Landstrasse 11-17
60329 Frankfurt am Main
Germany
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| (2) | Notices and Demands on Trustee. Any notice, direction, request or demand by the Issuer, by the Agents or by any Holder 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: |
The Bank of New York Mellon, London Branch
One Canada Square
London, E14 5AL
United Kingdom
with a copy to:
The Bank of New York Mellon, London Branch
Corporate Trust Administration
Internal Corporate Trust Services
Merck House
Seldown, Poole
Dorset BH15 1PX
United Kingdom
| (3) | Notices and Demands on Agents. Any notice, direction, request or demand by the Issuer, by the Trustee or by any Holder 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 Securities Services
Global Transaction Banking
60 Wall Street, 24th Floor
Mail Stop: NYC60-2450
New York, New York 10005
United States of America
Fax: 732-578-4635
Attn: Corporates Team – Deutsche Bank AG
with a copy to:
Deutsche Bank Trust Company Americas
Global Securities Services
Global Transaction Banking
60 Wall Street, 24th Floor
Mail Stop: NYC60-2405
New York, New York 10005
United States of America
Fax: 732-578-4635
Attn: Corporates Team – Deutsche Bank AG
| (4) | Notices to Holders. |
| (a) | Notices to be given to Holders represented by this PerpNC6 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 this PerpNC6 Note held in street name will be given only to the bank, broker or other financial institution in whose name the PerpNC6 Notes are registered, and not the owner of any beneficial interests. Notices to be given to Holders of PerpNC6 Notes in definitive form will be sent by mail to the respective addresses of the Holders as they appear in the register of the PerpNC6 Notes, and will be deemed given when mailed. |
| (b) | Notice by mail shall be made to each Holder’s address as that address appears in the register for the PerpNC6 Notes by first class mail, postage prepaid, and may 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 Depositary or systems through which beneficial interests in this PerpNC6 Note are owned. |
| (5) | Any notice given pursuant to the terms of this PerpNC6 Note or the Capital Securities Indenture will be deemed given or delivered, as the case may be, when such notice is mailed or otherwise transmitted (or first published, in the case of publication in a newspaper) pursuant to the terms of this PerpNC6 Note and the Capital Securities Indenture. |
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§ 12
No Defaults or Events of Default; Remedies
| (1) | Defaults; Events of Default. There are no defaults or events of default under this PerpNC6 Note, and under no circumstances may the Holders declare the principal amount of this PerpNC6 Note and interest accrued thereon to be due and payable. |
| (2) | If the Issuer does not make payments of principal of, interest on, or other amounts owing under this PerpNC6 Note (i) pursuant to the subordination provisions of the PerpNC6 Notes, (ii) due to a Resolution Measure, (iii) as a result of any cancellation of interest pursuant to § 3 (8) or (iv) as a result of any write-down pursuant to § 5 (9)(b), the Issuer will not be in default, and none of the Trustee and the Holders shall be permitted to demand repayment of this PerpNC6 Note. Moreover, in the event of a Resolution Measure, a cancellation of interest pursuant to § 3 (8) or a write-down pursuant to § 5 (9)(b), the Holder of this PerpNC6 Note may permanently lose the right to receive such payments. If the Issuer does not make payments of principal of, interest on, or other amounts owing under this PerpNC6 Note when due for reasons other than (i) pursuant to the subordination provisions of the PerpNC6 Notes, (ii) due to a Resolution Measure, (iii) as a result of any cancellation of interest pursuant to § 3 (8) or (iv) as a result of any write-down pursuant to § 5 (9)(b), the Issuer will be in breach of its obligations under the Capital Securities Indenture. Nevertheless, neither the Trustee nor the Holders may demand repayment of this PerpNC6 Note in any such case. Furthermore, if the Issuer becomes subject to German insolvency proceedings, the Trustee and Holder of this PerpNC6 Note will have no right to file a claim against the Issuer unless the competent insolvency court allows the filing of subordinated claims. |
