Deutsche Bank Aktiengesellschaft F-3/A, filed Apr 26, 2024
Deutsche Bank Aktiengesellschaft (DB)
Table of Contents
As filed with the Securities and Exchange Commission on April 26, 2024
Registration No. 333-278331
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DEUTSCHE BANK AKTIENGESELLSCHAFT
(Exact name of Registrant as specified in its charter)
DEUTSCHE BANK CORPORATION
(Translation of Registrant’s name into English)
| Federal Republic of Germany |
Not Applicable | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
Taunusanlage 12
60325 Frankfurt am Main
Germany
+49-69-910-00
(Address and telephone number of Registrant’s principal executive offices)
DB USA Corporation
c/o Office of the Secretary
1 Columbus Circle, 19th Floor
New York, New York 10019-8735
Attention: Office of the Secretary
212-250-2500
(Name, address and telephone number of agent for service)
Copies to:
Deutsche Bank Aktiengesellschaft
Taunusanlage 12
60325 Frankfurt am Main
Germany
Attn: Legal Dept.
| David Gottlieb | Leo Borchardt | |
| Cleary Gottlieb Steen & Hamilton LLP | Davis Polk & Wardwell London LLP | |
| 2 London Wall Place | 5 Aldermanbury Square | |
| London EC2Y 5AU | London EC2V 7HR | |
| United Kingdom | United Kingdom | |
| +44 20 7614 2200 | +44 20 7418 1300 |
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”), please check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act Registration Statement number of the earlier effective Registration Statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective Registration Statement for the same offering. ☐
If this Form is a Registration Statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the Registrant is an emerging growth company as defined in Rule 405 of the Securities Act. Emerging growth company ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the Registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
Table of Contents
The information in this prospectus is not complete and may be changed. We may not sell any securities until the registration statement filed with the United States Securities and Exchange Commission is effective. This prospectus is not an offer to sell the securities and it is not soliciting an offer to buy the securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION DATED APRIL 26, 2024
Deutsche Bank Aktiengesellschaft
$59,875,188,000
Ordinary Shares
Tradable Subscription Rights to Subscribe for Ordinary Shares
Capital Securities
Debt Securities
Warrants
Purchase Contracts
Units
We, Deutsche Bank Aktiengesellschaft, may, from time to time, offer any of the following securities:
| • | ordinary shares of Deutsche Bank Aktiengesellschaft; |
| • | tradable subscription rights to subscribe for ordinary shares of Deutsche Bank Aktiengesellschaft; |
| • | subordinated capital securities, which we refer to as “capital securities”; |
| • | debt securities that may consist of subordinated debt securities, eligible liabilities senior debt securities, senior debt securities or senior debt funding securities, including senior debt securities convertible into, exchangeable for, or linked to one or more of the following: securities of any entity unaffiliated with Deutsche Bank Aktiengesellschaft (but excluding securities of financial sector entities that constitute own funds instruments or eligible liabilities), indices, currencies, commodities, interest rates, intangibles, articles, goods or any other property, any other financial, economic or other measures or instruments, including the occurrence or non-occurrence of any events or circumstances and/or a basket or baskets of any of these items; |
| • | warrants or warrants in the form of subscription rights to purchase or sell, or whose redemption value is determined by reference to the performance, level or value of one or more of the following: other securities of Deutsche Bank Aktiengesellschaft, securities of any entity affiliated or unaffiliated with Deutsche Bank Aktiengesellschaft, indices, currencies, commodities, interest rates, any other financial, economic or other measures or instruments, including the occurrence or non-occurrence of any events or circumstances and/or a basket or baskets of any of these items; |
| • | purchase contracts to purchase or sell, or whose redemption value is determined by reference to the performance, level or value of one or more of the following: other securities of Deutsche Bank Aktiengesellschaft, securities of any entity affiliated or unaffiliated with Deutsche Bank Aktiengesellschaft, indices, currencies, commodities, interest rates, any other financial, economic or other measures or instruments, including the occurrence or non-occurrence of any events or circumstances and/or a basket or baskets of any of these items; and |
| • | units that may consist of any combination of ordinary shares, tradable subscription rights to subscribe for ordinary shares, capital securities, warrants, purchase contracts, debt securities issued by Deutsche Bank Aktiengesellschaft and debt obligations or other securities of Deutsche Bank Aktiengesellschaft or an entity affiliated or not affiliated with Deutsche Bank Aktiengesellschaft. |
This prospectus describes the general terms of these securities and the general manner in which the securities will be offered. The specific terms of any securities offered will be included in a supplement to this prospectus. The prospectus supplement will also describe the specific manner in which the securities will be offered. We will not use this prospectus to issue any securities unless it is attached to a prospectus supplement.
Claims for payment or, if applicable, delivery in respect of the capital securities, debt securities, warrants, purchase contracts and units may be written down, be converted into ordinary shares or other instruments of ownership or become subject to other Resolution Measures (as defined herein). You may lose part or all of your investment if any Resolution Measure becomes applicable to us. For more information regarding the potential imposition of Resolution Measures by the competent resolution authority, please see “Resolution Measures” herein, as well as the risk factors beginning on page 20.
The ordinary shares of Deutsche Bank Aktiengesellschaft are listed on all the German stock exchanges (Frankfurt am Main, Berlin, Düsseldorf, Hamburg, Hanover, Munich and Stuttgart) as well as the New York Stock Exchange, where the ordinary shares trade under the symbol “DB.” Unless stated otherwise in a prospectus supplement, we will not list the other securities offered hereunder on any securities exchange.
These securities may be offered directly or to or through underwriters, agents or dealers, including Deutsche Bank Securities Inc. The names of any underwriters or agents will be included in the applicable prospectus supplement.
Investing in the securities involves risks. We may include specific risk factors in an applicable prospectus supplement under the heading “Risk Factors.”
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
These securities are not deposits or savings accounts and are not insured or guaranteed by the Federal Deposit Insurance Corporation or any other U.S. or foreign governmental agency or instrumentality.
The date of this prospectus is , 2024.
Table of Contents
| Page | ||||
| 1 | ||||
| 16 | ||||
| 17 | ||||
| 18 | ||||
| 19 | ||||
| 20 | ||||
| 25 | ||||
| 26 | ||||
| 27 | ||||
| 28 | ||||
| 29 | ||||
| DESCRIPTION OF TRADABLE SUBSCRIPTION RIGHTS TO SUBSCRIBE FOR ORDINARY SHARES |
34 | |||
| 35 | ||||
| 43 | ||||
| 70 | ||||
| 73 | ||||
| 74 | ||||
| 75 | ||||
| 79 | ||||
| 83 | ||||
| 85 | ||||
| 86 | ||||
| 86 | ||||
| 86 | ||||
i
Table of Contents
SUMMARY OF REGISTERED SECURITIES
Deutsche Bank Aktiengesellschaft, which we also refer to as the “Bank” or “we,” may offer any of the following securities: ordinary shares, tradable subscription rights to subscribe for ordinary shares, subordinated capital securities, debt securities, warrants, purchase contracts and units. The following summary describes these securities in general terms only. You should read the summary together with the more detailed information contained in the rest of this prospectus and the applicable prospectus supplement.
| Ordinary Shares |
We may offer ordinary shares. |
| Tradable Subscription Rights |
We may issue tradable subscription rights that would entitle the holders to subscribe for ordinary shares. We will provide one or more prospectus supplements that describe the specific terms of any subscription rights offering, including, as applicable: the title of the subscription rights; the exercise price for the subscription rights; the number of subscription rights issued; the record date, if any, to determine who is entitled to the subscription rights and the ex-rights date; the date on which the exercise of the subscription rights will commence, and the date on which the rights will expire; information regarding the trading of the subscription rights, including the stock exchanges, if any, on which the subscription rights will be tradable; and any other terms of the subscription rights, including terms, procedures and limitations relating to the exercise of the subscription rights. |
| Capital Securities |
We may issue subordinated capital securities, which we refer to as “capital securities.” We will provide one or more prospectus supplements that describe, among other things: |
| • | whether the capital securities will be issued by Deutsche Bank AG, acting through its head office or through one of its branches; |
| • | the specific designation; |
| • | whether the capital securities qualify for regulatory capital treatment as additional tier 1 capital or otherwise; |
| • | the ranking of the capital securities relative to our other outstanding securities, including to what extent they may rank junior in right of payment to other of our obligations or in any other manner; |
| • | the aggregate principal amount, purchase price and denomination; |
| • | the currency in which the capital securities are denominated and/or in which principal, and premium, if any, and interest, if any, are payable; |
| • | the interest rate or rates or the method by which the interest rate or rates, if any, will be determined and under what circumstances interest is payable; |
| • | the date from which interest accrues and the interest payment dates, if any; |
| • | provisions, if any, for the cancellation of all or any portion of any interest payment at our discretion or under other circumstances; |
| • | limitations, if any, on our ability to pay principal or interest in respect of the capital securities, including situations in which we may be prohibited from making such payments; |
1
Table of Contents
| • | provisions, if any, for write-downs (and related write-ups, if any) in the principal amount of the capital securities and the effect, if any, of such write-downs (and related write-ups, if any) on interest payable on such capital securities; |
| • | the place or places for payment of the principal of and any premium, if any, and/or interest, if any, on the capital securities; |
| • | any redemption or prepayment provisions, including any redemption notice provisions; |
| • | any terms on which the capital securities may or will be converted at our option or otherwise into ordinary shares of ours, which we refer to as “Conversion Securities,” and, if so, the nature and terms of the Conversion Securities into which such capital securities are convertible and any additional or other provisions relating to such conversion, including any triggering event that may give rise to such conversion (which may include, but shall not be limited to, certain regulatory capital events) and the terms upon which such conversion should occur; |
| • | whether we may conduct an offer of Conversion Securities after any conversion of the capital securities in order to deliver cash proceeds to holders of capital securities in lieu of the Conversion Securities and the terms upon which any such offer should occur; |
| • | any terms relating to the adjustment of the Conversion Securities into which such capital securities may be converted; |
| • | whether we will issue the capital securities in registered form or bearer form or both and, if we are offering capital securities in bearer form, any restrictions applicable to the exchange of one form for another and to the offer, sale and delivery of those capital securities in bearer form; |
| • | whether we will issue the capital securities in global (i.e., book-entry) or definitive (i.e., certificated) form and under what terms and conditions; |
| • | information as to the methods for determining the amount of principal, premium, if any, and/or interest payable on any date; |
| • | the identity of any agents for the capital securities, including the trustee, depositaries, authenticating or paying agents, transfer agents, registrars, determination or other agents; |
| • | the proposed listing, if any, of the capital securities on any securities exchange; |
| • | whether the capital securities are to be sold separately or with other securities as part of units; |
| • | any deletions from, additions to or modifications of our covenants set forth herein with respect to the capital securities; and |
| • | any other specific terms of the capital securities and any terms required by or advisable under applicable laws or regulations. |
2
Table of Contents
| The capital securities will be issued under the capital securities indenture, dated as of August 3, 2021 (as amended or supplemented from time to time) among us, as issuer, 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, and the supplements thereto. We may amend, restate or replace the capital securities indenture from time to time. The capital securities indenture that governs our capital securities does not limit the amount of additional indebtedness that we or any of our subsidiaries may incur. We have summarized the general features of the capital securities indenture under the heading “Description of Capital Securities.” We encourage you to read the capital securities indenture, which is an exhibit to our registration statement, and the supplements thereto, which will be included as exhibits to our registration statement. |
| The capital securities will constitute our unsecured and subordinated obligations, ranking pari passu among themselves and pari passu with all of our other equally subordinated obligations. If Resolution Measures are imposed on us, or in the event of our dissolution, liquidation, insolvency or composition, or if other proceedings are opened for the avoidance of insolvency of, or against, us, the obligations under the capital securities will be fully subordinated to (i) the claims of our unsubordinated creditors pursuant to applicable law, including claims against us under our unsecured and unsubordinated non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including those that are subject to Section 46f(9) of the German Banking Act) or any successor provision; (ii) the claims specified in Section 39(1) nos. 1 to 5 of the German Insolvency Code (Insolvenzordnung) or any successor provision; (iii) our contractually subordinated obligations within the meaning of Section 39(2) of the German Insolvency Code (or any successor provision) which do not qualify as Own Funds Instruments (within the meaning of the CRR (as defined below)) at the time Resolution Measures are imposed on us or in the event of our dissolution, liquidation, insolvency, composition or other proceedings for the avoidance of insolvency of, or against us; (iv) our other contractually subordinated obligations within the meaning of Section 46f(7a) sentences 3 and 4 of the German Banking Act (or any successor provision thereto); and (v) the claims under our tier 2 instruments (within the meaning of the CRR) (we refer to such claims and obligations in (i) – (v) as the “Priority Claims”). Subject to this subordination provision, we may satisfy our obligations under the capital securities also from our other distributable assets (freies Vermögen). The capital securities will be subject to Resolution Measures, as defined under “Resolution Measures” below. |
| “CRR” means Regulation (EU) No 575/2013 of the European Parliament and the Council of June 26, 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 |
3
Table of Contents
| replaced, the term CRR as used in the capital securities indenture and the capital securities also refer to such amended provisions or successor provisions. |
| Our payment obligations under the capital securities will rank pari passu with the claims against us under our other instruments issued as additional tier 1 capital within the meaning of the CRR and listed in the applicable prospectus supplement. |
| Debt Securities |
We may issue debt securities, comprising subordinated debt securities, which we refer to as “subordinated debt securities,” eligible liabilities senior debt securities, which we refer to as “eligible liabilities senior debt securities,” senior debt securities, which we refer to as “senior debt securities,” and senior debt funding securities, which we refer to as “senior debt funding securities.” |
| Subordinated Debt Securities |
In respect of the subordinated debt securities, we will provide one or more prospectus supplements that describe, among other things: |
| • | whether the subordinated debt securities will be issued by Deutsche Bank AG, acting through its head office or through one of its branches; |
| • | the specific designation; |
| • | whether the subordinated debt securities qualify for regulatory capital treatment and if so, the category of capital for which they qualify; |
| • | the ranking of the subordinated debt securities relative to our other outstanding securities, including to what extent they may rank junior in right of payment to other of our obligations or in any other manner; |
| • | the aggregate principal amount, purchase price and denomination; |
| • | the currency in which the subordinated debt securities are denominated and/or in which principal, and premium, if any, and interest, if any, are payable; |
| • | the date of maturity (and any provisions relating to extending or shortening the maturity date); |
| • | the interest rate or rates or the method by which the calculation agent (identified in the prospectus supplement) will determine the interest rate or rates, if any; |
| • | the date from which interest accrues and the interest payment dates, if any; |
| • | the place or places for payment of the principal of and any premium, if any, and/or interest, if any, on the subordinated debt securities; |
| • | any repayment, redemption or prepayment, including any redemption notice provisions; |
| • | whether we will issue the subordinated debt securities in registered form or bearer form or both and, if we are offering subordinated debt securities in bearer form, any restrictions applicable to the exchange of one form for another and to the offer, sale and delivery of those subordinated debt securities in bearer form; |
4
Table of Contents
| • | whether we will issue the subordinated debt securities in global (i.e., book-entry) or definitive (i.e., certificated) form and under what terms and conditions; |
| • | the identity of any agents for the subordinated debt securities, including the trustee, depositaries, authenticating or paying agents, transfer agents, registrars, determination or other agents; |
| • | the proposed listing, if any, of the subordinated debt securities on any securities exchange; |
| • | whether the subordinated debt securities are to be sold separately or with other securities as part of units; |
| • | any deletions from, additions to or modifications of our covenants set forth herein with respect to the subordinated debt securities; and |
| • | any other specific terms of the subordinated debt securities and any terms required by or advisable under applicable laws or regulations. |
| The subordinated debt securities will be issued under a subordinated indenture, dated as of August 3, 2021 (as amended or supplemented from time to time), among us, as issuer, Wilmington Trust, National Association, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, transfer agent and registrar and authenticating agent, and the supplements thereto. We may amend, restate or replace the subordinated indenture from time to time. The subordinated indenture does not limit the amount of additional indebtedness that we or any of our subsidiaries may incur. We have summarized the general features of the subordinated indenture under the heading “Description of Debt Securities—Subordinated Debt Securities.” We encourage you to read the subordinated indenture (together with the supplements thereto), which are exhibits to our registration statement. |
| The subordinated debt securities will constitute our unsecured obligations and will be fully subordinated to: (i) the claims of our unsubordinated creditors pursuant to applicable law, including claims against us under our unsecured and unsubordinated non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including those that are subject to Section 46f(9) of the German Banking Act) or any successor provision; (ii) the claims specified in Section 39(1) nos. 1 to 5 of the German Insolvency Code (Insolvenzordnung) or any successor provision; (iii) our contractually subordinated obligations within the meaning of Section 39(2) of the German Insolvency Code (or any successor provision) which do not qualify as Own Funds Instruments (within the meaning of the CRR) at the time Resolution Measures are imposed on us or in the event of our dissolution, liquidation, insolvency, composition or other proceedings for the avoidance of insolvency of, or against us; and (iv) our other contractually subordinated obligations within the meaning of Section 46f(7a) sentences 3 and 4 of the German Banking Act (or any successor provision thereto) (we refer to such claims and obligations in (i) - (iv) as the “Priority Claims”). |
5
Table of Contents
| The subordinated debt securities will rank equally and pari passu with all of our other unsecured and subordinated claims (it being understood that no Priority Claims constitute subordinated claims), except as otherwise provided by applicable law or by the terms of any other indebtedness, and in particular, if such other indebtedness is expressed to rank junior to the subordinated debt securities, then the securities shall rank senior to such junior debt, but junior to the Priority Claims. The subordinated debt securities will be subject to Resolution Measures, as defined under “Resolution Measures” below. |
| Eligible Liabilities Senior Debt Securities |
In respect of the eligible liabilities senior debt securities, we will provide one or more prospectus supplements that describe, among other things: |
| • | whether the eligible liabilities senior debt securities will be issued by Deutsche Bank AG, acting through its head office or through one of its branches; |
| • | the specific designation; |
| • | the qualification of the eligible liabilities senior debt securities as eligible liabilities for bank regulatory purposes; |
| • | the ranking of the eligible liabilities senior debt securities relative to our other outstanding securities, including whether they provide for an explicit reference to their lower ranking as determined through Section 46f(5) of the German Banking Act (Kreditwesengesetz) and to what extent they may rank junior in right of payment to other of our obligations or in any other manner; |
| • | whether we are permitted to substitute the office through which we are acting for all purposes under the eligible liabilities senior debt securities; |
| • | the aggregate principal amount, purchase price and denomination; |
| • | the currency, if other than U.S. dollars, in which the eligible liabilities senior debt securities are denominated and/or in which principal, and premium, if any, and interest, if any, are payable; |
| • | the date of maturity (and any provisions relating to postponing or shortening the maturity date to account for days that are not business days); |
| • | the interest rate or rates or the method by which the calculation agent (identified in the prospectus supplement) will determine the interest rate or rates, if any; |
| • | the date from which interest accrues and the interest payment dates, if any; |
| • | the place or places for payment of the principal of and any premium, if any, and/or interest, if any, on the eligible liabilities senior debt securities; |
| • | any redemption provisions, including any redemption notice provisions; |
| • | whether we will issue the eligible liabilities senior debt securities in registered form or bearer form or both and, if |
6
Table of Contents
| we are offering eligible liabilities senior debt securities in bearer form, any restrictions applicable to the exchange of one form for another and to the offer, sale and delivery of those eligible liabilities senior debt securities in bearer form; |