| (3) | Upon the occurrence of any non-payment of principal of, interest on, or other amounts owing under this PerpNC6 Note (other than (i) pursuant to the subordination provisions of the PerpNC6 Notes, (ii) due to a Resolution Measure, (iii) as a result of any cancellation of interest pursuant to § 3 (8) or (iv) as a result of any write-down pursuant to § 5 (9)(b)), the Issuer shall give prompt written notice to the Trustee and the Paying Agent. In such case and subject to § 2 (6), the Trustee may proceed to protect and enforce its rights and the rights of the Holders in accordance with the Capital Securities Indenture whether in connection with any Non-Payment Event under the terms of the Base Capital Securities Indenture or breach by the Issuer of its obligations under this PerpNC6 Note, the Capital Securities Indenture or otherwise, by such judicial proceedings as the Trustee shall deem most effective as directed by the Holders, 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 PerpNC6 Note prior to any date on which the principal of, or any interest on, this PerpNC6 Note would have otherwise been payable. |
| (4) | By its acquisition of the PerpNC6 Notes, each Holder shall be deemed irrevocably to have agreed and does agree that (i) the imposition of a Resolution Measure by the competent resolution authority with respect to the PerpNC6 Notes (ii) a cancellation of interest pursuant to § 3 (8) or (iii) a write-down pursuant to § 5 (9)(b) shall not give rise to a default for purposes of Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act. |
| (5) | Other than the limited remedies specified in (2) and (3) above, no remedy against the Issuer shall be available to the Trustee or the Holders whether for the recovery of amounts owing in respect of this PerpNC6 Note or under the Capital Securities Indenture or in respect of any breach by the Issuer of its obligations under the Capital Securities Indenture or in respect of this PerpNC6 Note, except that the Trustee and the Holders shall have such rights and powers as they are required to have under the Trust Indenture Act, and provided that any payments are subject to the subordination provisions of the PerpNC6 Notes, any Resolution Measure, a cancellation of interest pursuant to § 3 (8) or a write-down pursuant to § 5 (9)(b). |
§ 13
Other Currencies
If any amounts with respect to any instrument are not expressed in the functional currency of the Issuer, for the purposes of these PerpNC6 Notes and the Capital Securities Indenture such amounts will be converted into such functional currency at the then-prevailing exchange rate, as determined by the Issuer in its reasonable discretion, or such other procedure as provided by applicable regulations from time to time.
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§ 14
Applicable Law and Place of Jurisdiction
| (1) | Applicable Law. This PerpNC6 Note and the Capital Securities 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, other than the provisions of § 2 (2) hereof and Section 13.01 of the Base Capital Securities Indenture relating to the ranking of the PerpNC6 Notes and their status, which provisions shall be governed by and construed in accordance with the laws of the Federal Republic of Germany, including, in relation to such provisions, any determination of whether a Resolution Measure has been imposed on the Issuer, and except as may otherwise be required by mandatory provisions of law. |
| (2) | Submission to Jurisdiction. The Issuer agrees that any legal suit, action or proceeding arising out of or based upon this PerpNC6 Note or the Capital Securities 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 the parties hereto have any obligation under this PerpNC6 Note, 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, 60 Wall Street, Mail Stop NYC60-3701, New York 10005, Attention: Office of the Secretary as its Authorized Agent, and represents and warrants that the Authorized Agent has agreed to act as said agent for service of process. |
| (3) | Limitations on Suits by Holders. No Holder shall have any right by virtue or by availing of any provision of this PerpNC6 Note and the Capital Securities Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this PerpNC6 Note or under the Capital Securities Indenture, or for the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of non-payment and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than a majority in aggregate principal amount of the PerpNC6 Notes of each affected series then outstanding (treated as a single class) shall have made written request upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceeding and no direction inconsistent with such written request shall have been given to the Trustee; it being understood and intended, and being expressly covenanted by the Holder of every PerpNC6 Note with every other Holder and the Trustee, that no one or more Holders of PerpNC6 Notes shall have any right in any manner whatever by virtue or by availing of any provision of this PerpNC6 Note or the Capital Securities Indenture to affect, disturb or prejudice the rights of any other such Holder, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this PerpNC6 Note or the Capital Securities Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders. For the protection and enforcement of the provisions of this section, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity. |