| • | whether we will issue the eligible liabilities senior debt securities in global (i.e., book-entry) or definitive (i.e., certificated) form and under what terms and conditions; |
| • | the identity of any agents for the eligible liabilities senior debt securities, including the trustee, depositaries, authenticating or paying agents, transfer agents, registrars, determination or other agents; |
| • | the proposed listing, if any, of the eligible liabilities senior debt securities on any securities exchange; |
| • | any deletions from, additions to or modifications of our covenants set forth herein with respect to the eligible liabilities senior debt securities; and |
| • | any other specific terms of the eligible liabilities senior debt securities and any terms required by or advisable under applicable laws or regulations. |
| The eligible liabilities senior debt securities will be issued under the eligible liabilities senior indenture, dated as of August 3, 2021 (as amended or supplemented from time to time), among us, as issuer, The Bank of New York Mellon, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, authenticating agent, issuing agent and registrar, and the supplements thereto. We may amend, restate or replace the eligible liabilities senior indenture from time to time. The eligible liabilities senior indenture does not limit the amount of additional indebtedness that we or any of our subsidiaries may incur. We have summarized the general features of the eligible liabilities senior indenture under the heading “Description of Debt Securities—Eligible Liabilities Senior Debt Securities.” We encourage you to read the eligible liabilities senior indenture (together with the supplements thereto), which are exhibits to our registration statement. |
| The eligible liabilities senior debt securities will constitute our unsecured and unsubordinated senior non-preferred obligations under debt instruments (Schuldtitel) within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) or any successor provision. Our obligations under the eligible liabilities senior debt securities will rank pari passu among themselves and pari passu with all of our other unsecured and unsubordinated senior non-preferred obligations under debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (including the senior non-preferred obligations under any such debt instruments that we issued before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act) or any successor provision. The eligible liabilities senior debt securities will be subject to Resolution Measures, as defined under “Resolution Measures” below. |
7
Table of Contents
| Senior Debt Securities |
In respect of the senior debt securities, we will provide one or more prospectus supplements that describe, among other things: |
| • | whether the senior debt securities will be issued by Deutsche Bank AG, acting through its head office or through one of its branches; |
| • | the specific designation; |
| • | whether we are permitted to substitute the office through which we are acting for all purposes under the senior debt securities; |
| • | the aggregate principal amount, purchase price and denomination; |
| • | the currency in which the senior debt securities are denominated and/or in which principal, and premium, if any, and/or interest, if any, are payable; |
| • | the date of maturity (and any provisions relating to extending or shortening the maturity date); |
| • | the interest rate or rates or the method by which the calculation agent (identified in the prospectus supplement) will determine the interest rate or rates, if any; |
| • | the date from which interest accrues and the interest payment dates, if any; |
| • | the place or places for payment of the principal of and any premium, if any, and/or interest, if any, on the senior debt securities; |
| • | any repayment, redemption, prepayment or sinking fund provisions, including any redemption notice provisions; |
| • | if other than the principal amount thereof, the portion of the principal amount of the senior debt securities payable upon declaration of acceleration of maturity thereof; |
| • | whether we will issue the senior debt securities in registered form or bearer form or both and, if we are offering senior debt securities in bearer form, any restrictions applicable to the exchange of one form for another and to the offer, sale and delivery of those senior debt securities in bearer form; |
| • | whether we will issue the senior debt securities in global (i.e., book-entry) or definitive (i.e., certificated) form and under what terms and conditions; |
| • | whether the senior debt securities are convertible or exchangeable securities and the terms on which holders of the senior debt securities may exchange them into or for one or more securities of other entities unaffiliated with us or other property, or the cash value thereof, and the specific terms of and period in which such conversion or exchange may be made (other than, in each case, any securities of financial sector entities that constitute own funds instruments or eligible liabilities); |
| • | if the amount of principal, premium, if any, and/or interest payable on any date may be determined with respect to |
8
Table of Contents
| any currencies, commodities or securities of us or other entities, the basket or baskets of those currencies, commodities or securities, or the index or indices of those currencies, commodities or securities, or interest rates, or intangibles, articles, goods or any other property, or any other financial or economic or other measures or instruments, including the occurrence or non-occurrence of any events or circumstances, the manner in which such amounts will be determined; |
| • | the identity of any agents for the senior debt securities, including the trustee, depositaries, authenticating or paying agents, transfer agents, registrars, determination or other agents; |
| • | the proposed listing, if any, of the senior debt securities on any securities exchange; |
| • | whether the senior debt securities are to be sold separately or with other securities as part of units; |
| • | any deletions from, additions to or modifications of our covenants set forth herein with respect to the senior debt securities; and |
| • | any other specific terms of the senior debt securities and any terms required by or advisable under applicable laws or regulations. |
| The senior debt securities will be issued under the senior indenture, dated as of August 3, 2021 (as amended or supplemented from time to time), among us, as issuer, Delaware Trust Company (the legal successor to Law Debenture Trust Company of New York), as trustee, and Deutsche Bank Trust Company Americas, as paying agent, issuing agent, authenticating agent and registrar, and the supplements thereto. We may amend, restate or replace the senior indenture from time to time. The senior indenture does not limit the amount of additional indebtedness that we or any of our subsidiaries may incur. We have summarized the general features of the senior indenture under the heading “Description of Debt Securities—Senior Debt Securities.” We encourage you to read the senior indenture (together with the supplements thereto), which are exhibits to our registration statement. |
| The senior debt securities will constitute our unsecured and unsubordinated obligations ranking pari passu among themselves and pari passu with all of our other unsecured and unsubordinated obligations (including our obligations under our senior debt funding securities), subject, however, to statutory priorities conferred upon certain unsecured and unsubordinated obligations in the event of any Resolution Measures imposed on us or in the event of our dissolution, liquidation, insolvency or composition, or if other proceedings are opened for the avoidance of the insolvency of, or against, us; and pursuant to Section 46f(5) of the German Banking Act (Kreditwesengesetz), the obligations under the senior debt securities will rank in priority to our obligations under any of our debt instruments (Schuldtitel) within the meaning of Section 46f(6) sentence 1 of the German Banking Act (including the senior non-preferred obligations under any such debt instruments that we issued |
9
Table of Contents
| before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act) or any successor provision. The senior debt securities will be subject to Resolution Measures, as defined under “Resolution Measures” below. |
| Senior Debt Funding Securities |
In respect of the senior debt funding securities, we will provide one or more prospectus supplements that describe among other things: |
| • | whether the senior debt funding securities will be issued by Deutsche Bank AG, acting through its head office or through one of its branches; |
| • | the specific designation; |
| • | the qualification of the senior debt funding securities as eligible liabilities for bank regulatory purposes; |
| • | whether we are permitted to substitute the office through which we are acting for all purposes under the senior debt funding securities; |
| • | the aggregate principal amount, purchase price and denomination; |
| • | the currency, if other than U.S. dollars, in which the senior debt funding securities are denominated and/or in which principal, and premium, if any, and interest, if any, are payable; |
| • | the date of maturity (and any provisions relating to postponing or shortening the maturity date to account for days that are not business days); |
| • | the interest rate or rates or the method by which the calculation agent (identified in the prospectus supplement) will determine the interest rate or rates, if any; |
| • | the date from which interest accrues and the interest payment dates, if any; |
| • | the place or places for payment of the principal of and any premium, if any, and/or interest, if any, on the senior debt funding securities; |
| • | any redemption provisions, including any redemption notice provisions; |
| • | whether we will issue the senior debt funding securities in registered form or bearer form or both and, if we are offering senior debt funding securities in bearer form, any restrictions applicable to the exchange of one form for another and to the offer, sale and delivery of those senior debt funding securities in bearer form; |
| • | whether we will issue the senior debt funding securities in global (i.e., book-entry) or definitive (i.e., certificated) form and under what terms and conditions; |
| • | the identity of any agents for the senior debt funding securities, including the trustee, depositaries, authenticating or paying agents, transfer agents, registrars, determination or other agents; |
| • | the proposed listing, if any, of the senior debt funding securities on any securities exchange; |
10
Table of Contents
| • | any deletions from, additions to or modifications of our covenants set forth herein with respect to the senior debt funding securities; and |
| • | any other specific terms of the senior debt funding securities and any terms required by or advisable under applicable laws or regulations. |
| The senior debt funding securities will be issued under the senior debt funding indenture, dated as of August 3, 2021 (as amended or supplemented from time to time), among us, as issuer, Delaware Trust Company, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, authenticating agent, issuing agent and registrar, and the supplements thereto. We may amend, restate or replace the senior debt funding indenture from time to time. The senior debt funding indenture does not limit the amount of additional indebtedness that we or any of our subsidiaries may incur. We have summarized the general features of the senior debt funding indenture under the heading “Description of Debt Securities—Senior Debt Funding Securities.” We encourage you to read the senior debt funding indenture, which is an exhibit to our registration statement. |
| The senior debt funding securities (and in the case of senior debt funding securities in bearer form, any coupons to these securities) will constitute our unsecured and unsubordinated obligations ranking pari passu among themselves and pari passu with all of our other unsecured and unsubordinated obligations (including our obligations under our senior debt securities), subject, however, to statutory priorities conferred upon certain unsecured and unsubordinated obligations in the event of any Resolution Measures imposed on us or in the event of our dissolution, liquidation, insolvency or composition, or if other proceedings are opened for the avoidance of the insolvency of, or against, us; and pursuant to Section 46f(5) of the German Banking Act (Kreditwesengesetz), the obligations under the senior debt funding securities will rank in priority to our senior non-preferred obligations under (i) any of our debt instruments (Schuldtitel) within the meaning of Section 46f(6) sentence 1 of the German Banking Act (including the senior non-preferred obligations under any such debt instruments that we issued before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act) or any successor provision, and (ii) eligible liabilities within the meaning of Articles 72a and 72b(2) CRR. The senior debt funding securities will be subject to Resolution Measures, as defined under “Resolution Measures” below. |
| Warrants |
We may offer warrants to purchase or sell, or whose redemption value is determined by reference to the performance, level or value of one or more of the following: securities issued by us or by an entity affiliated or not affiliated with us, indices, currencies, commodities, interest rates, any other financial, economic or other measures or instruments, including the occurrence or non-occurrence of any events or circumstances and/or a basket or baskets of any of these items. |
| In a prospectus supplement, we will inform you of the exercise price and describe other specific terms of the warrants, |
11
Table of Contents
| including whether we will satisfy our obligations, if any, or you will satisfy your obligations, if any, under the warrants by delivering or purchasing the underlying securities, commodities, currencies or instruments, or their cash value and whether we are permitted to substitute the office through which we are acting for all purposes under the warrants. The warrants are our unsecured contractual obligations and will rank equally and pari passu with our other unsecured contractual obligations and with our unsecured and unsubordinated debt obligations, subject to any statutory priority regime of the jurisdiction of our incorporation (or, in the case of warrants issued by Deutsche Bank AG acting through a branch, of the jurisdiction where the branch is established) that provides certain claims will be satisfied first in a resolution or German insolvency proceeding with respect to us. The warrants will be subject to Resolution Measures, as defined under “Resolution Measures” below. |
| Purchase Contracts |
We may offer purchase contracts to purchase or sell, or whose redemption value is determined by reference to the performance, level or value of one or more of the following: securities issued by us or by an entity affiliated or not affiliated with us, indices, currencies, commodities, interest rates, any other financial, economic or other measures or instruments, including the occurrence or non-occurrence of any events or circumstances and/or a basket or baskets of any of these items. |
| In a prospectus supplement, we will describe the specific terms of the purchase contracts, including whether we will satisfy our obligations, if any, or you will satisfy your obligations, if any, under the purchase contracts by delivering or purchasing the underlying securities, commodities, currencies or instruments, or their cash value. Purchase contracts will not be contractually subordinated in priority of payment to our senior obligations. |
| Units |
We may offer as units any combination of ordinary shares, tradable subscription rights to subscribe for ordinary shares, warrants, purchase contracts, capital securities, debt securities issued by us, and debt obligations or other securities of an entity affiliated or not affiliated with us. In a prospectus supplement, we will describe the particular combination of ordinary shares, tradable subscription rights to subscribe for ordinary shares, warrants, purchase contracts, capital securities and debt securities issued by us, or debt obligations or other securities of an entity affiliated or not affiliated with us, constituting any units and any other specific terms of the units. Units will not be contractually subordinated in priority of payment to our senior obligations. |
| Resolution Measures |
Under the relevant resolution laws and regulations as applicable to us from time to time, the capital securities, debt securities and warrants may be subject to the powers exercised by the competent resolution authority to: |
| • | write down, including write down to zero, the claims for payment of the principal amount, the interest amount, if any, or any other amount or, if applicable, claims for delivery of any property in respect of the capital securities, debt securities or warrants; |
12
Table of Contents
| • | convert the capital securities, debt securities or warrants into ordinary shares of (A) the Bank or (B) any group entity or (C) any bridge bank or other instruments of ownership of such entities qualifying as common equity tier 1 capital (and the issue to or conferral on the holders (including the beneficial owners) of such ordinary shares or instruments); and/or |
| • | apply any other resolution measure, including, but not limited to, (A) any transfer of the capital securities, debt securities or warrants to another entity, (B) the amendment, modification or variation of the terms and conditions of the capital securities, debt securities or warrants or (C) the cancellation of the capital securities, debt securities or warrants. |
| The write-down and conversion powers are hereinafter referred to as the “bail-in tool.” We refer to the bail-in tool and each of the other resolution measures as a “Resolution Measure.” When we refer to a “group entity,” we mean an entity that is included in the corporate group subject to a Resolution Measure, and when we refer to a “bridge bank,” we mean a newly chartered German bank that would receive some or all of our equity securities, assets, liabilities and material contracts, including those attributable to our branches and subsidiaries, in the event of the imposition of Resolution Measures. For the avoidance of doubt, any non-payment or, if applicable, non-delivery by us arising out of any such Resolution Measure will not constitute a failure by us under the terms of the capital securities, debt securities or warrants, or the capital securities indenture, the subordinated indenture, the eligible liabilities senior indenture, the senior indenture, the senior debt funding indenture or the warrant agreement, as applicable, to make a payment of principal of, interest on or other amounts owing or, if applicable, deliverable under the capital securities, debt securities or warrants. By acquiring any capital securities, debt securities or warrants, you will be bound by and will be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority. As a result, you would have no claim or other right against us arising out of any Resolution Measure. Furthermore, holders of any eligible liabilities senior debt securities would have no claim or other right against us arising out of increased losses incurred based on the order of priority under the German Banking Act as described under “Risk Factors— In a resolution or German insolvency proceeding instituted with respect to us, certain specifically defined senior unsecured debt instruments (Schuldtitel) of ours (such as the eligible liabilities senior debt securities described in this prospectus) will rank junior to all of our other outstanding senior unsecured unsubordinated obligations, and will be satisfied only if all of our other senior unsecured unsubordinated obligations have been paid in full. Such ranking might result in higher losses being allocated to such lower-ranking debt securities than to our other outstanding unsecured unsubordinated obligations” below. In addition, by your acquisition of any capital securities, debt securities or warrants, you waive (in the case of the capital securities and the debt securities, to the fullest extent permitted by the Trust Indenture Act of 1939, as amended (the |
13
Table of Contents
| “Trust Indenture Act”) and applicable law) any and all claims against the relevant trustee, the relevant agents and the warrant agent, as applicable, and agree not to initiate a suit against the relevant trustee, the relevant agents or the warrant agent in respect of, and agree that the relevant trustee, the relevant agents and the warrant agent will not be liable for, any action that the relevant trustee, the relevant agents or the warrant agent 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 capital securities, debt securities or warrants. Accordingly, you may have limited or circumscribed rights to challenge any decision of the competent resolution authority to impose any Resolution Measure. For more information, please see the sections “Resolution Measures” and “Risk Factors” of this prospectus. |
| The application of any Resolution Measure to purchase contracts and units, as well as certain specific resolution related requirements in respect of warrants, purchase contracts and units (such as the contractual recognition of stay powers) will be described in the applicable prospectus supplement we will file in connection with their issuance. |
| Form |
We may issue ordinary shares and tradable subscription rights to subscribe for ordinary shares in global registered form. In addition, we may issue capital securities, debt securities, warrants, purchase contracts and units, in each case in fully registered form or in bearer form and, in either case, in definitive form or global form. |
| Terms Specified in Prospectus Supplements |
When we decide to sell particular securities, we will provide a prospectus supplement describing the securities offering and the specific terms of the securities. You should carefully read this prospectus and the applicable prospectus supplement. |
| We will offer our ordinary shares, tradable subscription rights to subscribe for ordinary shares, capital securities, debt securities, warrants, purchase contracts and units to investors on terms determined by market and other conditions. Our securities may be sold for U.S. dollars or foreign currency. Principal of, and any premium or interest on, capital securities and debt securities and cash amounts payable under warrants or purchase contracts may be payable in U.S. dollars or foreign currency, as we specifically designate in the related prospectus supplement. |
| Any prospectus supplement we provide will include the name of and compensation to each dealer, underwriter or agent, if any, involved in the sale of the securities being offered and the managing underwriters for any securities sold to or through underwriters. Any underwriters, including managing underwriters, dealers or agents in the United States may include Deutsche Bank Securities Inc. or other affiliates of ours. |
| Branches |
We may act directly through our principal office in Frankfurt am Main or through one of our branch offices, such as our London branch, our New York branch, or such other branch as specified in the applicable prospectus supplement. |
| Conflicts of Interest |
To the extent an offering of the securities will be distributed by Deutsche Bank Securities Inc. or any other U.S. broker-dealer |
14
Table of Contents
| affiliate of the Bank, each such offering of securities must be conducted in compliance with the requirements of Rule 5121 of the Financial Industry Regulatory Authority, Inc., or “FINRA,” regarding a FINRA member firm’s distribution of securities of affiliates. See “Plan of Distribution—Conflicts of Interest.” |
15
Table of Contents
References in this prospectus to the “Bank,” “we,” “our,” “us” or “Deutsche Bank AG” refer to Deutsche Bank Aktiengesellschaft (including, as the context may require, acting through one of its branches) and, unless the context requires otherwise, will include our other consolidated subsidiaries. In the sections of this prospectus entitled “Description of Ordinary Shares,” “Description of Tradable Subscription Rights to Subscribe for Ordinary Shares,” “Description of Capital Securities,” “Description of Debt Securities,” “Description of Warrants,” “Description of Purchase Contracts” and “Description of Units references to “Bank,” “we,” “our,” “us” or “Deutsche Bank AG” refer to Deutsche Bank Aktiengesellschaft (including, as the context may require, acting through one of its branches), as issuer of the securities described in such sections.
References to “you” or “your” mean those who invest in the securities being offered, whether they are the direct holders or owners of beneficial interests in those securities. References to “holders” mean those who own securities registered in their own names on the books that we or the trustee maintain for this purpose, and not those who own beneficial interests in securities issued in book-entry form through The Depository Trust Company or another depositary or in securities registered in street name. Owners of beneficial interests in the securities should read the section entitled “Forms of Securities.”
This prospectus is part of a registration statement on Form F-3 that we filed with the Securities and Exchange Commission (the “Commission” or “SEC”) utilizing a “shelf” registration process. Under this shelf process, we may, from time to time, sell any combination of the securities described in the prospectus in one or more offerings.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide one or more prospectus supplements that will contain specific information about the terms of the offering. A prospectus supplement may add, modify or replace information contained in this prospectus. If a prospectus supplement is inconsistent with this prospectus, the terms of the prospectus supplement will control. Therefore the statements made in this prospectus may not be the terms that apply to the securities you purchase. You should read both this prospectus and any prospectus supplement together with additional information described under the heading “Where You Can Find Additional Information” beginning on page 17 of this prospectus before purchasing any securities.
Following the initial distribution of an offering of securities, certain affiliates of ours may offer and sell those securities in the course of their businesses. Such affiliates may act as principal or agent in these transactions. This prospectus and the applicable prospectus supplement will also be used in connection with those transactions. Sales in any of those transactions will be made at varying prices related to prevailing market prices and other circumstances at the time of sale.
References to “EUR,” “€” and “euros” are to the euro, the currency introduced at the start of the third stage of the European Economic and Monetary Union pursuant to the treaty establishing the European Community, as amended by the treaty on European Union. References to “USD,” “U.S. dollars,” “dollar” and “$” are to United States currency, and the terms “United States” and “U.S.” mean the United States of America, its states, its territories, its possessions and all areas subject to its jurisdiction.
16
Table of Contents
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in accordance therewith, we file reports and other information with the SEC. The SEC maintains an internet website that contains reports and other information regarding us that are filed through the SEC’s Electronic Data Gathering, Analysis and Retrieval (EDGAR) System. This website can be accessed at http://www.sec.gov. You can find information that we have filed with the SEC by reference to file number 001-15242.
This prospectus is part of a registration statement on Form F-3 that we filed with the SEC. This prospectus omits some information contained in the registration statement in accordance with SEC rules and regulations. You should review the information in and exhibits to the registration statement for further information on us and the securities we are offering. Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we otherwise filed with the SEC are not intended to be comprehensive and are qualified in their entirety by reference to these filings. You should review the complete document to evaluate these statements.
The SEC allows us to “incorporate by reference” much of the information we file with the SEC, which means that we can disclose important information to you by referring you to those publicly available documents. The information that we incorporate by reference in this prospectus is an important part of this prospectus. Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. This prospectus incorporates by reference the documents listed below and any future filings we make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act. Reports on Form 6-K we furnish to the SEC after the date of this prospectus (or portions thereof) are incorporated by reference in this prospectus only to the extent that the report expressly states that it (or any such portion) is incorporated by reference in this prospectus or the registration statement of which this prospectus forms a part. We incorporate by reference in this prospectus:
| (1) | the Annual Report on Form 20-F of Deutsche Bank Aktiengesellschaft for the year ended December 31, 2023, filed on March 14, 2024, which we also refer to as our “2023 Form 20-F”; and |
| (2) | the Report on Form 6-K of Deutsche Bank Aktiengesellschaft filed on April 25, 2024. |
Upon request, we will provide to each person, including any beneficial owner to whom a prospectus is delivered, a copy of any or all of the information that has been incorporated by reference in the prospectus but not delivered with the prospectus.
You may request, at no cost to you, a copy of these documents (other than exhibits thereto not specifically incorporated by reference) by writing or telephoning us at: Deutsche Bank AG, Taunusanlage 12, 60325 Frankfurt am Main, Germany, Attention: Investor Relations (Telephone: +49 800 910-8000, email:db.ir@db.com). Certain of these documents can also be obtained on our website http://www.deutsche-bank.com/ir under “Reporting and Events—Reports—SEC Filings for Financial Results.” Reference to this “uniform resource locator” or “URL” is made as an inactive textual reference for informational purposes only. Other information found at this website is not incorporated by reference in this document.
17
Table of Contents
USE OF NON-GAAP FINANCIAL MEASURES
This document contains or incorporates by reference non-GAAP financial measures. Non-GAAP financial measures are measures of our historical or future performance, financial position or cash flows that contain adjustments that exclude or include amounts that are included or excluded, as the case may be, from the most directly comparable measure calculated and presented in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”).
For purposes of the Group’s primary financial reporting outside the United States, the Group prepares its consolidated financial statements in accordance with IFRS as endorsed by the European Union (“EU”). Accordingly, the consolidated financial statements incorporated by reference herein differ from those we publish for those purposes (the “non-SEC” versions thereof) in that the financial information presented in the consolidated financial statements included or incorporated by reference herein have been prepared in accordance with IFRS as issued by the IASB. The financial information presented in the non-SEC consolidated financial statements, by contrast, have been prepared in accordance with IFRS as issued by the IASB and endorsed by the European Union (EU), including the application of fair value hedge accounting for portfolio hedges of interest rate risk (fair value macro hedges) in accordance with the EU carve-out version of IAS 39.
Descriptions of non-GAAP financial measures we use and the adjustments made to the most directly comparable IFRS financial measures to obtain them are set forth in our 2023 Form 20-F and the other documents incorporated by reference herein.
When used with respect to future periods, our non-GAAP financial measures are also forward-looking statements. We cannot predict or quantify the levels of the most directly comparable financial measures under IFRS that would correspond to these measures for future periods. This is because neither the magnitude of such IFRS financial measures, nor the magnitude of the adjustments to be used to calculate the related non-GAAP financial measures from such IFRS financial measures, can be predicted. Such adjustments, if any, will relate to specific, currently unknown, events and in most cases can be positive or negative, so that it is not possible to predict whether, for a future period, the non-GAAP financial measure will be greater than or less than the related IFRS financial measure.
18
Table of Contents
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and any prospectus supplements, including the information incorporated by reference, contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Exchange Act. Forward-looking statements are statements that are not historical facts, including statements about our beliefs and expectations. We use words such as “believe,” “anticipate,” “expect,” “intend,” “seek,” “estimate,” “project,” “should,” “potential,” “reasonably possible,” “plan,” “aim” and similar expressions to identify forward-looking statements. In addition, we may from time to time make forward-looking statements in our periodic reports to the SEC on Forms 20-F and 6-K, annual and interim reports, invitations to annual shareholders’ meetings and other information sent to shareholders, offering circulars and prospectuses, press releases and other written materials. Our Management Board, Supervisory Board, officers and employees may also make oral forward-looking statements to third parties, including financial analysts.
Such forward-looking statements may include, without limitation, statements relating to the following:
| • | the potential development and impact on us of economic and business conditions and the legal and regulatory environment to which we are subject, including significant challenges that may arise from persistent inflationary pressures and significantly higher interest rates, the continuing war in Ukraine, the Israel-Hamas war and the risk of a broader conflict in the region, tensions with China, deterioration of the macroeconomic environment, and elevated geopolitical risks; |
| • | our ability to sustain revenues or to control our cost base by means of strategic initiatives and responses to economic and business conditions and the legal and regulatory environment; |
| • | the development of aspects of our results of operations; |
| • | our expectations of the impact of risks that affect our business, including the risks of losses on our trading processes and credit exposures; and |
| • | other statements relating to our future business development and economic performance. |
By their very nature, forward-looking statements involve risks and uncertainties, both general and specific. We base these statements on our current plans, estimates, projections and expectations. You should therefore not place too much reliance on them. Our forward-looking statements speak only as of the date we make them, and we undertake no obligation to update any of them in light of new information or future events.
We caution you that a number of important factors could cause our actual results to differ materially from those we describe in any forward-looking statement. These factors include, among others, the following:
| • | changes in general economic and business conditions; |
| • | changes and volatility in currency exchange rates, interest rates and asset prices; |
| • | changes in governmental policy and regulation, including measures taken in response to economic, business, political and social conditions; |
| • | the potential development and impact on us of legal and regulatory proceedings to which we are or may become subject; |
| • | changes in our competitive environment; |
| • | the success of our acquisitions, divestitures, mergers and strategic alliances; and |
| • | other factors, including those we refer to in “Item 3: Key Information—Risk Factors” of our 2023 Form 20-F and elsewhere in the 2023 Form 20-F, other documents incorporated by reference herein, this prospectus and any prospectus supplements, and others to which we do not refer. |
19
Table of Contents
Your investment in the securities will involve certain risks. You should consider carefully the following risk factors together with the risk information contained in the relevant prospectus supplement, the relevant product supplement and the relevant pricing supplement before you decide that an investment in the securities is suitable for you.
For a discussion of the risk factors affecting Deutsche Bank AG and its business, see “Item 3: Key Information—Risk Factors” of the 2023 Form 20-F and our current and periodic reports filed with the Securities and Exchange Commission that are incorporated by reference into this prospectus. The following risk factors are additional to the risk factors included in that Form 20-F and those reports.
Securities May Be Subject to Resolution Measures
The securities may be written down, be converted into ordinary shares or other instruments qualifying as common equity tier 1 capital or become subject to other resolution measures. You may lose part or all of your investment if any such measure becomes applicable to us.
On May 15, 2014, the European Parliament and the Council of the European Union adopted a directive establishing a framework for the recovery and resolution of credit institutions and investment firms (Directive 2014/59/EU, as amended, the “Bank Recovery and Resolution Directive” or the “BRRD”), which was implemented into German law by the German Recovery and Resolution Act (Sanierungs- und Abwicklungsgesetz, or, as amended, the “Resolution Act”), which became effective on January 1, 2015. The BRRD and the Resolution Act provided national resolution authorities with a set of resolution powers to intervene in the event that a bank is failing or likely to fail and certain other conditions are met. From January 1, 2016, the power to initiate resolution measures applicable to significant banking groups (such as Deutsche Bank Group) in the European Banking Union was transferred to the European Single Resolution Board (“SRB”) which, based on the European Union regulation establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund (Regulation (EU) No 806/2014, as amended, the “SRM Regulation”), works in close cooperation with the European Central Bank, the European Commission and the national resolution authorities.
Pursuant to the SRM Regulation, the Resolution Act and other applicable rules and regulations, the capital securities, debt securities and warrants are subject to the powers exercised by the competent resolution authority to (i) write down, including write down to zero, the claims for payment of the principal amount, interest amount or any other amount or, if applicable, claims for delivery of any property in respect of the capital securities, debt securities or warrants, (ii) to convert the capital securities, debt securities or warrants into ordinary shares of (x) the Bank, (y) any group entity or (z) any bridge bank or other instruments of ownership of such entities qualifying as common equity tier 1 capital, or (iii) to apply any other resolution measure including, but not limited to, any transfer of the capital securities, debt securities or warrants to another entity, the amendment, modification or variation of the terms and conditions of the capital securities, debt securities or warrants or a cancellation of the capital securities, debt securities or warrants. The write-down and conversion powers are hereinafter referred to as the “bail-in tool” and the bail-in tool and each of the other resolution measures are hereinafter referred to as a “Resolution Measure.” The competent resolution authority may apply Resolution Measures individually or in any combination. Imposition of a Resolution Measure would likely occur if the competent supervisory authority determines that we are failing or likely to fail and that certain other conditions are met (as set forth under the applicable law). Our ordinary shares, capital securities, tier 2 instruments and eligible liabilities senior debt securities may become subject to Resolution Measures even before the commencement of a resolution procedure, and also if the competent resolution authority deems that our viability depends on a write-down or conversion of such securities, or if we require extraordinary public support (subject to certain exceptions). The BRRD, the Resolution Act and, as applicable, the SRM Regulation are intended to eliminate the need for public support of troubled banks, and you should be aware that public support, if any, would only potentially be used by the competent supervisory authority as a last resort after having assessed and exploited, to the maximum extent practicable, the resolution tools, including the bail-in tool.
The competent resolution authority will have to exercise its powers under the bail-in tool in a way that results in (i) common equity tier 1 instruments (such as our ordinary shares) being written down first in
20
Table of Contents
proportion to the relevant losses, (ii) thereafter, the principal amount of other capital instruments (additional tier 1 instruments, such as those we intend to issue under the capital securities indenture, and tier 2 instruments, such as those we intend to issue under the subordinated indenture) being written down on a permanent basis or converted into common equity tier 1 instruments in accordance with their order of priority, (iii) thereafter unsecured and subordinated “bail-in” able liabilities (that are neither additional tier 1 instruments nor tier 2 instruments) being written down on a permanent basis or converted into common equity tier 1 instruments in accordance with their order of priority, and (iv) thereafter, unsecured and unsubordinated “bail-in” able liabilities – such as those under the eligible liability senior debt securities, the senior debt securities, the senior debt funding securities and the warrants – being written down on a permanent basis or converted into common equity tier 1 instruments in accordance with their order of priority.