B-25
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
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the within PERPNC6 NOTE and all rights thereunder, hereby irrevocably constituting and appointing such person attorney to transfer such PERPNC6 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 PERPNC6 NOTE in every particular without alteration or enlargement or any change whatsoever. |
B-26
Exhibit B
FORM OF NOTICE TO DTC AND FOR PUBLICATION AS A NOTICE TO HOLDERS
[Deutsche Bank Aktiengesellschaft Letterhead]
| To: | The Depository Trust Company |
55 Water Street, 25th Floor
New York, New York 10041-0099
United States of America
Attn: Mandatory Reorganization Department
Fax: +1 (212) 855-5488
Email: mandatoryreorgannouncements@dtcc.com
Re: Deutsche Bank Aktiengesellschaft’s $1,250,000,000 Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 (CUSIP: 251525 AX9, ISIN: US251525AX97) – Notice to DTC, the Trustee, the Paying Agent, Holders of the Occurrence of a Trigger Event
This notice is in relation to Deutsche Bank Aktiengesellschaft’s (the “Company”) $1,250,000,000 Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 (CUSIP: 251525 AX9, ISIN: US251525AX97) (the “Notes”) issued under a Capital Securities Indenture (as defined below), consisting of a base capital securities indenture, dated as of November 6, 2014, among the Company, The Bank of New York Mellon, as trustee (the “Trustee”), and Deutsche Bank Trust Company Americas (“DBTCA”), as paying agent, calculation agent, transfer agent and registrar and authenticating agent, a second supplemental capital securities indenture, dated as of July 25, 2019, among the Company, the Trustee, acting through its London Branch, and DBTCA, adding certain provisions to, and modifying certain provisions of, the Base Capital Securities Indenture, a fourth supplemental capital securities indenture, dated as of February 14, 2020, among the Company, the Trustee, acting through its London Branch, and DBTCA, adding certain provisions to, and modifying certain provisions of, the Base Capital Securities Indenture, and a fifth supplemental capital securities indenture, dated February 14, 2020, among the Company, the Trustee, acting through its London Branch, and DBTCA, relating to the Notes (together, the “Capital Securities Indenture”), and pursuant to the prospectus supplement dated February 11, 2020, supplementing the prospectus dated August 20, 2018. Capitalized terms used herein and not defined herein shall have the respective meanings ascribed to such terms in the Capital Securities Indenture.
The Company hereby notifies the Depositary Trust Company (“DTC”), the Holders, the Trustee and DBTCA that a Trigger Event has occurred with respect to the Notes. A Trigger Event has occurred because the Common Equity Tier 1 capital ratio pursuant to Article 92 (1) (a) of the CRR or any successor provision, determined on a consolidated basis, has fallen below 5.125 per cent.
Upon the occurrence of a Trigger Event, the terms of the Notes provide that the redemption amount and the nominal amount of the Notes will be reduced by the amount of the relevant write-down, as calculated in accordance with the Capital Securities Indenture. [Include the following if the amount of the write-down is known at the time of the notice of the Trigger Event. Otherwise, include the following in a separate notice of the amount of the write-down pursuant to Section 6.11(b).] [After giving effect to the write-down, the Notes will have a remaining nominal amount of $[ ]. Accordingly, the Company hereby instructs DTC to indicate to all participants that payments of principal and interest are no longer payable with respect to the portion of the Notes that have been written down as of the date hereof.] [Include the following if the amount of the write-down is not known at the time of the notice of the Trigger Event.] [The Company will provide notice of the amount of the write-down within one month of [Date of Trigger Event] at which time the write-down expected to be effected.]
The Company further requests DTC to post this notice on its Reorganization Inquiry for Participants System (or such other system as DTC uses for providing notices to holders of securities).
C-1
Should DTC or any Holder have any inquiries, please contact:
[Deutsche Bank Aktiengesellschaft Contact Person]
[Telephone]
[Fax]
[Email]
C-2
Exhibit C
FORM OF NOTICE TO THE TRUSTEE AND THE PAYING AGENT FOR INFORMATIONAL PURPOSES
[Deutsche Bank Aktiengesellschaft Letterhead]
| To: The Bank of New York Mellon, London Branch Merck House Seldown Poole, Dorset BH15 1PX United Kingdom Attn: International Corporate Trust Services Email: corpsov2@bnymellon.com Fax: +44-1202-689600 Tel: +44-1202-689978 |
The Bank of New York Mellon, London Branch One Canada Square London, E14 5AL United Kingdom Email: corpsov2@bnymellon.com Fax: +44-207-964-2536 | |
| Deutsche Bank Trust Company Americas Global Securities Services Global Transaction Banking 60 Wall Street, 24th Floor Mail Stop: NYC60-2405 New York, New York 10005 United States of America Facsimile: +1-732-578-4635 |
||
Re: Deutsche Bank Aktiengesellschaft’s $1,250,000,000 Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 (CUSIP: 251525 AX9, ISIN: US251525AX97) – Notice to DTC, the Trustee, the Paying Agent, Holders of the Occurrence of a Trigger Event
This notice is in relation to Deutsche Bank Aktiengesellschaft’s (the “Company”) $1,250,000,000 Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 (CUSIP: 251525 AX9, ISIN:US251525AX97) (the “Notes”) issued under a Capital Securities Indenture (as defined below), consisting of a base capital securities indenture, dated as of November 6, 2014, among the Company, The Bank of New York Mellon, as trustee (the “Trustee”), and Deutsche Bank Trust Company Americas (“DBTCA”), as paying agent, calculation agent, transfer agent and registrar and authenticating agent, a second supplemental capital securities indenture, dated as of July 25, 2019, among the Company, the Trustee, acting through its London Branch, and DBTCA, adding certain provisions to, and modifying certain provisions of, the Base Capital Securities Indenture, a fourth supplemental capital securities indenture, dated as of February 14, 2020, among the Company, the Trustee, acting through its London Branch, and DBTCA, adding certain provisions to, and modifying certain provisions of, the Base Capital Securities Indenture, and a fifth supplemental capital securities indenture, dated February 14, 2020, among the Company, the Trustee, acting through its London Branch, and DBTCA, relating to the Notes (together, the “Capital Securities Indenture”), and pursuant to the prospectus supplement dated February 11, 2020, supplementing the prospectus dated August 20, 2018. Capitalized terms used herein and not defined herein shall have the respective meanings ascribed to such terms in the Capital Securities Indenture.
The Company hereby notifies the Depositary Trust Company (“DTC”), the Holders, the Trustee and DBTCA that a Trigger Event has occurred with respect to the Notes. A Trigger Event has occurred because the Common Equity Tier 1 capital ratio pursuant to Article 92 (1) (a) of the CRR or any successor provision, determined on a consolidated basis, has fallen below 5.125 per cent.
D-1
Upon the occurrence of a Trigger Event, the terms of the Notes provide that the redemption amount and the nominal amount of the Notes will be reduced by the amount of the relevant write-down, as calculated in accordance with the Capital Securities Indenture. [Include the following if the amount of the write-down is known at the time of the notice of the Trigger Event. Otherwise, include the following in a separate notice of the amount of the write-down pursuant to Section 6.11(b).] [After giving effect to the write-down, the Notes will have a remaining nominal amount of $[ ]. Accordingly, the Company hereby instructs DTC to indicate to all participants that payments of principal and interest are no longer payable with respect to the portion of the Notes that have been written down as of the date hereof.] [Include the following if the amount of the write-down is not known at the time of the notice of the Trigger Event.] [The Company will provide notice of the amount of the write-down within one month of [Date of Trigger Event] at which time the write-down is expected to be effected.]
The Company further requests DTC to post this notice on its Reorganization Inquiry for Participants System (or such other system as DTC uses for providing notices to holders of securities).