In the event of the imposition of any Resolution Measure in respect of us, you would have no claim or other right against us arising out of such Resolution Measure, and we would have no obligation to make payments under the capital securities, debt securities or warrants following the imposition of such Resolution Measure. In particular, the imposition of any Resolution Measure will not constitute a default or an event of default under the capital securities, debt securities or warrants, or under the capital securities indenture, the subordinated indenture, the eligible liabilities senior indenture, the senior indenture, the senior debt funding indenture or the warrant agreement, as applicable, or give you any other right to accelerate or terminate the capital securities, debt securities or warrants.
There is some uncertainty as to what protections, if any, will be available to holders of securities that are subject to a Resolution Measure and to the additional resolution powers that may be granted to the competent resolution authority. Under the Resolution Act, there are certain limited judicial proceedings available to challenge any Resolution Measure taken by the competent resolution authority. Limited judicial proceedings to challenge Resolution Measures under the SRM Regulation (including possible proceedings before the European Court of Justice) may also be available. However, it remains unclear what remedies may be available to holders commencing such proceedings. In addition, by your acquisition of the capital securities, debt securities or warrants, you waive (in the case of the capital securities and the debt securities, to the fullest extent permitted by the Trust Indenture Act and applicable law) any and all claims against the relevant trustee, the relevant agents and the warrant agent, as applicable, for, agree not to initiate a suit against the relevant trustee, the relevant agents or the warrant agent in respect of, and agree that the relevant trustee, the relevant agents and the warrant agent will not be liable for, any action that the relevant trustee, the relevant agents or the warrant agent 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 capital securities, debt securities or warrants. Accordingly, you may have limited or circumscribed rights to challenge any decision of the competent resolution authority to impose any Resolution Measure. The application of any Resolution Measure to the purchase contracts and units will be described in the applicable prospectus supplement we will file in connection with their issuance.
The extent to which the principal amount of, or other amount payable or deliverable with respect to, any of the securities may be subject to a Resolution Measure may depend on a number of factors that may be outside our control, and it will be difficult to predict when, if at all, a Resolution Measure might become applicable to us in our individual case. Accordingly, secondary market trading in any of the securities may not follow the trading behaviour associated with other types of securities issued by other financial institutions that may be or have been subject to a Resolution Measure. You may lose part or all of your investment in the securities if a Resolution Measure becomes applicable to us, even though the capital securities, debt securities and warrants are governed by New York law (other than, as the case may be, the provisions regarding their ranking and status or subordination, if applicable, which are governed by German law).
Our obligations under the capital securities and the subordinated debt securities are deeply subordinated obligations. In a resolution or German insolvency proceeding opened with respect to us, such ranking might result in higher losses being allocated to such lower-ranking securities than to any other debt.
Subject to Section 46(f)(7a) of the German Banking Act (Kreditwesengesetz) implementing Article 48(7) BRRD, all our obligations under own funds instruments within the meaning of Regulation (EU) No. 575/2013 of the European Parliament and the Council of June 26, 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (as supplemented or amended from time to time, the “CRR”) rank by operation of law junior to all our other
21
Table of Contents
liabilities. Under the CRR, such own funds instruments consist of common equity tier 1 instruments, additional tier 1 instruments (such as those potentially issued under the capital securities indenture) and tier 2 instruments (such as those potentially issued under the subordinated indenture) (“Own Funds Instruments”).
In the event Resolution Measures are imposed on us, or in the event of the dissolution, liquidation, insolvency (Insolvenzverfahren), composition, or other proceedings for the avoidance of insolvency of, or against, us, our obligations under the capital securities and the subordinated debt securities will be fully subordinated to all our obligations that do not qualify as Own Funds Instruments; this includes (i) claims of our unsubordinated creditors (including claims against us under our unsecured and unsubordinated non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (including our obligations under any such debt instruments that were issued by us before July 21, 2018 and that are subject to Section 46f(9) sentence 2 of the German Banking Act) (or any successor provision thereof)), (ii) the claims specified in Section 39(1) nos. 1 to 5 of the German Insolvency Code (Insolvenzordnung) (or any successor provision thereof), (iii) our contractually subordinated obligations within the meaning of Section 39(2) of the German Insolvency Code (or any successor provision thereof) which do not qualify as Own Funds Instruments at the time of Resolution Measures being imposed on us or in the event of a dissolution, liquidation, insolvency, composition or other proceedings for the avoidance of insolvency of, or against, us, and (iv) other contractually subordinated obligations of ours within the meaning of Section 46f(7a) sentences 3 and 4 of the German Banking Act (or any successor provision thereto).
Our obligations under the capital securities will rank senior to all our obligations resulting from common equity tier 1 instruments but junior to our obligations under tier 2 instruments within the meaning of the CRR (e.g., our subordinated debt securities that qualify as such). If (i) the capital securities are deemed not to have qualified as additional tier 1 instruments or other Own Funds Instruments or at any time cease to so qualify, or (ii) the subordinated debt securities are deemed not to have qualified as tier 2 instruments or other Own Funds Instruments or at any time cease to so qualify, the obligations under the capital securities or, as the case may be, under the subordinated debt securities will rank, pursuant to Section 46f(7a) sentence 3 of the German Banking Act, senior to all obligations under Own Funds Instruments. Accordingly, in the event Resolution Measures are imposed on us, or in the event of the dissolution, liquidation, insolvency (Insolvenzverfahren), composition, or other proceedings for the avoidance of insolvency of, or against, us, no amounts will be payable in respect of the capital securities and the subordinated debt securities until the claims of our unsubordinated creditors and contractually subordinated creditors, whose claims do not qualify as Own Funds Instruments have been satisfied in full. Additionally, no amounts will be payable in respect of our capital securities until the claims of our creditors resulting from our tier 2 instruments (within the meaning of the CRR) have been satisfied in full.
Therefore, due to the deep subordination of our capital securities and our subordinated debt securities, there is a significant risk that such ranking might result in higher losses being allocated to such lower-ranking securities in the events described above than to any other debt.
In a resolution or German insolvency proceeding opened with respect to us, certain specifically defined senior unsecured debt instruments (Schuldtitel) of ours (such as the eligible liabilities senior debt securities described in this prospectus) will rank junior to all of our other outstanding senior unsecured unsubordinated obligations, and will be satisfied only if all of our other senior unsecured unsubordinated obligations have been paid in full. Such ranking might result in higher losses being allocated to such lower-ranking debt securities than to our other outstanding unsecured unsubordinated obligations.
Section 46f(5) to (9) of the German Banking Act allows us to issue different categories of senior debt securities. In accordance with such rules, we may issue senior debt securities that are “structured” (as explained below) and that constitute “senior preferred” debt securities. In addition, we are able to issue “non-structured” senior debt securities as “senior preferred” debt securities, ranking pari passu with our “structured” senior debt securities. Such “senior preferred” debt securities, whether “structured” or “non-structured”, will rank pari passu with, among other obligations, instruments of indebtedness with an initial term of less than one year, derivatives and, generally, corporate deposits (unless they rank even more senior). Finally, subject to Section 46f(6) of the German Banking Act, we may issue “non-structured” debt securities as senior “non-preferred” debt instruments (Schuldtitel) ranking junior to, among other instruments, “senior preferred” debt securities, if they contain an express reference to
22
Table of Contents
their lower ranking. In respect of the securities covered by this prospectus, we have elected to do so only under the eligible liabilities senior indenture, not the senior indenture or the senior debt funding indenture.
A large portion of our liabilities consists of senior unsecured obligations that do not constitute debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (including those that are subject to Section 46f(9) of the German Banking Act). Pursuant to Section 46f(9) of the German Banking Act, Section 46f(5) through (7) of the German Banking Act in their form before the amendments of July 21, 2018, remain applicable to debt instruments issued prior to such date. Accordingly, instruments of indebtedness constituting senior non-preferred debt prior to the changes continue to rank as senior non-preferred debt even if they do not contain an express reference to their lower ranking as determined through Section 46f(6) of the German Banking Act, as required for issuances from and after July 21, 2018.
Debt instruments (Schuldtitel) within the meaning of Section 46f(6) sentence 1 of the German Banking Act comprise “non-structured” bearer bonds, negotiable registered bonds and similar instruments with an initial term of at least one year, as well as promissory notes and non-negotiable registered bonds which do not qualify as deposits, unless they are expressly exempted and, if the instrument was issued on or after July 21, 2018, we have designated it to rank junior to our other senior unsecured obligations (as we have for the eligible liabilities senior debt securities) pursuant to Section 46f(6) of the German Banking Act. Among the unsecured unsubordinated obligations that do not constitute as such debt instruments are instruments with an initial maturity of less than one year as well as senior unsecured instruments of indebtedness whose terms provide that (i) the repayment or the amount of the repayment depends on the occurrence or non-occurrence of an event which is uncertain at the point in time when the senior unsecured instruments of indebtedness are issued or is settled in a way other than by monetary payment or (ii) the payment of interest or the amount of the interest payments depends on the occurrence or non-occurrence of an event which is uncertain at the point in time when the senior unsecured instruments of indebtedness are issued unless the payment of interest or the amount of the interest payments solely depends on a customary fixed or floating reference interest rate and is settled by monetary payment. In a German insolvency proceeding or in the event of the imposition of Resolution Measures with respect to us, the competent regulatory authority or court would determine whether a security qualifies as a debt instrument, when it was issued, as well as which of our senior debt securities have the terms described in clauses (i) or (ii) above, referred to herein as the “structured” debt securities, and which do not, referred to herein as the “non-structured” debt securities. The relevant pricing supplement for each issuance may state in which category we expect such issuance to be classified, but the competent regulatory authority or court may classify the debt securities differently.
Our senior non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act, such as the eligible liabilities senior debt securities and non-structured senior debt instruments issued prior to July 21, 2018, rank junior to our other unsubordinated liabilities (including, but not limited to, senior preferred debt securities, whether “structured” or “non-structured”, deposits, derivatives and instruments of indebtedness with an initial term of less than one year), but in priority to our contractually or statutorily subordinated liabilities, such as those qualifying as additional tier 1 or tier 2 instruments within the meaning of the CRR, and would be satisfied only if all our other unsecured and unsubordinated obligations have been paid in full.
Consequently, if insolvency proceedings are opened against us or if Resolution Measures are imposed on us, higher losses could be allocated to our eligible liabilities senior debt securities than to most of our other outstanding unsecured unsubordinated obligations.
Exchange Rates and Exchange Controls May Affect the Securities’ Value or Return
Securities involving foreign currencies are subject to general exchange rate and exchange control risks.
An investment in a security that is denominated or payable in, or the payment of which is linked to the value of, currencies other than U.S. dollars entails significant risks. These risks include the possibility of significant changes resulting from market changes in rates of exchange between the U.S. dollar and the relevant foreign currencies and the possibility of the imposition or modification of exchange controls by governments. These risks generally depend on market forces and economic and political events over which we have no control.
23
Table of Contents
Exchange rates will affect your investment.
In recent years, rates of exchange between U.S. dollars and some foreign currencies have been highly volatile and this volatility may continue in the future. Fluctuations in any particular exchange rate that have occurred in the past are not necessarily indicative, however, of fluctuations that may occur while you are a holder of any security. Depreciation against the U.S. dollar of the currency in which a security is payable would result in a decrease in the effective yield of the security below its interest rate, if any, and could result in an overall loss to you on a U.S. dollar basis. In addition, depending on the specific terms of a currency-linked security, changes in exchange rates relating to any of the relevant currencies could result in a decrease in its effective yield and in your loss of all or a substantial portion of the value of that security.
We have no control over exchange rates.
Foreign exchange rates can either float or be fixed by sovereign governments. Exchange rates of most economically developed nations are permitted to fluctuate in value relative to the U.S. dollar and to each other. However, from time to time, governments may use a variety of techniques, such as intervention by a country’s central bank, the imposition of regulatory controls or taxes or changes in interest rates to influence the exchange rates of their currencies. Governments may also issue a new currency to replace an existing currency or alter the exchange rate or relative exchange characteristics by a devaluation or revaluation of a currency. These governmental actions could change or interfere with currency valuations and currency fluctuations that would otherwise occur in response to economic forces, as well as in response to the movement of currencies across borders. As a consequence, these governmental actions could adversely affect the U.S. dollar-equivalent yields or payouts for securities denominated or payable in currencies other than U.S. dollars and currency-linked securities.
We will not make any adjustment or change in the terms of the securities in the event that exchange rates should become fixed, or in the event of any devaluation or revaluation or imposition of exchange or other regulatory controls or taxes, or in the event of other developments affecting the U.S. dollar or any applicable foreign currency. You will bear those risks.
Some foreign currencies may become unavailable.
Governments have imposed from time to time, and may in the future impose, exchange controls that could also affect the availability of a specified foreign currency. Even if there are no actual exchange controls, it is possible that the applicable currency for any security not denominated in U.S. dollars would not be available when payments on that security are due.
Alternative payment method used if payment currency becomes unavailable.
If a payment currency is unavailable, we would make required payments in U.S. dollars on the basis of the market exchange rate.
Currency conversions may affect payments on some securities.
The applicable pricing supplement may provide for payments on a non-U.S. dollar denominated security to be made in U.S. dollars or payments on a U.S. dollar denominated security to be made in a currency other than U.S. dollars. In these cases, the exchange rate agent identified in the pricing supplement will convert the currencies. You will bear the costs of conversion through deductions from those payments.
Exchange rates may affect the value of a New York judgment involving non-U.S. dollar securities.
Certain of the securities will, in whole or in part, be governed by and construed in accordance with the laws of the State of New York. Unlike many courts in the United States outside the State of New York, the courts in the State of New York customarily enter judgments or decrees for money damages in the foreign currency in which the securities are denominated. These amounts would then be converted into U.S. dollars at the rate of exchange in effect on the date the judgment or decree is entered. You would bear the foreign currency risk during litigation.
Additional risks specific to particular securities will be described in the applicable pricing supplement.
24
Table of Contents
DEUTSCHE BANK AKTIENGESELLSCHAFT
Deutsche Bank Aktiengesellschaft is a stock corporation organized under the laws of Germany registered in the Commercial Register of the District Court in Frankfurt am Main under registration number HRB 30 000. Our registered office is in Frankfurt am Main. We maintain our head office at Taunusanlage 12, 60325 Frankfurt am Main, Germany.
Deutsche Bank Aktiengesellschaft originated from the reunification of Norddeutsche Bank Aktiengesellschaft, Hamburg, Rheinisch-Westfälische Bank Aktiengesellschaft, Düsseldorf, and Süddeutsche Bank Aktiengesellschaft, Munich. Pursuant to the Law on the Regional Scope of Credit Institutions, these were disincorporated in 1952 from Deutsche Bank, which had been founded in 1870. The merger and the name were entered in the Commercial Register of the District Court Frankfurt am Main on May 2, 1957.
We are the parent company of a group consisting of banks, capital market companies, fund management companies, a real-estate finance company, installment financing companies, research and consultancy companies and other German and non-German companies. We offer a wide variety of investment, financial and related products and services to private individuals, corporate entities and institutional clients around the world.
We are one of the largest banks in Germany and one of the largest financial institutions in Europe and the world measured by total assets. As of March 31, 2024, on an unaudited basis, we had total assets of € 1,336 billion, total liabilities of € 1,259 billion and total equity of € 77 billion, in each case on the basis of IFRS as issued by the IASB.
As of March 31, 2024, our share capital amounted to € 5,106,436,078.08 consisting of 1,994,701,593 ordinary shares of no par value, of which 1,974,545,703 were outstanding. The shares are fully paid up and in registered form. The shares are listed for trading and official quotation on all the German stock exchanges and are listed on the New York Stock Exchange.
Please refer to our 2023 Form 20-F and the other documents incorporated by reference herein for additional information and financial statements relating to us.
25
Table of Contents
LIMITATIONS ON ENFORCEMENT OF U.S. LAWS
Deutsche Bank AG is a German stock corporation (Aktiengesellschaft or AG), and its registered office and most of its assets are located outside of the United States. In addition, most of the members of our Management Board (Vorstand), our Supervisory Board (Aufsichtsrat), our senior management and the experts named herein are residents of Germany and jurisdictions other than the United States. As a result, it may not be possible for you to effect service of process within the United States upon these individuals or upon us or to enforce judgments obtained in U.S. courts based on the civil liability provisions of the U.S. securities laws against us in the United States. Awards of punitive damages in actions brought in the United States or elsewhere are generally not enforceable in Germany. In addition, actions brought in a German court against us or the members of our Management Board, Supervisory Board, our senior management and the experts named herein to enforce liabilities based on U.S. federal securities laws may be subject to certain restrictions; in particular, German courts generally do not award punitive damages. Litigation in Germany is also subject to rules of procedure that differ from the U.S. rules, including with respect to the taking and admissibility of evidence, the conduct of the proceedings and the allocation of costs. Proceedings in Germany would have to be conducted in the German language, and all documents submitted to the court would, in principle, have to be translated into German. For these reasons, it may be difficult for a U.S. investor to bring an original action in a German court predicated upon the civil liability provisions of the U.S. federal securities laws against us, the members of our Management Board, Supervisory Board, our senior management and the experts named in this prospectus. In addition, even if a judgment against our company, the non-U.S. members of our Management Board, Supervisory Board, senior management or the experts named in this prospectus based on the civil liability provisions of the U.S. federal securities laws is obtained, a U.S. investor may not be able to enforce it in U.S. or German courts.
26
Table of Contents
Table of Contents
We will use the net proceeds from the sale of the securities we offer by this prospectus for general corporate purposes, in connection with hedging our obligations under the securities, or for any other purposes described in the applicable prospectus supplement. General corporate purposes may include additions to working capital, investments in or extensions of credit to our subsidiaries and the repayment of indebtedness.
28
Table of Contents
DESCRIPTION OF ORDINARY SHARES
For a summary of the material terms of our Articles of Association and applicable German corporate law in effect as of the date of this prospectus regarding our ordinary shares and the holders thereof, please refer to “Item 10: Additional Information—Memorandum and Articles of Association” in our 2023 Form 20-F. Our Articles of Association were most recently adopted by the Supervisory Board on January 31, 2024 and entered into the Commercial Register in Frankfurt am Main (and therefore effective) on March 5, 2024. This summary may not contain all of the information that is important to you. You should read the Articles of Association, which are included as an exhibit to the registration statement of which this prospectus forms a part, to understand them fully.
Share Capital and Shares
As of March 31, 2024, our share capital amounted to € 5,106,436,078.08 consisting of 1,994,701,593 no par value ordinary registered shares, each representing a notional par value of € 2.56 in our share capital and carrying full dividend rights as from January 1, 2023. Thereof 20,155,890 ordinary shares, representing € 51,599,078.40 of our share capital, were held by or on behalf of the Bank or one of its subsidiaries. All issued ordinary shares are fully paid up. Below is a reconciliation of the number of ordinary shares outstanding as of December 31, 2023 and as of March 31, 2024:
| Number of ordinary shares |
Total share capital issued and fully paid |
Treasury shares (Shares held by or on behalf of the Bank or one of its subsidiaries) |
Outstanding | |||||||||
| Ordinary shares outstanding as of December 31, 2023 |
2,040,242,959 | (48,195,109 | ) | 1,992,047,850 | ||||||||
| Capital increase |
||||||||||||
| Ordinary shares issued under share-based compensation plans |
||||||||||||
| Ordinary shares cancelled |
(45,541,366) | 45,541,366 | ||||||||||
| Ordinary shares purchased for treasury |
0 | 53,641,669 | 53,641,669 | |||||||||
| Ordinary shares sold or distributed from treasury |
0 | 36,139,522 | 36,139,522 | |||||||||
|
|
|
|
|
|
|
|
||||||
| Ordinary shares outstanding as of March 31, 2024 |
1,994,701,593 | (20,155,890 | ) | 1,974,545,703 | ||||||||
|
|
|
|
|
|
|
|
||||||
According to our Articles of Association, all ordinary shares are issued in the form of registered shares. Shareholders are required to notify the Bank for registration in the share register and provide, in particular, where natural persons are concerned, their surname, first name, their address as well as their date of birth or, where legal persons are concerned, their registered name, their business address and their registered domicile, and in all cases the number of shares they hold. The entry in the Bank’s share register constitutes a prerequisite for attending and exercising voting rights at the shareholders’ meeting.
Stock Exchange Listing
Our shares have been admitted to the regulated market (Regulierter Markt) and the sub-segment of the regulated market with additional obligations arising from admission (Prime Standard) of the Frankfurt Stock Exchange (Frankfurter Wertpapierbörse) as well as to the regulated market of the six other German stock exchanges (Berlin, Düsseldorf, Hamburg, Hanover, Munich and Stuttgart). In addition, our shares are listed on the New York Stock Exchange.
Transferability of Shares
The transferability of our ordinary shares is not restricted by law or our Articles of Association.
29
Table of Contents
Development of the Share Capital Since 2020
As of December 31, 2023, our share capital amounted to € 5,106,436,078.08 consisting of 1,994,701,593 ordinary registered shares with no par value. Deutsche Bank cancelled 26,530,172 shares in 2023 and 45,541,366 in March 2024. For further information about our share capital (including a reconciliation of the number of ordinary shares outstanding at the beginning and end of each of 2022 and 2023), see note 32 to the consolidated financial statements in our 2023 Form 20-F.
Authorized Capital.
Our share capital may be increased by issuing new shares out of authorized capital against cash payments. Our authorized but unissued capital as of the date of this prospectus amounts to € 2,560,000,000. By resolution of our annual shareholders’ meeting dated May 27, 2021:
| • | the Management Board is authorized to increase our share capital on or before April 30, 2026, once or more than once, by up to a total of € 512,000,000 through the issue of new shares against cash payments. Shareholders are to be granted pre-emptive rights. However, the Management Board is authorized to except broken amounts from shareholders’ pre-emptive rights and to exclude pre-emptive rights insofar as is necessary to grant to the holders of option rights, convertible bonds and convertible participatory rights issued by us and our affiliates pre-emptive rights to new shares to the extent that they would be entitled to such rights after exercising their option or conversion rights. The Management Board is also authorized to exclude the pre-emptive rights in full if the issue price of the new shares is not significantly lower than the quoted price of the shares already listed at the time of the final determination of the issue price and the shares issued in accordance with Section 186(3) sentence 4 of the German Stock Corporation Act (Aktiengesetz) do not exceed in total 10% of the share capital at the time the authorization becomes effective or – if the value is lower – at the time the authorization is utilized. Management Board resolutions to utilize authorized capital and to exclude pre-emptive rights require the Supervisory Board’s approval. The new shares may also be taken up by banks specified by the Management Board with the obligation to offer them to shareholders (indirect pre-emptive right). |
| • | the Management Board is authorized to increase our share capital on or before April 30, 2026, once or more than once, by up to a total of € 2,048,000,000 through the issue of new shares against cash payments. Shareholders are to be granted pre-emptive rights. However, the Management Board is authorized to except broken amounts from shareholders’ pre-emptive rights and to exclude pre-emptive rights insofar as is necessary to grant to the holders of option rights, convertible bonds and convertible participatory rights issued by us and our affiliates pre-emptive rights to new shares to the extent that they would be entitled to such rights after exercising their option or conversion rights. Management Board resolutions to utilize authorized capital and to exclude pre-emptive rights require the Supervisory Board’s approval. The new shares may also be taken up by banks specified by the Management Board with the obligation to offer them to shareholders (indirect pre-emptive right). |
Conditional Capital.
Deutsche Bank has no outstanding conditional capital as of December 31, 2023, as the authorization expired unused on April 30, 2023.
Authorization to Acquire Own Shares.
As of March 31, 2024, we held 20,155,890 of our own shares.
Authorization pursuant to Section 71(1) no. 8 of the German Stock Corporation Act.
On May 17, 2023 our annual shareholders’ meeting resolved to authorize the Management Board, pursuant to Section 71(1) no. 8 of the German Stock Corporation Act, to acquire own shares.
We are authorized pursuant to Section 71(1) no. 8 of the German Stock Corporation Act to buy, on or before April 30, 2028, own shares of the Bank in a total volume of up to 10% of our share capital at the time the resolution was taken or – if the value is lower – of our share capital at the time this authorization is exercised. Together with the own shares we acquired for trading purposes and/or for
30
Table of Contents
other reasons and which are from time to time in our possession or attributable to us pursuant to Sections 71a et seq. of the German Stock Corporation Act, the own shares purchased on the basis of this authorization may not at any time exceed 10% of our respectively applicable share capital. The own shares may be bought through the stock exchange or by means of a public purchase offer to all shareholders. The countervalue for the purchase of shares (excluding ancillary purchase costs) through a stock exchange may not be more than 10% higher or more than 20% lower than the average of the share prices (closing auction prices of our share in Xetra trading and/or in a comparable successor system on the Frankfurt Stock Exchange) on the last three stock exchange trading days before the obligation to purchase. In the case of a public purchase offer, it may not be more than 10% higher or more than 20% lower than the average of the share prices (closing auction prices of our share in Xetra trading and/or in a comparable successor system on the Frankfurt Stock Exchange) on the last three stock exchange trading days before the day of publication of the offer. If the volume of shares offered in a public purchase offer exceeds the planned buyback volume, acceptance must be in proportion to the shares offered in each case. We may provide for a preferred acceptance of small quantities of up to 50 of our shares offered for purchase per shareholder.
The Management Board is authorized to dispose of the purchased shares and of any shares purchased on the basis of previous authorizations pursuant to Section 71(1) no. 8 of the German Stock Corporation Act on the stock exchange or by an offer to all shareholders. The Management Board is also authorized to dispose of the purchased shares against contribution in kind with the exclusion of shareholders’ pre-emptive rights for the purpose of acquiring companies or shareholdings in companies or other assets that serve to advance the company’s business operations. The Management Board is also authorized to use shares purchased on the basis of authorizations pursuant to Section 71(1) no. 8 of the German Stock Corporation Act to issue staff shares to our and our affiliates’ employees and retired employees or to use them to service option rights on our shares and/or rights or duties to purchase our shares granted to our and our affiliates’ employees or members of executive or non-executive management bodies.
Furthermore, the Management Board is authorized, with the exclusion of shareholders’ pre-emptive rights, to sell such own shares to third parties against cash payment if the purchase price is not substantially lower than the price of our shares on the stock exchange at the time of sale. This authorization may only be used to the extent it has been ensured that the number of shares sold on the basis of this authorization does not exceed 10% of our share capital at the time this authorization becomes effective or—if the amount is lower—at the time this authorization is exercised. Shares that are issued or sold during the validity of this authorization with the exclusion of pre-emptive rights, in direct or analogous application of Section 186(3) sentence 4 of the German Stock Corporation Act, are to be included in the maximum limit of 10% of our share capital. Shares that are to be issued to service option and/or conversion rights from convertible bonds, bonds with warrants, convertible participatory rights or participatory rights are also to be included to the extent these bonds or participatory rights are issued during the validity of this authorization with the exclusion of pre-emptive rights in corresponding application of Section 186(3) sentence 4 of the German Stock Corporation Act.
The Management Board may cancel shares acquired on the basis of this or a preceding authorization without any further resolution of the shareholders’ meeting.
We may purchase shares subject to the authorization to acquire own shares described above with the use of put and call options or forward purchase contracts. We may sell to third parties put options based on physical delivery and buy call options from third parties if it is ensured by the option conditions that these options are fulfilled only with shares which themselves were acquired subject to compliance with the principle of equal treatment. All share purchases based on put or call options are limited to shares in a maximum volume of 5% of our actual share capital at the time of the resolution by the annual shareholders meeting on this authorization. The term of the options must be selected such that the share purchase upon exercising the option is carried out at the latest on April 30, 2028.
The purchase price to be paid per share upon exercise of the put options or upon the maturity of the forward purchase may not exceed by more than 10% or fall below 10% of the average of the share prices (closing auction prices of the Deutsche Bank share in Xetra trading and/or in a comparable successor system on the Frankfurt Stock Exchange) on the last three stock exchange trading days before conclusion of the respective transaction in each case excluding ancillary purchase costs but taking into account the option premium received. The call options may only be exercised if the purchase price to be paid does not exceed by more than 10% or fall below 10% of the average of the share prices (closing auction prices of the Deutsche Bank share in Xetra trading and/or in a comparable
31
Table of Contents
successor system on the Frankfurt Stock Exchange) on the last three stock exchange trading days before the acquisition of the shares. The rules specified above apply to the sale and cancellation of shares acquired with the use of derivatives.
We may continue to purchase own shares using existing derivatives that were agreed on the basis and during the existence of previous authorizations.
Authorization pursuant to Section 71(1) no. 7 of the German Stock Corporation Act.
On May 27, 2021 our annual shareholders’ meeting resolved to authorize the Management Board, pursuant to Section 71(1) no. 7 of the German Stock Corporation Act, to acquire own shares for trading purposes.
We are authorized pursuant to Section 71(1) no. 7 of the German Stock Corporation Act to buy and sell, for the purposes of securities trading, on or before April 30, 2026, own shares of the Bank, at prices which do not exceed or fall short by more than 10% of the average of the Bank’s share prices (closing auction prices of the Deutsche Bank share in Xetra trading and/or in a comparable successor system on the Frankfurt Stock Exchange) on the respective three preceding stock exchange trading days. In this context, the shares acquired for this purpose may not, at the end of any day, exceed 5% of our share capital.
Dividends and Paying Agents
For more information on our dividend policy and legal basis for dividends under German law, see our 2023 Form 20-F “Item 8: Financial Information—Dividend Policy.”
Shareholders registered with our New York transfer agent will be entitled to elect whether to receive dividend payments in euros or U.S. dollars. For those shareholders, unless instructed otherwise, we will convert all cash dividends and other cash distributions with respect to ordinary shares into U.S. dollars prior to payment to the shareholder. The amount distributed will be reduced by any amounts we or our New York transfer agent are required to withhold for taxes or other governmental charges. If our New York transfer agent determines, following consultation with us, that in its judgment any foreign currency it receives is not convertible or distributable, our New York transfer agent may distribute the foreign currency (or a document evidencing the right to receive such currency) or, in its discretion, hold the foreign currency for the account of the shareholder to receive the same.
If any of our distributions consists of a dividend of our shares, Link Market Services GmbH, our registrar and transfer agent for our ordinary shares, and our New York transfer agent (with respect to shares individually certificated) or the custodian bank with which shareholders have deposited their shares (with respect to shares in global form) will distribute the shares to the shareholders in proportion to their existing shareholdings. Rather than distribute fractional shares, Link Market Services GmbH, our New York transfer agent or the custodian bank will sell all such fractional shares and distribute the net proceeds to shareholders.
Link Market Services GmbH and our New York transfer agent (with respect to shares individually certificated) or the custodian bank with which shareholders have deposited their shares (with respect to shares in global form) will also distribute all distributions (other than cash, our shares or rights) to shareholders in proportion to their shareholdings. In the event that Link Market Services GmbH, our New York transfer agent or the custodian bank determine that the distribution cannot be made proportionately among shareholders or that it is impossible to make the distribution, they may adopt any method that they consider fair and practicable to effect the distribution. Such methods may include the public or private sale of all or a portion of the securities or property and the distribution of the proceeds. Link Market Services GmbH, our New York transfer agent or the custodian bank must consult with us before adopting any alternative method of distribution.
Depending on whether shares are individually certificated or in global form, we, Link Market Services GmbH, our New York transfer agent or the custodian bank with which shareholders have deposited their shares will determine whether or not any distribution (including cash, shares, rights or property) is subject to tax or governmental charges. In the case of a cash distribution, we may use all or part of the cash to pay any such tax or governmental charge. In the case of other distributions, we, Link Market Services GmbH, our New York transfer agent or the custodian bank may dispose of all or part of the property to be distributed by public or private sale, in order to pay the tax or governmental charge. In all cases, shareholders will receive any net proceeds of any sale or the balance of the cash or property after the deduction for taxes or governmental charges in proportion to their shareholdings.
32
Table of Contents
Additional Capital
For a description of our authorized but unissued capital, conditional capital and share-based compensation plans, please see “Development of the Share Capital since 2020—Authorized Capital” and “Development of the Share Capital since 2020—Conditional Capital” above, and note 32 to the consolidated financial statements in our 2023 Form 20-F. For a description of our share-based compensation plans, please see note 33 to the consolidated financial statements in our 2023 Form 20-F.
Stock Options
As of the date of this prospectus there were no persons to whom our capital is under option or agreed conditionally or unconditionally to be put under option.
33
Table of Contents
DESCRIPTION OF TRADABLE SUBSCRIPTION RIGHTS TO SUBSCRIBE FOR ORDINARY SHARES
We may offer tradable statutory subscription rights to subscribe for ordinary shares of Deutsche Bank Aktiengesellschaft. The applicable prospectus supplement will describe the specific terms of any such subscription rights offering, including, as applicable:
| • | the title of the subscription rights; |
| • | the exercise price for the subscription rights; |
| • | the aggregate number of subscription rights issued; |
| • | a discussion of the material U.S. federal, German or other income tax considerations, as well as considerations under the U.S. Employee Retirement Income Security Act of 1974, or “ERISA,” applicable to the issuance of ordinary shares together with statutory subscription rights or exercise of the subscription rights; |
| • | any other terms of the subscription rights, including terms, procedures and limitations relating to the exercise of the subscription rights; |
| • | the terms of the ordinary shares corresponding to the subscription rights; |
| • | information regarding the trading of subscription rights, including the stock exchanges, if any, on which the subscription rights will be tradeable; |
| • | the record date, if any, to determine who is entitled to the subscription rights and the ex-rights date; |
| • | the date on which the rights to exercise the subscription rights will commence, and the date on which the rights will expire; |
| • | the extent to which the offering includes a contractual over-subscription privilege with respect to unsubscribed securities; and |
| • | the material terms of any standby underwriting arrangement we enter into in connection with the offering. |
Each subscription right will entitle its holder to subscribe for a number of our ordinary shares at an exercise price described in the prospectus supplement. Subscription rights may be exercised at any time up to the close of business on the expiration date set forth in the prospectus supplement. After the close of business on the expiration date, all unexercised subscription rights will become void. Upon receipt of payment and, if applicable, the subscription form properly completed and executed at the subscription rights agent’s office or another office indicated in the prospectus supplement, we will, as soon as practicable, forward our ordinary shares that can be subscribed for with that exercise. The prospectus supplement may offer more details on how to exercise the subscription rights. If we determine to make appropriate arrangements for rights trading, persons other than our shareholders can acquire rights as described in the prospectus supplement. In the event subscription rights are offered only to our shareholders and their rights remain unexercised, we may determine to offer the unsubscribed offered securities to persons other than our shareholders. In addition, we may enter into a standby underwriting arrangement with one or more underwriters under which the underwriter or underwriters, as the case may be, will purchase any offered securities remaining unsubscribed for after the offering, as described in the prospectus supplement.