Should DTC or any Holder have any inquiries, please contact:
[Deutsche Bank Aktiengesellschaft Contact Person]
[Telephone]
[Fax]
[Email]
D-2
Exhibit D
FORM OF NOTICE TO DTC AND FOR PUBLICATION AS A NOTICE TO HOLDERS
[Deutsche Bank Aktiengesellschaft Letterhead]
| To: | The Depository Trust Company |
55 Water Street, 25th Floor
New York, New York 10041-0099
United States of America
Attn: Mandatory Reorganization Department
Fax: +1 (212) 855-5488
Email: mandatoryreorgannouncements@dtcc.com
Re: Deutsche Bank Aktiengesellschaft’s $1,250,000,000 Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 (CUSIP: 251525 AX9, ISIN: US251525AX97) – Notice to DTC, the Trustee, the Paying Agent, Holders of Interest Cancellation
This notice is in relation to Deutsche Bank Aktiengesellschaft’s (the “Company”) $1,250,000,000 Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 (CUSIP: 251525 AX9, ISIN:US251525AX97) (the “Notes”) issued under a Capital Securities Indenture (as defined below), consisting of a base capital securities indenture, dated as of November 6, 2014, among the Company, The Bank of New York Mellon, as trustee (the “Trustee”), and Deutsche Bank Trust Company Americas (“DBTCA”), as paying agent, calculation agent, transfer agent and registrar and authenticating agent, a second supplemental capital securities indenture, dated as of July 25, 2019, among the Issuer, the Trustee, acting through its London Branch, and DBTCA, adding certain provisions to, and modifying certain provisions of, the Base Capital Securities Indenture, a fourth supplemental capital securities indenture, dated as of February 14, 2020, among the Company, the Trustee, acting through its London Branch, and DBTCA, adding certain provisions to, and modifying certain provisions of, the Base Capital Securities Indenture, and a fifth supplemental capital securities indenture, dated February 14, 2020, among the Company, the Trustee, acting through its London Branch, and DBTCA, relating to the Notes (together, the “Capital Securities Indenture”), and pursuant to the prospectus supplement dated February 11, 2020, supplementing the prospectus dated August 20, 2018. Capitalized terms used herein and not defined herein shall have the respective meanings ascribed to such terms in the Capital Securities Indenture.
The Company hereby notifies the Depositary Trust Company (“DTC”), the Holders, the Trustee and DBTCA that the Company has exercised its right, in its sole discretion, to cancel [all interest][identify portion thereof cancelled] payable on April 30, 20[ ]. Accordingly, the Company hereby instructs DTC to indicate to all participants that [no interest][identify portion thereof cancelled] will be payable with respect the Notes on April 30, 20[ ].
The Company further requests DTC to post this notice on its Reorganization Inquiry for Participants System (or such other system as DTC uses for providing notices to holders of securities).
Should DTC or any Holder have any inquiries, please contact:
[Deutsche Bank Aktiengesellschaft Contact Person]
[Telephone]
[Fax]
[Email]
E-1
Exhibit E
FORM OF NOTICE TO THE TRUSTEE AND THE PAYING AGENT FOR INFORMATIONAL PURPOSES
[Deutsche Bank Aktiengesellschaft Letterhead]
| To: The Bank of New York Mellon, London Branch Merck House Seldown Poole, Dorset BH15 1PX United Kingdom Attn: International Corporate Trust Services Email: corpsov2@bnymellon.com Fax: +44-1202-689600 Tel: +44-1202-689978 |
The Bank of New York Mellon, London Branch One Canada Square London, E14 5AL United Kingdom Email: corpsov2@bnymellon.com Fax: +44-207-964-2536 | |
| Deutsche Bank Trust Company Americas Global Securities Services Global Transaction Banking 60 Wall Street, 24th Floor Mail Stop: NYC60-2405 New York, New York 10005 United States of America Facsimile: +1-732-578-4635 |
||
Re: Deutsche Bank Aktiengesellschaft’s $1,250,000,000 Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 (CUSIP: 251525 AX9, ISIN: US251525AX97) – Notice to DTC, the Trustee, the Paying Agent, Holders of Interest Cancellation
This notice is in relation to Deutsche Bank Aktiengesellschaft’s (the “Company”) $1,250,000,000 Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 (CUSIP: 251525 AX9, ISIN:US251525AX97) (the “Notes”) issued under a Capital Securities Indenture (as defined below), consisting of a base capital securities indenture, dated as of November 6, 2014, among the Company, The Bank of New York Mellon, as trustee (the “Trustee”), and Deutsche Bank Trust Company Americas (“DBTCA”), as paying agent, calculation agent, transfer agent and registrar and authenticating agent, a second supplemental capital securities indenture, dated as of July 25, 2019, among the Company, the Trustee, acting through its London Branch, and DBTCA, adding certain provisions to, and modifying certain provisions of, the Base Capital Securities Indenture, a fourth supplemental capital securities indenture, dated as of February 14, 2020, among the Company, the Trustee, acting through its London Branch, and DBTCA, adding certain provisions to, and modifying certain provisions of, the Base Capital Securities Indenture, and a fifth supplemental capital securities indenture, dated February 14, 2020, among the Company, the Trustee, acting through its London Branch, and DBTCA, relating to the Notes (together, the “Capital Securities Indenture”), and pursuant to the prospectus supplement dated February 11, 2020, supplementing the prospectus dated August 20, 2018. Capitalized terms used herein and not defined herein shall have the respective meanings ascribed to such terms in the Capital Securities Indenture.