34
Table of Contents
DESCRIPTION OF CAPITAL SECURITIES
This section describes the general terms that will apply to any capital securities that may be offered pursuant to this prospectus by Deutsche Bank AG, acting through its head office or through one of its branches. The specific terms of the capital securities we are offering, and the extent to which the general terms described in this section apply to those securities, will be described in one or more related prospectus supplements at the time of the offer.
General
As used in this prospectus, the term “capital securities” means the subordinated capital securities that Deutsche Bank AG issues, acting through its head office or through one of its branches, and that the trustee authenticates and delivers under the capital securities indenture.
We may issue capital securities, acting through our head office or through one of our branches. Deutsche Bank AG as a whole is responsible for the obligations of its branches. Where, however, Deutsche Bank AG is delayed in performing or is unable, whether in whole or in part, to perform the obligations of the branch that issued any capital securities through such branch due to any law, requirement or any other act of state or of any authority in the jurisdiction of such branch, investors may be unable to seek performance of such obligations through any of Deutsche Bank’s other branches or offices (including its head office).
The Capital Securities Indenture
The capital securities offered pursuant to this prospectus will be issued in one or more series under, and will be governed by, the base capital securities indenture, dated as of August 3, 2021 (as amended or supplemented from time to time), among us, as issuer, The Bank of New York Mellon, London Branch, 160 Queen Victoria Street, London, EC4V 4LA, United Kingdom, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, calculation agent, transfer agent and registrar and authenticating agent, as may be amended and supplemented from time to time.
The capital securities indenture is qualified under the Trust Indenture Act. Under the provisions of the Trust Indenture Act, if the same institution acts as trustee under the capital securities indenture and also as trustee under any other indenture under which securities of ours are issued, upon a default in any series of securities issued under either indenture, the trustee may be deemed to have a conflicting interest and may be required to resign and a successor trustee will be appointed. As of the date of this prospectus, The Bank of New York Mellon acts both as trustee under the capital securities indenture and as trustee under indentures relating to our eligible liabilities senior debt securities and our trust preferred securities.
In this sub-section, we refer to the trustee under the capital securities indenture, including any successor trustee, as the “trustee” with respect to that indenture and the capital securities issued under it. We refer to the capital securities indenture, as it may be supplemented from time to time, as the “capital securities indenture.”
We have summarized below the material provisions of the capital securities indenture and the capital securities, or indicated which material provisions will be described in the related prospectus supplement. These descriptions are only summaries and are qualified in their entirety by the capital securities indenture. The terms of the capital securities indenture will include both those stated in the capital securities indenture and those made part of the capital securities indenture by the Trust Indenture Act. The capital securities indenture and the supplements thereto (including the form of second supplemental capital securities indenture) are included as exhibits to the registration statement of which this prospectus forms a part, and you should read the capital securities indenture for provisions that may be important to you.
We May Issue Different Series of Capital Securities
The capital securities indenture does not limit the amount of capital securities that may be issued. We may issue capital securities from time to time in one or more distinct series, at a price of 100% of their principal amount or at a premium or a discount. This section summarizes terms of the capital securities that apply generally to all series. The provisions of the capital securities indenture allow us not only to issue capital securities with terms different from those of capital securities previously issued under the capital securities indenture, but also to “reopen” a previously issued series of capital securities and issue additional capital securities of that series. The capital securities will not be
35
Table of Contents
secured by any property or assets of Deutsche Bank AG. We will describe many of the specific terms of the applicable series in the applicable prospectus supplement.
Ranking; Status
The capital securities (and, in the case of capital securities in bearer form, any coupons to these securities) will constitute our unsecured and subordinated obligations, ranking pari passu among themselves and pari passu with all of our other equally subordinated obligations . If Resolution Measures are imposed on us, or in the event of our dissolution, liquidation, insolvency or composition, or if other proceedings are opened for the avoidance of insolvency of, or against, us, the obligations under the capital securities will be fully subordinated to:
| (i) | the claims of our unsubordinated creditors pursuant to applicable law, including claims against us under our unsecured and unsubordinated non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including those that are subject to Section 46f(9) of the German Banking Act) or any successor provision, |
| (ii) | the claims specified in Section 39(1) nos. 1 to 5 of the German Insolvency Code (Insolvenzordnung) or any successor provision, |
| (iii) | our contractually subordinated obligations within the meaning of Section 39(2) of the German Insolvency Code (or any successor provision) which do not qualify as Own Funds Instruments (within the meaning of the CRR) at the time Resolution Measures are imposed on us or in the event of our dissolution, liquidation, insolvency, composition or other proceedings for the avoidance of insolvency of, or against us, |
| (iv) | our other contractually subordinated obligations within the meaning of Section 46f(7a) sentences 3 and 4 of the German Banking Act (or any successor provision thereto), and |
| (v) | the claims under our tier 2 instruments (within the meaning of Article 63 of the CRR). |
We refer to such claims and obligations in (i) – (v) as the “Priority Claims”.
If the Capital Securities are deemed not to have qualified as additional tier 1 instruments (within the meaning of the CRR) or other Own Funds Instruments or at any time cease to so qualify, the obligations under the Capital Securities will, pursuant to Section 46f(7a) sentence 3 of the German Banking Act, rank senior to all obligations under Own Funds Instruments. Subject to the foregoing, we may satisfy our obligations under the capital securities also from our other distributable assets (freies Vermögen).
“CRR” means Regulation (EU) No 575/2013 of the European Parliament and the Council of June 26, 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 capital securities also refer to such amended provisions or successor provisions.
Our payment obligations under the capital securities will rank pari passu with the claims against us under our other instruments issued as additional tier 1 capital within the meaning of the CRR and listed in the applicable prospectus supplement.
Resolution Measures
By acquiring any capital securities, you will be bound by and will be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority. As a result, you would have no claim or other right against us arising out of any Resolution Measure. In addition, by your acquisition of capital securities, you waive, to the fullest extent permitted by the Trust Indenture Act and applicable law, any and all claims against the trustee for the capital securities and the paying agent, calculation agent, transfer agent and registrar and authenticating agent (which we refer to as the “capital securities agents” herein) for, agree not to initiate a suit against such trustee or the capital securities agents in respect of, and agree that such trustee and the capital securities agents will not be liable for, any action that such trustee or the capital securities agents take, or abstain from taking, in either case in accordance with the imposition of a Resolution Measure by the competent resolution authority with respect to the capital securities. Accordingly, you may have limited or circumscribed rights to challenge any decision of the competent resolution authority to impose any Resolution Measure. For more information, please see the sections “Resolution Measures” and “Risk Factors” in this prospectus.
36
Table of Contents
Qualification as Regulatory Capital
We may issue capital securities that have terms that enable them to qualify as our additional tier 1 capital, as defined and provided for in the bank regulatory capital provisions to which we are subject.
We will include in prospectus supplements descriptions of the terms of any capital securities that we intend to qualify for inclusion in our regulatory capital.
Subordination; No Set-off; No Security; Early Redemption
The discussion of subordination in this section applies to each of the capital securities issued by Deutsche Bank AG under the capital securities indenture, acting through its head office or through one of its branches.
The capital securities will constitute our unsecured and subordinated obligations, ranking pari passu among themselves and pari passu with all of our other equally subordinated obligations. Our payment obligations under the capital securities will rank pari passu with the claims against us under our other instruments issued as additional tier 1 capital within the meaning of the CRR and listed in the applicable prospectus supplement.
The capital securities indenture provides that:
| • | if Resolution Measures are imposed on us, or in the event of our dissolution, liquidation, insolvency or composition, or if other proceedings are opened for the avoidance of insolvency of, or against, us, the obligations under the capital securities will be fully subordinated to the Priority Claims. In any such event, no amounts will be payable in respect of the capital securities until the Priority Claims have been satisfied in full; |
| • | the claims of a holder of capital securities may not be set off or net against any of our claims; |
| • | no collateral or guarantee will be provided at any time to secure claims of the holders of the capital securities, and any collateral or guarantee already provided or granted in the future in connection with our other liabilities may not be used for claims under the capital securities; |
| • | no subsequent agreement may limit the subordination provisions applicable to any series of capital securities or shorten the term of any series of capital securities or any applicable notice period; |
| • | any redemption of capital securities of any series will be at our option only and subject to (i) the prior written approval of our competent supervisory authority and compliance with any applicable capital regulations (in particular, the CRR), other regulations or policies of the competent supervisory authority, and no redemption shall occur before the fifth anniversary of the date of issuance, unless the conditions set out in Article 78(4) of the CRR have been satisfied; (ii) compliance with any other regulatory requirements; and (iii) the terms of the capital securities; the holders of the capital securities shall have no right of redemption whatsoever; and |
| • | if the capital securities are redeemed or repurchased otherwise than in accordance with their terms, then the amounts paid must be returned to us irrespective of any agreement to the contrary; and prior to the payment of any redemption amount in respect of any series of capital securities, the terms of any series of capital securities may provide for a redemption notice to be rescinded (including with automatic effect) upon the occurrence of certain events (including the imposition of Regulatory Measures) relating to our solvency or regulatory capital ratios. |
If we fail to make payment of principal of, interest on, or other amounts owing under any series of capital securities at such time as such payment is requested to be made pursuant to the terms of such series of capital securities, which we refer to as a “Non-Payment Event,” and such Non-Payment Event is continuing, the trustee and the holders of capital securities could take action against us, but they may not accelerate the maturity of the capital securities and would not receive any money until the claims of the Priority Claims have been fully satisfied. Furthermore, if we become subject to German insolvency proceedings, the trustee and the holders of our capital securities will have no right to file a claim against us unless the competent insolvency court allows the filing of subordinated claims.
Payments on the Capital Securities
Denomination and Currency. The capital securities may be denominated and payable in U.S. dollars or other currencies.
37
Table of Contents
Fixed Rate and Floating Rate Capital Securities. Capital securities may bear interest at a fixed rate or a floating rate, which, in either case, may be zero, or at a rate that varies during the lifetime of the capital securities.
Cancellation of Interest Payments. We may issue capital securities from time to time with provisions for the cancellation of any interest payment at our discretion or under other circumstances.
Limitations on Payments of Principal or Interest. We may issue capital securities from time to time with limitations on our ability to pay principal or interest in respect of such capital securities, including circumstances in which we may be prohibited from making such payments.
Write-downs of Principal. We may issue capital securities from time to time with provisions for write-downs in the principal amount of such capital securities.
Contingent Convertible Capital Securities. We may issue capital securities from time to time that may or will be converted at our option or otherwise into ordinary shares of ours.
Terms Specified in Prospectus Supplement
The prospectus supplement will contain, where applicable, the following terms of and other information relating to any of the capital securities we are offering:
| • | whether the capital securities will be issued by Deutsche Bank AG, acting through its head office or through one of its branches; |
| • | the specific designation; |
| • | whether the capital securities qualify for regulatory capital treatment as additional tier 1 capital (within the meaning of the regulatory capital adequacy requirements to which we are subject) or otherwise; |
| • | the ranking of the capital securities relative to our other outstanding securities, including to what extent they may rank junior in right of payment to other of our obligations or in any other manner; |
| • | the aggregate principal amount, purchase price and denomination; |
| • | the currency in which the capital securities are denominated and/or in which principal, and premium, if any, and interest, if any, are payable; |
| • | the interest rate or rates or the method by which the calculation agent (identified in the prospectus supplement) will determine the interest rate or rates, if any, and under what circumstances interest is payable; |
| • | the date from which interest accrues and the interest payment dates, if any; |
| • | provisions, if any, for the cancellation of all or any portion of any interest payment at our discretion or under other circumstances; |
| • | limitations, if any, on our ability to pay principal or interest in respect of the capital securities, including situations in which we may be prohibited from making such payments; |
| • | provisions, if any, for write-downs (and related write-ups, if any) in the principal amount of the capital securities and the effect, if any, of such write-downs (and related write-ups, if any) on interest payable on such capital securities; |
| • | the place or places for payment of the principal of and any premium, if any, and/or interest, if any, on the capital securities; |
| • | any repayment, redemption or prepayment provisions, including any redemption notice provisions; |
| • | any terms on which the capital securities may or will be converted at our option or otherwise into ordinary shares of ours, which we refer to as “Conversion Securities,” and, if so, the nature and terms of the Conversion Securities into which such capital securities are convertible and any additional or other provisions relating to such conversion, including any triggering event that may give rise to such conversion (which may include, but shall not be limited to, certain regulatory capital events) and the terms upon which such conversion should occur; |
| • | whether we may conduct an offer of Conversion Securities after any conversion of the capital securities in order to deliver cash proceeds to holders of capital securities in lieu of the Conversion Securities and the terms upon which any such offer should occur; |
38
Table of Contents
| • | any terms relating to the adjustment of the Conversion Securities into which the capital securities may be converted; |
| • | whether we will issue the capital securities in registered form or bearer form or both and, if we are offering capital securities in bearer form, any restrictions applicable to the exchange of one form for another and to the offer, sale and delivery of those capital securities in bearer form; |
| • | whether we will issue the capital securities in global (i.e., book-entry) or definitive (i.e., certificated) form and under what terms and conditions; |
| • | information as to the methods for determining the amount of principal, premium, if any, and/or interest payable on any date; |
| • | the identity of any agents for the capital securities, including the trustee, depositaries, authenticating or paying agents, transfer agents, registrars, determination or other agents; |
| • | the proposed listing, if any, of the capital securities on any securities exchange; |
| • | whether the capital securities are to be sold separately or with other securities as part of units; |
| • | any deletions from, additions to or modifications of our covenants set forth herein with respect to the capital securities; and |
| • | any other specific terms of the capital securities and any terms required by or advisable under applicable laws or regulations. |
The prospectus supplement relating to any series of capital securities may also include, if applicable, a discussion of certain U.S. federal income tax considerations, certain German income tax consequences, certain income tax consequences due to the jurisdiction of any relevant issuing branch and certain considerations under ERISA, in each case in relation to an investment in the capital securities.
Registration and Transfer of Capital Securities
Holders may present capital securities for exchange and transfer (except bearer securities) in the manner, at the places and subject to the restrictions stated in the capital securities and described in the applicable prospectus supplement. We will provide these services without charge except for any tax or other governmental charge payable in connection with these services and subject to any limitations or requirements provided in the capital securities indenture (or any supplemental indenture thereto) or issuer order under which that series of capital securities is issued.
Holders may transfer capital securities in bearer form and/or the related coupons, if any, by delivery to the transferee.
If any of the capital securities are held in global form, the procedures for transfer of interests in those capital securities will depend upon the procedures of the depositary for those global securities. See “Forms of Securities.”
Impact of Significant Corporate Actions and Other Developments
Under German law, a surviving corporation in a merger or consolidation generally assumes the obligations of its predecessors. There are, however, no covenants in the capital securities indenture or other provisions designed to protect holders of capital securities against a reduction in our creditworthiness that would afford holders of capital securities additional protection in the event of a recapitalization transaction, a change of control of the Bank, a merger or consolidation, a sale, lease or conveyance of all or substantially all of our assets or a highly leveraged transaction or any other transaction that might adversely affect holders of capital securities.
It may be that we will depend increasingly upon the earnings and cash flow of our subsidiaries to meet our obligations under the capital securities. Since the creditors of any of our subsidiaries would generally have a right to receive payment that is superior to our right to receive payment from the assets of that subsidiary, holders of capital securities will be effectively subordinated to creditors of our subsidiaries. In addition, there are various regulatory requirements applicable to some of our subsidiaries that limit their ability to pay dividends and make loans and advances to us.
39
Table of Contents
No Defaults or Events of Default
In accordance with German law, there are no defaults or events of default under the capital securities indenture with respect to any series of the capital securities and, if German insolvency proceedings are opened with respect to us, holders of our subordinated debt securities will have no right to file a claim against us unless the competent insolvency court allows the filing of subordinated claims.
No Acceleration of Capital Securities. The capital securities indenture provides that there is no right of acceleration in the case of any non-payment of principal of, interest on or other amounts owing under any series of capital securities or a failure by us to perform any other covenant under the capital securities or under the capital securities indenture. Under no circumstances may the holders or the trustee declare the principal amount of any series of the capital securities and interest accrued thereon to be due and payable.
No Negative Pledge. The capital securities indenture contains no restrictions preventing us from incurring additional debt or from securing any of our debt by a pledge, lien or other encumbrance on any of our assets.