The Company hereby notifies the Depositary Trust Company (“DTC”), the Holders, the Trustee and DBTCA that the Company has exercised its right, in its sole discretion, to cancel [all interest][identify portion thereof cancelled] payable on April 30, 20[ ]. Accordingly, the Company hereby instructs DTC to indicate to all participants that [no interest][identify portion thereof cancelled] will be payable with respect the Notes on April 30, 20[ ].
E-1
The Company further requests DTC to post this notice on its Reorganization Inquiry for Participants System (or such other system as DTC uses for providing notices to holders of securities).
Should DTC or any Holder have any inquiries, please contact:
[Deutsche Bank Aktiengesellschaft Contact Person]
[Telephone]
[Fax]
[Email]
E-2
Exhibit 5.4
Writer’s Direct Dial: +49 69 97 10 30
E-Mail: wgreenberg@cgsh.com
| EXHIBIT 5.4 | ||
| Deutsche Bank Aktiengesellschaft Taunusanlage 12 |
February 14, 2020 | |
| 60325 Frankfurt am Main | ||
| Germany |
Ladies and Gentlemen:
We have acted as special United States counsel to Deutsche Bank Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany (the “Bank”), in connection with the Bank’s offering pursuant to a registration statement on Form F-3 (No. 333 226421) of $1,250,000,000 aggregate principal amount of the Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 (the “Notes”) to be issued under a capital securities indenture dated as of November 6, 2014 (the “Base Indenture”), as supplemented by the second supplemental capital securities indenture dated July 25, 2019 (the “Second Supplemental Indenture”), as further supplemented by the fourth supplemental capital securities indenture dated February 14, 2020 (the “Fourth Supplemental Indenture”) and as additionally supplemented by the fifth supplemental capital securities indenture dated February 14, 2020 (the “Fifth Supplemental Indenture” and, together with the Base Indenture, the Second Supplemental Indenture and the Fourth Supplemental Indenture, the “Indenture”), in each case among the Bank, The Bank of New York Mellon, as trustee (the “Trustee”), and Deutsche Bank Trust Company Americas, as paying agent, calculation agent, transfer agent and registrar and authenticating agent (the “Agent”). Such registration statement, as amended as of its most recent effective date (February 10, 2020), insofar as it relates to the Notes (as determined for purposes of Rule 430B(f)(2) under the Securities Act of 1933, as amended (the “Securities Act”)), including the
documents incorporated by reference therein but excluding any related Form T-1 filing, is herein called the “Registration Statement;” the related prospectus dated August 18, 2020, included in the Registration Statement filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act, including the documents incorporated by reference therein, is herein called the “Base Prospectus;” the preliminary prospectus supplement dated February 10, 2020, as filed with the Commission pursuant to Rule 424(b) under the Securities Act, including the documents incorporated by reference therein, is herein called the “Preliminary Prospectus Supplement;” and the related prospectus supplement dated February 11, 2020, as filed with the Commission pursuant to Rule 424(b) under the Securities Act, including the documents incorporated by reference therein, is herein called the “Final Prospectus Supplement.” The Base Prospectus and the Preliminary Prospectus Supplement together are herein called the “Pricing Prospectus,” and the Base Prospectus and the Final Prospectus Supplement together are herein called the “Final Prospectus.”
In arriving at the opinion expressed below, we have reviewed the following documents:
| (a) | the Registration Statement; |
| (b) | copies of the Notes in global form as executed by the Bank and authenticated by the Agent; and |
| (c) | an executed copy of the Indenture. |
In addition, we have made such investigations of law as we have deemed appropriate as a basis for the opinion expressed below.
In rendering the opinion expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed.
2
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that the Notes have been duly executed and delivered by the Bank under the law of the State of New York and are the valid, binding and enforceable obligations of the Bank, entitled to the benefits of the Indenture (except that we express no opinion with respect to the validity, binding effect or enforceability of (i) the provisions of § 2 (2) of the terms of the Notes relating to the ranking of the Notes and their status, which provisions are expressed to be governed by German law, including, in relation to such provisions, any determination of whether a Resolution Measure (as defined in the Notes) has been imposed on the Bank, or (ii) Section 1.02(l) of the Second Supplemental Indenture and Section 2.03(i) of the Fifth Supplemental Indenture (and the corresponding provisions in the Notes) providing for the survival of the Bank’s obligations to indemnify the Trustee in accordance with Sections 6.02 and 6.06 of the Base Indenture after the imposition of a Resolution Measure by the competent resolution authority (each as defined in the Second Supplemental Indenture) with respect to the Notes).
Insofar as the foregoing opinion relates to the validity, binding effect or enforceability of any agreement or obligation of the Bank, (a) we have assumed that the Bank and each other party to such agreement or obligation has satisfied those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption is made as to the Bank regarding matters of the federal law of the United States of America or the law of the State of New York that in our experience normally would be applicable to general business entities with respect to such agreement or obligation), (b) such opinion is subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity, (c) we express no opinion with respect to the effect of any mandatory choice of law rules and (d) such opinion is subject to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors’ rights.
The foregoing opinion is limited to the federal law of the United States of America and the law of the State of New York.
With respect to the first sentence of Section 11.12 of the Base Indenture and Section 14.02 of the Fifth Supplemental Indenture, we express no opinion as to the subject matter jurisdiction of any United States Federal court to adjudicate any action relating to the Notes where jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332 does not exist. We express no opinion as to the enforceability of Section 11.13 of the Base Indenture relating to currency indemnity.
3
We hereby consent to the use of our name in each of the Pricing Prospectus and the Final Prospectus under the heading “Legal Matters,” as counsel for the Bank who has passed on the validity of the Notes and to the filing of this opinion with the Commission as Exhibit 5.4 to the Bank’s Current Report on Form 6-K dated February 14, 2020. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder. We assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinion expressed herein.
| Very truly yours, | ||
| CLEARY GOTTLIEB STEEN & HAMILTON LLP | ||
| By: | /s/ Ward A. Greenberg | |
| Ward A. Greenberg, a Partner | ||
4
Exhibit 5.5
[Deutsche Bank Letterhead]
| To: | Deutsche Bank Aktiengesellschaft |
Taunusanlage 12
60325 Frankfurt am Main
Germany
February 14, 2020
Deutsche Bank Aktiengesellschaft – $1,250,000,000 Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020
Ladies and Gentlemen:
In our capacity as counsel of Deutsche Bank Aktiengesellschaft (the “Bank”), we have advised the Bank as to matters of German law in connection with the offering and sale (the “Offer”) pursuant to a registration statement on Form F-3 (No. 333-226421) filed with the Securities and Exchange Commission (the “Commission”) on July 30, 2018 (the “Registration Statement”), as amended by pre-effective amendment no. 1, filed with the Commission on August 14, 2018, and as further amended by pre-effective amendment no. 2, filed with the Commission on August 17, 2018 and declared effective by the Commission on August 20, 2018, and the base prospectus dated August 20, 2018, as supplemented by the preliminary prospectus supplement dated February 10, 2020 and the final prospectus supplement dated February 11, 2020 (together, the “Prospectus”) of $1,250,000,000 aggregate principal amount of the Undated Non-cumulative Fixed to Reset Rate Additional Tier 1 Notes of 2020 (the “Notes”) issued by the Bank pursuant to a Capital Securities Indenture, dated November 6, 2014 (the “Base Capital Securities Indenture”), as supplemented by the Second Supplemental Capital Securities Indenture, dated July 25, 2019 (the “Second Supplemental Capital Securities Indenture”), as further supplemented by the Fourth Supplemental Capital Securities Indenture, dated February 14, 2020 (the “Fourth Supplemental Securities Indenture”), and as additionally supplemented by the Fifth Supplemental Capital Securities Indenture dated February 14, 2020 (the “Fifth Supplemental Capital Securities Indenture” and, together with the Base Capital Securities Indenture, the Second Supplemental Capital Securities Indenture and the Fourth Supplemental Capital Securities Indenture, the “Capital Securities Indenture”), in each case among the Bank, The Bank of New York Mellon, as trustee (the “Trustee”), and Deutsche Bank Trust Company Americas, as paying agent, calculation agent, transfer agent, and registrar and authenticating agent (the “Agent”).