Indemnification of Trustee for Actions Taken on Your Behalf. The capital securities indenture provides that the trustee will not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of capital securities issued under the capital securities indenture relating to the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred upon the trustee. In addition, the capital securities indenture contains a provision entitling the trustee, subject to the duty of the trustee to act with the required standard of care during a Non-Payment Event, to be indemnified by the holders of capital securities issued under the capital securities indenture before proceeding to exercise any right or power at the request of holders. Subject to these provisions and some other limitations, the holders of a majority in aggregate principal amount of each affected series of outstanding capital securities, voting as one class, may direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee.
Limitation on Actions by You as an Individual Holder. The capital securities indenture provides that no individual holder of capital securities may institute any action against us under the capital securities indenture, except (to the extent required by the Trust Indenture Act and subject to the subordination and other provisions of any capital securities) actions to receive payment of the principal of and interest on capital securities on or after the respective due dates expressly provided for pursuant to the terms of such capital securities, unless the following actions have occurred:
| • | the holder must have previously given written notice to the trustee of the continuing Non-Payment Event; |
| • | the holders of not less than a majority in aggregate principal amount of the outstanding capital securities of each affected series, treated as one class, must have (1) requested the trustee to institute that action and (2) offered the trustee reasonable indemnity; |
| • | the trustee must have failed to institute that action within 60 days after receipt of the request referred to above; and |
| • | the holders of a majority in aggregate principal amount of the outstanding capital securities of each affected series, treated as one class, must not have given directions to the trustee inconsistent with those of the holders referred to above. |
As may be further specified in the terms of the particular series of capital securities, distributions on capital securities may be paid only out of certain distributable items, and we may retain full discretion at all times to cancel distributions on capital securities qualifying as additional tier 1 capital for an unlimited period and on a non-cumulative basis, in particular if ordered by our competent authority to not make any such distributions. In addition, depending on the terms of the series of capital securities, the principal of a capital security may be written down automatically or, by order of a competent supervisory authority, the capital securities may be converted, if a minimum regulatory capital threshold is triggered. In such cases, a holder of the capital securities would not be able to bring an action. Additionally, the provisions governing the capital securities will not give the holder the right to accelerate future scheduled payments of interest or principal.
40
Table of Contents
The capital securities indenture contains a covenant that we will file annually with the trustee a certificate specifying any instance of non-compliance in the performance of any covenants or conditions contained in the capital securities indenture, or a certificate specifying any instance of non-compliance that exists.
Discharge
We may only discharge all of our obligations under the capital securities indenture, other than as to transfers and exchanges, after we have:
| • | paid or caused to be paid the principal of and any interest or premium, if any, on all of the outstanding capital securities issued thereunder in accordance with their terms; or |
| • | delivered to the trustee for cancellation all of the outstanding capital securities issued thereunder. |
Modification of the Capital Securities Indenture
Modification without Consent of Holders. We and the trustee may enter into supplemental indentures without the consent of the holders of capital securities issued under the indentures to:
| • | evidence the assumption by a successor corporation of our obligations; |
| • | add covenants for the protection of the holders of capital securities; |
| • | cure any ambiguity or correct any inconsistency or manifest error, or to make any other provisions as we may deem necessary or desirable; |
| • | establish the forms or terms of capital securities of any series; |
| • | evidence the acceptance of appointment by a successor trustee; or |
| • | give effect to any variation to the terms of the capital securities as a result of the imposition of any Resolution Measure. |
Any such modification will be subject to the prior consent of our competent supervisory or resolution authority, as applicable, and as permitted by relevant laws and regulations.
Modification Requiring Consent of Each Holder. We and the trustee may not make any of the following changes to any outstanding capital security without the consent of each holder that would be affected by such change:
| • | reduce the principal amount of such capital security in any manner not permitted pursuant to the terms of such capital security; |
| • | reduce the rate or change the time of payment of interest of such capital security in any manner not permitted pursuant to the terms of such capital security; |
| • | reduce any amount payable on redemption; |
| • | change the currency in which the principal, premium, and interest thereon are payable; |
| • | modify or amend the provisions for conversion of any currency into another currency; |
| • | alter certain provisions of the capital securities indenture relating to capital securities not denominated in U.S. dollars; |
| • | modify the provisions of the capital securities indenture with respect to the subordination of the capital securities in a manner adverse to the holders; |
| • | reduce the percentage of capital securities the consent of whose holders is required for modification of the capital securities indenture; or |
| • | to the extent required by the Trust Indenture Act and subject to the subordination and other provisions of any capital securities, impair the right of any holder to institute actions to receive payment of the principal of and interest on capital securities on or after the respective due dates expressly provided for pursuant to the terms of such capital securities. |
Any such change will be subject to the prior consent of our competent supervisory authority, if required under the CRR or other applicable laws and regulations for the recognition of the capital securities as additional tier 1 capital.
41
Table of Contents
Modification with Consent of Holders of a Majority. We and the trustee may make any other change to the capital securities indenture and to the rights of the holders of the capital securities issued thereunder, if we obtain the consent of the holders of not less than a majority in aggregate principal amount of all affected series of outstanding capital securities issued thereunder, voting as one class. Any such change will be subject to the prior consent of our competent supervisory authority, if required under the CRR or other applicable laws and regulations for the recognition of the capital securities as additional tier 1 capital.
Concerning Our Relationship with the Trustee
We and our subsidiaries maintain ordinary banking relationships and custodial facilities with the trustee and affiliates of the trustee.
Governing Law
The capital securities indenture is, and the capital securities will be, governed by and construed in accordance with the laws of the State of New York, other than with respect to the provisions relating to the ranking of the capital securities and their status, which provisions will be governed by and construed in accordance with German law, including, in relation to such provisions, any determination of whether a Resolution Measure has been imposed on us.
42
Table of Contents
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms that will apply to any debt securities – comprising subordinated debt securities, eligible liabilities senior debt securities, senior debt securities and senior debt funding securities – that may be offered pursuant to this prospectus by Deutsche Bank AG, acting through its head office or through one of its branches. The specific terms of the debt securities we are offering, and the extent to which the general terms described in this section apply to those securities, will be described in one or more related prospectus supplements at the time of the offer.
As used in this prospectus, “debt securities” means the debentures, notes, bonds and other evidences of indebtedness that Deutsche Bank AG issues, acting through its head office or through one of its branches, and in each case, the relevant trustee authenticates and delivers under the applicable indenture relating to such indebtedness. We refer to any such debt securities that constitute subordinated indebtedness as “subordinated debt securities”; we refer to any such debt securities that constitute eligible liabilities senior indebtedness as “eligible liabilities senior debt securities”; we refer to any such debt securities that constitute senior indebtedness as “senior debt securities”; and we refer to any such debt securities that constitute senior funding indebtedness as “senior debt funding securities.”
We may issue debt securities, acting through our head office or through one of our branches. Deutsche Bank AG as a whole is responsible for the obligations of its branches. Where, however, Deutsche Bank AG is delayed in performing or is unable, whether in whole or in part, to perform the obligations of the branch that issued any debt securities through such branch due to any law, requirement or any other act of state or of any authority in the jurisdiction of such branch, investors may be unable to seek performance of such obligations through any of Deutsche Bank’s other branches or offices (including its head office).
Subordinated Debt Securities
The Subordinated Indenture
We may issue subordinated debt securities, acting through our head office or through one of our branches. The subordinated debt securities offered pursuant to this prospectus will be issued in one or more series under, and will be governed by, a subordinated indenture, dated as of August 3, 2021 (as amended or supplemented from time to time), among us, as issuer, Wilmington Trust, National Association, 1100 North Market Street, Wilmington, Delaware 19890, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, transfer agent and registrar and authenticating agent, as may be amended and supplemented from time to time.
The subordinated indenture is qualified under the Trust Indenture Act. Under the provisions of the Trust Indenture Act, if the same institution acts as trustee under the subordinated indenture and also as trustee under any other indenture under which securities of ours are issued, upon a default in any series of securities issued under either indenture, the trustee may be deemed to have a conflicting interest and may be required to resign and a successor trustee will be appointed.
In this sub-section “Description of Debt Securities—Subordinated Debt Securities,” we refer to the trustee under the subordinated indenture, including any successor trustee, as the “trustee” with respect to that indenture and the subordinated debt securities issued under it. We refer to the subordinated indenture, as it may be supplemented from time to time, as the “subordinated indenture.”
We have summarized below the material provisions of the subordinated indenture and the subordinated debt securities, or indicated which material provisions will be described in the related prospectus supplement. These descriptions are only summaries and are qualified in their entirety by the subordinated indenture. The terms of the subordinated indenture will include both those stated in that indenture and those made part of that indenture by the Trust Indenture Act. The subordinated indenture is included as an exhibit to the registration statement of which this prospectus forms a part, and you should read the subordinated indenture for provisions that may be important to you.
We May Issue Different Series of Subordinated Debt Securities
The subordinated indenture does not limit the amount of indebtedness that may be issued. We may issue subordinated debt securities from time to time in one or more distinct series, at a price of 100% of their principal amount or at a premium or a discount. This section summarizes terms of the
43
Table of Contents
subordinated debt securities that apply generally to all series. The provisions of the subordinated indenture allow us not only to issue subordinated debt securities with terms different from those of subordinated debt securities previously issued under that indenture, but also to “reopen” a previously issued series of subordinated debt securities and issue additional subordinated debt securities of that series. The subordinated debt securities will not be secured by any property or assets of Deutsche Bank AG. We will describe many of the specific terms of the applicable series in the applicable prospectus supplement.
Ranking; Status
The subordinated debt securities (and, in the case of subordinated debt securities in bearer form, any coupons to these securities) will constitute our unsecured and subordinated obligations, ranking pari passu among themselves and, pari passu with all of our other equally subordinated obligations. If Resolution Measures are imposed on us, or in the event of our dissolution, liquidation, insolvency or composition, or if other proceedings are opened for the avoidance of insolvency of, or against, us, the obligations under the subordinated debt securities will be fully subordinated to:
| (i) | the claims of our unsubordinated creditors pursuant to applicable law, including claims against us under our unsecured and unsubordinated non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including those that are subject to Section 46f(9) of the German Banking Act) or any successor provision, |
| (ii) | the claims specified in Section 39(1) nos. 1 to 5 of the German Insolvency Code (Insolvenzordnung) or any successor provision, |
| (iii) | our contractually subordinated obligations within the meaning of Section 39(2) of the German Insolvency Code (or any successor provision) which do not qualify as Own Funds Instruments at the time Resolution Measures are imposed on us or in the event of our dissolution, liquidation, insolvency, composition or other proceedings for the avoidance of insolvency of, or against us, and |
| (iv) | our other contractually subordinated obligations within the meaning of Section 46f(7a) sentences 3 and 4 of the German Banking Act (or any successor provision thereto), |
We refer to such claims and obligations in (i) – (iv) as the “Priority Claims”.
The subordinated debt securities will rank equally and pari passu with all of our other unsecured and subordinated claims (it being understood that no Priority Claims constitute subordinated claims), except as otherwise provided by applicable law or by the terms of any other indebtedness, and in particular, if such other indebtedness is expressed to rank junior to the subordinated debt securities, then the securities shall rank senior to such junior debt, but junior to the Priority Claims.
Resolution Measures
By acquiring any subordinated debt securities, you will be bound by and will be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority. As a result, you would have no claim or other right against us arising out of any Resolution Measure. In addition, by your acquisition of subordinated debt securities, you waive, to the fullest extent permitted by the Trust Indenture Act and applicable law, any and all claims against the trustee for the subordinated debt securities and the paying agent, the transfer agent and the registrar and authenticating agent (which we refer to as the “subordinated note agents” herein) for, agree not to initiate a suit against such trustee or the subordinated note agents in respect of, and agree that such trustee and the subordinated note agents will not be liable for, any action that such trustee or the subordinated note agents take, or abstain from taking, in either case in accordance with the imposition of a Resolution Measure by the competent resolution authority with respect to the subordinated debt securities. Accordingly, you may have limited or circumscribed rights to challenge any decision of the competent resolution authority to impose any Resolution Measure. For more information, please see the sections “Resolution Measures” and “Risk Factors” in this prospectus.
Qualification as Regulatory Capital
We may issue subordinated debt securities that have terms that enable them to qualify as our tier 2 capital, as defined and provided for in the bank regulatory capital provisions to which we are subject. We will include in prospectus supplements descriptions of the terms of any subordinated debt securities that we intend to qualify for inclusion in our regulatory capital.
44
Table of Contents
Subordination; No Set-off; No Security; Early Redemption
The discussion of subordination in this section applies to each of the subordinated debt securities issued by Deutsche Bank AG under the subordinated indenture, acting through its head office or through one of its branches.
The subordinated indenture provides that in the event Resolution Measures are imposed on us, or, in the event of our dissolution or liquidation, or insolvency proceedings against us, the subordinated debt securities will be subordinated to the claims of all of our Priority Claims so that in any such event no amounts will be payable under the subordinated debt securities until the claims of all creditors of Priority Claims have been satisfied in full.
Furthermore, the subordinated indenture provides that, if any series of subordinated debt securities is to qualify for regulatory banking purposes as our tier 2 capital:
| • | the claims of a holder of subordinated debt securities may not be set off or net against any of our claims; |
| • | no collateral or guarantee will be provided at any time to secure claims of the holders of the subordinated debt securities, and any collateral or guarantee already provided or granted in the future in connection with our other liabilities may not be used for claims under the subordinated debt securities; |
| • | no subsequent agreement may limit the subordination provisions applicable to any series of subordinated debt securities or amend the maturity date or redemption date of any subordinated debt securities to an earlier date or shorten any applicable notice period; |
| • | any redemption of any series of subordinated debt securities prior to their stated maturity will be at our option only and subject to our receipt of prior written approval of the competent supervisory authority, and will not occur until after the fifth anniversary of the date of issuance, except as set out in the subordinated indenture and in compliance with applicable law or regulation; and |
| • | if the subordinated debt securities are redeemed or repurchased otherwise than in accordance with the terms of the subordinated debt securities, then the amounts paid must be returned to us irrespective of any agreement to the contrary. |
If we fail to make payment of principal of, interest on, or other amounts owing under any series of subordinated debt securities at such time as such payment is requested to be made pursuant to the terms of such series of subordinated debt securities, which we refer to as a “Non-Payment Event,” and such Non-Payment Event is continuing, the trustee and the holders of subordinated debt securities could take action against us, but they may not accelerate the maturity of the subordinated debt securities and would not receive any money until the claims of the Priority Claims have been fully satisfied. Furthermore, if we become subject to German insolvency proceedings, the trustee and the holders of our subordinated debt securities will have no right to file a claim against us unless the competent insolvency court allows the filing of subordinated claims.
Payments on the Subordinated Debt Securities
Denomination and Currency. The subordinated debt securities may be denominated and payable in U.S. dollars or other currencies.
Fixed Rate and Floating Rate Subordinated Debt Securities. Subordinated debt securities may bear interest at a fixed rate or a floating rate, which, in either case, may be zero, or at a rate that varies during the lifetime of the subordinated debt securities. Subordinated debt securities bearing no interest or interest at a rate that at the time of issuance is below the prevailing market rate may be sold at a discount below their stated principal amount.
We may issue subordinated debt securities that are exchangeable, either mandatorily or at our or the holder’s option, into securities of ours or entities that are or are not affiliated with us, a basket or baskets of those securities, other property, or any combination of, or the cash value of, such securities or other property.
45
Table of Contents
Terms Specified in Prospectus Supplement
The prospectus supplement will contain, where applicable, the following terms of and other information relating to any of the subordinated debt securities we are offering:
| • | whether the subordinated debt securities will be issued by Deutsche Bank AG, acting through its head office or through one of its branches; |
| • | the specific designation; |
| • | whether the subordinated debt securities qualify for regulatory capital treatment and if so, the category of capital for which they qualify; |
| • | the ranking of the subordinated debt securities relative to our other outstanding securities, including to what extent they may rank junior in right of payment to other of our obligations or in any other manner; |
| • | the aggregate principal amount, purchase price and denomination; |
| • | the currency in which the subordinated debt securities are denominated and/or in which principal, and premium, if any, and interest, if any, are payable; |
| • | the date of maturity (and any provisions relating to extending or shortening the maturity date); |
| • | the interest rate or rates or the method by which the calculation agent (identified in the prospectus supplement) will determine the interest rate or rates, if any; |
| • | the date from which interest accrues and the interest payment dates, if any; |
| • | the place or places for payment of the principal of and any premium, if any, and/or interest, if any, on the subordinated debt securities; |
| • | any repayment, redemption or prepayment, including any redemption notice provisions; |
| • | whether we will issue the subordinated debt securities in registered form or bearer form or both and, if we are offering subordinated debt securities in bearer form, any restrictions applicable to the exchange of one form for another and to the offer, sale and delivery of those subordinated debt securities in bearer form; |
| • | whether we will issue the subordinated debt securities in global (i.e., book-entry) or definitive (i.e., certificated) form and under what terms and conditions; |
| • | the identity of any agents for the subordinated debt securities, including the trustee, depositaries, authenticating or paying agents, transfer agents, registrars, determination or other agents; |
| • | the proposed listing, if any, of the subordinated debt securities on any securities exchange; |
| • | whether the subordinated debt securities are to be sold separately or with other securities as part of units; |
| • | any deletions from, additions to or modifications of our covenants set forth herein with respect to the subordinated debt securities; and |
| • | any other specific terms of the subordinated debt securities and any terms required by or advisable under applicable laws or regulations. |
The prospectus supplement relating to any series of subordinated debt securities may also include, if applicable, a discussion of certain U.S. federal income tax considerations, certain German income tax consequences, certain income tax consequences due to the jurisdiction of any relevant issuing branch and certain considerations under ERISA, in each case in relation to an investment in the subordinated debt securities.