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 the State 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 affects this opinion.
For the purpose of this opinion we have examined the following documents:
| (a) | the Articles of Association (Satzung) of the Bank as currently in force; |
| (b) | scanned copies of the Capital Securities Indenture and the Notes in global form as executed by the Bank and authenticated by the Agent (collectively, the “Transaction Documents”); |
| (c) | electronic copies of the Registration Statement and the Prospectus; |
| (d) | scanned copies of the powers of attorney issued on behalf of the Bank by Christian Sewing and James von Moltke, members of the Management Board of the Bank, on July 17, 2018; |
| (e) | such other documents as we have deemed necessary to enable us to give this opinion. |
We have relied, as to matters of fact, on certificates of the responsible officers of the Bank and public officials. We have assumed that:
| (i) | the 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 the State of New York (by which they are expressed to be governed, other than the provisions of Section 13.01 of the Capital Securities Indenture and § 2 (2) of the terms of the Notes relating to the ranking of the Notes and their status, which provisions are expressed to be governed by the laws of Germany, including, in relation to such provisions, any determination of whether a resolution measure has been imposed on the Bank (the “German Law Provisions”)), except that no such assumption is made as to the German Law Provisions; |
| (iii) | the Notes are being offered and sold as contemplated by the Registration Statement and the Prospectus; |
| (iv) | the Base Capital Securities Indenture has not subsequently been amended in a manner applicable to the Notes other than by means of the Second Supplemental Capital Securities Indenture, the Fourth Supplemental Capital Securities Indenture and the Fifth Supplemental Capital Securities Indenture; |
| (v) | the Notes have not subsequently been amended; |
| (vi) | the Powers of Attorney have not subsequently been amended; and |
| (vii) | all signatures on all documents submitted to us are genuine and that copies of all documents submitted to us are complete and conform to the originals. |
Based upon the foregoing we are of the opinion that:
| (1) | the Bank is duly organized and validly existing as a stock corporation (Aktiengesellschaft) under the laws of Germany and had the corporate power to, and undertook 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; |
2
| (3) | the execution and delivery of the Transaction Documents have been duly authorized by all necessary corporate action of the Bank; |
| (4) | the Capital Securities Indenture has been validly executed and delivered on behalf of the Bank and constitutes a valid and binding obligation of the Bank; |
| (5) | the terms of the Notes, having been established by the Fifth Supplemental Capital Securities Indenture, have been duly authorized by the Bank; |
| (6) | the Notes have been validly executed and delivered on behalf of the Bank and constitute valid and binding obligations of the Bank; and |
| (7) | the courts in Germany (assuming they accept jurisdiction) would observe and give effect to the choice of the laws of the State of New York as governing the Transaction Documents, except for the German Law Provisions thereof, with respect to which such courts would observe and give effect to German law. |
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; |
3
| (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; and |
| (F) | we do not express an opinion as to any rights and obligations the Bank may have or appears to have under the Transaction Documents against itself. |
We hereby consent to the use of our name in the Prospectus under the heading “Legal Matters”, as counsel for the Bank who has passed on the validity of the Notes, to the filing of this opinion with the Commission as Exhibit 5.5 to the Bank’s Current Report on Form 6-K, dated February 14, 2020, and to the incorporation by reference of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended or the rules and regulations of the Commission promulgated thereunder.
This opinion is furnished by us, as counsel of the Bank, in connection with the Offer and, except as provided in the immediately preceding paragraph, is not to be used, circulated, quoted or otherwise referred to for any other purpose without our prior written approval in each instance, or relied upon by any other person. 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/ Volker Butzke |
/s/ Dr. Mathias Otto | |
| Volker Butzke Senior Counsel Deutsche Bank AG |
Dr. Mathias Otto General Counsel of Infrastructure and Regulatory Advice Deutsche Bank AG |
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