Registration and Transfer of Subordinated Debt Securities
Holders may present subordinated debt securities for exchange and transfer (except bearer securities) in the manner, at the places and subject to the restrictions stated in the subordinated debt securities and described in the applicable prospectus supplement. We will provide these services without charge except for any tax or other governmental charge payable in connection with these services and subject to any limitations or requirements provided in the subordinated indenture (or any supplemental indenture thereto) or issuer order under which that series of subordinated debt securities is issued.
46
Table of Contents
Holders may transfer subordinated debt securities in bearer form and/or the related coupons, if any, by delivery to the transferee.
If any of the subordinated debt securities are held in global form, the procedures for transfer of interests in those subordinated debt securities will depend upon the procedures of the depositary for those global securities. See “Forms of Securities.”
Impact of Significant Corporate Actions and Other Developments
Under German law, a surviving corporation in a merger or consolidation generally assumes the obligations of its predecessors. There are, however, no covenants in the subordinated indenture or other provisions designed to protect holders of subordinated debt securities against a reduction in our creditworthiness that would afford holders of subordinated debt securities additional protection in the event of a recapitalization transaction, a change of control of the Bank, a merger or consolidation, a sale, lease or conveyance of all or substantially all of our assets or a highly leveraged transaction or any other transaction that might adversely affect holders of subordinated debt securities.
It may be that we will depend increasingly upon the earnings and cash flow of our subsidiaries to meet our obligations under the subordinated debt securities. Since the creditors of any of our subsidiaries would generally have a right to receive payment that is superior to our right to receive payment from the assets of that subsidiary, holders of subordinated debt securities will be effectively subordinated to creditors of our subsidiaries. In addition, there are various regulatory requirements applicable to some of our subsidiaries that limit their ability to pay dividends and make loans and advances to us.
Events of Default
There are no defaults or events of default under the subordinated indenture with respect to any series of the subordinated debt securities and, if German insolvency proceedings are opened with respect to us, holders of our subordinated debt securities will have no right to file a claim against us unless the competent insolvency court allows the filing of subordinated claims.
No Acceleration of Subordinated Debt Securities. The subordinated debt securities indenture provides that there is no right of acceleration in the case of any non-payment of principal of, interest on or other amounts owing under any series of subordinated debt securities or a failure by us to perform any other covenant under the subordinated debt securities or under the subordinated indenture. Under no circumstances may the holders or the trustee declare the principal amount of any series of the subordinated debt securities and interest accrued thereon to be due and payable.
No Negative Pledge. The subordinated indenture contains no restrictions preventing us from incurring additional debt or from securing any of our debt by a pledge, lien or other encumbrance on any of our assets.
Indemnification of Trustee for Actions Taken on Your Behalf. The subordinated indenture provides that the trustee will not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of subordinated debt securities issued under the subordinated indenture relating to the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred upon the trustee. In addition, the subordinated indenture contains a provision entitling the trustee, subject to the duty of the trustee to act with the required standard of care during a Non-Payment Event, to be indemnified by the holders of subordinated debt securities issued under the subordinated indenture before proceeding to exercise any right or power at the request of holders. Subject to these provisions and some other limitations, the holders of a majority in aggregate principal amount of each affected series of outstanding subordinated debt securities, voting as one class, may direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee.
47
Table of Contents
Limitation on Actions by You as an Individual Holder. The subordinated indenture provides that no individual holder of subordinated debt securities may institute any action against us under the subordinated indenture, except (to the extent required by the Trust Indenture Act and subject to the subordination and other provisions of any subordinated debt securities) actions to receive payment of the principal of and interest on subordinated debt securities on or after the respective due dates expressly provided for pursuant to the terms of such subordinated debt securities, unless the following actions have occurred:
| • | the holder must have previously given written notice to the trustee of the continuing Non-Payment Event; |
| • | the holders of not less than a majority in aggregate principal amount of the outstanding subordinated debt securities of each affected series, treated as one class, must have (1) requested the trustee to institute that action and (2) offered the trustee reasonable indemnity; |
| • | the trustee must have failed to institute that action within 60 days after receipt of the request referred to above; and |
| • | the holders of a majority in aggregate principal amount of the outstanding subordinated debt securities of each affected series, treated as one class, must not have given directions to the trustee inconsistent with those of the holders referred to above. |
The subordinated indenture contains a covenant that we will file annually with the trustee a certificate specifying any instance of non-compliance in the performance of any covenants or conditions contained in the subordinated indenture, or a certificate specifying any instance of non-compliance that exists.
Discharge
We may only discharge all of our obligations under the subordinated indenture, other than as to transfers and exchanges, after we have:
| • | paid or caused to be paid the principal of and any interest or premium, if any, on all of the outstanding subordinated debt securities issued thereunder in accordance with their terms; or |
| • | delivered to the trustee for cancellation all of the outstanding subordinated debt securities issued thereunder. |
Modification of the Subordinated Indenture
Modification without Consent of Holders. We and the trustee may enter into supplemental subordinated indentures without the consent of the holders of subordinated debt securities issued under the subordinated indenture to:
| • | evidence the assumption by a successor corporation of our obligations; |
| • | add covenants for the protection of the holders of subordinated debt securities; |
| • | cure any ambiguity or correct any inconsistency or manifest error; |
| • | establish the forms or terms of subordinated debt securities of any series; |
| • | evidence the acceptance of appointment by a successor trustee; or |
| • | to give effect to any variation to the terms of the subordinated debt securities as a result of the imposition of any Resolution Measure. |
Any such modification will be subject to the prior consent of our competent supervisory or resolution authority, if required under the CRR or other applicable laws and regulations for the recognition of the subordinated debt securities as tier 2 capital.
Modification Requiring Consent of Each Holder. We and the trustee may not make any of the following changes to any outstanding subordinated debt security without the consent of each holder that would be affected by such change:
| • | change the final maturity of such subordinated debt security; |
| • | reduce the principal amount; |
| • | reduce the rate or change the time of payment of interest; |
48
Table of Contents
| • | reduce any amount payable on redemption; |
| • | change the currency in which the principal, including any amount of original issue discount, premium, and interest thereon are payable; |
| • | modify or amend the provisions for conversion of any currency into another currency; |
| • | reduce the amount of any original issue discount security provable in bankruptcy; |
| • | alter certain provisions of the subordinated indenture relating to subordinated debt securities not denominated in U.S. dollars; |
| • | impair the right of any holder to institute suit for the enforcement of any payment on any subordinated debt security when due; |
| • | modify the ranking of a subordinated debt security in a manner adverse to the holders thereof; or |
| • | reduce the percentage of subordinated debt securities the consent of whose holders is required for modification of the subordinated indenture. |
Any such change will be subject to the prior consent of our competent supervisory authority, if required under the CRR or other applicable laws and regulations for the recognition of the subordinated debt securities as tier 2 capital.
Modification with Consent of Holders of a Majority. We and the trustee may make any other change to the subordinated indenture and to the rights of the holders of the subordinated debt securities issued thereunder, if we obtain the consent of the holders of not less than a majority in aggregate principal amount of all affected series of outstanding subordinated debt securities issued thereunder, voting as one class. Any such change will be subject to the prior consent of our competent supervisory authority, if required under the CRR or other applicable laws and regulations for the recognition of the subordinated debt securities as tier 2 capital.
Concerning Our Relationship with the Trustee
We and our subsidiaries maintain ordinary banking relationships and custodial facilities with the trustee and affiliates of the trustee.
Governing Law
The subordinated indenture is, and the subordinated debt securities will be, governed by and construed in accordance with the laws of the State of New York, except for the subordination provisions thereof, which respectively is or will be governed by German law including, in relation to such provisions, any determination of whether a Resolution Measure has been imposed on us.
Eligible Liabilities Senior Debt Securities
The Eligible Liabilities Senior Indenture
We may issue eligible liabilities senior debt securities, acting through our head office or through one of our branches. The eligible liabilities senior debt securities offered pursuant to this prospectus will be issued in one or more series under, and will be governed by, the eligible liabilities senior indenture, dated as of August 3, 2021 (as amended or supplemented from time to time), among us, as issuer, The Bank of New York Mellon, 500 Ross Street, 12th Floor, Pittsburgh, PA 15262, United States of America as trustee, and Deutsche Bank Trust Company Americas, as paying agent, authenticating agent, issuing agent and registrar, as may be amended and supplemented from time to time.
The eligible liabilities senior indenture is qualified under the Trust Indenture Act. Under the provisions of the Trust Indenture Act, if the same institution acts as trustee under the eligible liabilities senior indenture and also as trustee under any other indenture under which securities of ours are issued, upon a default in any series of securities issued under either indenture, the trustee may be deemed to have a conflicting interest and may be required to resign and a successor trustee will be appointed. As of the date of this prospectus, The Bank of New York Mellon acts both as trustee under the eligible liabilities senior indenture and as trustee under indentures relating to our trust preferred securities and our capital securities.
In this sub-section “Description of Debt Securities—Eligible Liabilities Senior Debt Securities,” we refer to the trustee under the eligible liabilities senior indenture, including any successor trustee, as
49
Table of Contents
the “trustee” with respect to that indenture and the eligible liabilities senior debt securities issued under it. We refer to the eligible liabilities senior indenture, as it may be supplemented from time to time, as the “eligible liabilities senior indenture.”
We have summarized below the material provisions of the eligible liabilities senior indenture and the eligible liabilities senior debt securities, or indicated which material provisions will be described in the related prospectus supplement. These descriptions are only summaries and are qualified in their entirety by the eligible liabilities senior indenture. The terms of the eligible liabilities senior indenture will include both those stated in that indenture and those made part of that indenture by the Trust Indenture Act. The eligible liabilities senior indenture and the supplements thereto are included as exhibits to the registration statement of which this prospectus forms a part, and you should read the eligible liabilities senior indenture for provisions that may be important to you.
We May Issue Different Series of Eligible Liabilities Senior Debt Securities
The eligible liabilities senior indenture does not limit the amount of eligible liabilities senior debt securities that may be issued. We may issue eligible liabilities senior debt securities from time to time in one or more distinct series, at a price of 100% of their principal amount or at a premium or a discount. This section summarizes terms of the eligible liabilities senior debt securities that apply generally to all series. The provisions of the eligible liabilities senior indenture allow us not only to issue eligible liabilities senior debt securities with terms different from those of the eligible liabilities senior debt securities previously issued under that indenture, but also to “reopen” a previously issued series of eligible liabilities senior debt securities and issue additional eligible liabilities senior debt securities of that series. The eligible liabilities senior debt securities will not be secured by any property or assets of Deutsche Bank AG. We will describe many of the specific terms of the applicable series in the applicable prospectus supplement.
Ranking; Status
The eligible liabilities senior debt securities (and in the case of eligible liabilities senior debt securities in bearer form, any coupons to these securities) will constitute our unsecured and unsubordinated senior non-preferred obligations under debt instruments (Schuldtitel) within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) or any successor provision. These eligible liabilities senior debt securities will rank junior in insolvency proceedings as specified by Section 46f(5) sentence 1 of the German Banking Act. Our obligations under the eligible liabilities senior debt securities will rank pari passu among themselves and pari passu with all of our other unsecured and unsubordinated senior non-preferred obligations under debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (including the senior non-preferred obligations under any such debt instruments that we issued before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act) or any successor provision.
In accordance with Section 46f(5) of the German Banking Act, if Resolution Measures are imposed on us or in the event of our dissolution, liquidation, insolvency or composition, or if other proceedings are opened for the avoidance of the insolvency of, or against, us, our obligations under the eligible liabilities senior debt securities will rank junior to the claims of our unsubordinated creditors not qualifying as obligations under our debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (including the senior non-preferred obligations under any such debt instruments that we issued before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act) or any successor provision. In any such event, no amounts will be payable in respect of the eligible liabilities senior debt securities until the claims of such other unsubordinated creditors have been satisfied in full.
A large portion of our liabilities consists of senior unsecured obligations that do not constitute debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (including those that are subject to Section 46f(9) of the German Banking Act). Among those unsecured unsubordinated obligations that do not constitute debt instruments are instruments with an initial maturity of less than one year as well as senior unsecured instruments of indebtedness whose terms provide that (i) the repayment or the amount of the repayment depends on the occurrence or non-occurrence of an event which is uncertain at the point in time when the senior unsecured instruments of indebtedness are issued or is settled in a way other than by monetary payment or (ii) the payment of interest or the amount of the interest payments depends on the occurrence or non-occurrence of an event which is uncertain at the point in time when the senior unsecured
50
Table of Contents
instruments of indebtedness are issued unless the payment of interest or the amount of the interest payments solely depends on a customary fixed or floating reference interest rate and is settled by monetary payment.
The order of priority set forth in the German Banking Act applies to any debt instruments outstanding at the time insolvency proceedings are opened or Resolutions Measures are imposed, irrespective of when the relevant instruments were issued. In a German insolvency proceeding or in the event of the imposition of Resolution Measures with respect to us, the competent regulatory authority or court would determine whether a security qualifies as a debt instrument, when it was issued, as well as which of our senior debt securities have the terms described in clauses (i) or (ii) above, referred to herein as the “structured” debt securities, and which do not, referred to herein as the “non-structured” debt securities. The relevant pricing supplement for each issuance may state in which category we expect such issuance to be classified, but the competent regulatory authority or court may classify the debt securities differently.
Our senior non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act, such as the eligible liabilities senior debt securities and non-structured senior debt instruments issued prior to July 21, 2018, rank junior to our other unsubordinated liabilities (including, but not limited to, senior preferred debt securities, whether “structured” or “non-structured”, deposits, derivatives and instruments of indebtedness with an initial term of less than one year), but in priority to our contractually or statutorily subordinated liabilities, such as those qualifying as additional tier 1 or tier 2 instruments within the meaning of the CRR, and would be satisfied only if all our other unsecured and unsubordinated obligations have been paid in full. If insolvency proceedings are opened against us or if Resolution Measures are imposed on us, our obligations that rank junior in insolvency would be written down or converted into common equity tier 1 instruments before any of our more senior-ranking obligations are written down or converted. Accordingly, our senior non-preferred debt instruments, such as the eligible liabilities senior debt securities, would be written down or converted prior to our other unsubordinated liabilities (including, but not limited to, senior preferred debt securities such as our senior debt securities and the senior debt funding securities and also non-structured debt instruments issued on or after July 21, 2018). Consequently, higher losses could be allocated to our eligible liabilities senior debt securities than to our other outstanding unsecured unsubordinated obligations.
Resolution Measures
By acquiring any eligible liabilities senior debt securities, you will be bound by and will be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority. As a result, you would have no claim or other right against us arising out of any Resolution Measure or increased losses incurred based on the order of priority under the German Banking Act. In addition, by your acquisition of eligible liabilities senior debt securities, you waive, to the fullest extent permitted by the Trust Indenture Act and applicable law, any and all claims against the trustee for the eligible liabilities senior debt securities and the paying agent, the authenticating agent, the issuing agent and the registrar (which we refer to as the “eligible liabilities senior note agents” herein) for, agree not to initiate a suit against such trustee or the eligible liabilities senior note agents in respect of, and agree that such trustee and the eligible liabilities senior note agents will not be liable for, any action that such trustee or the eligible liabilities senior note agents take, or abstain from taking, in either case in accordance with the imposition of a Resolution Measure by the competent resolution authority with respect to the eligible liabilities senior debt securities. Accordingly, you may have limited or circumscribed rights to challenge any decision of the competent resolution authority to impose any Resolution Measure. For more information, please see the sections “Resolution Measures” and “Risk Factors” in this prospectus.
Qualification as “Eligible Liabilities”
The eligible liabilities senior debt securities will constitute senior non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act, and are intended to qualify as eligible liabilities instruments within the meaning of Articles 72a and 72b(2) CRR for the minimum requirement for own funds and eligible liabilities, as described and provided for in the bank regulatory capital provisions to which we are subject.
51
Table of Contents
No Enhancement; No Set-off; No Security; Early Redemption
The eligible liabilities senior indenture provides that:
| • | no subsequent agreement may enhance the seniority of our obligations under the eligible liabilities senior debt securities or shorten the term of any of the eligible liabilities senior debt securities or any applicable notice period; |
| • | no holder of the eligible liabilities senior debt securities may set off or net its claims arising under such eligible liabilities senior debt securities against any claims of ours; |
| • | no collateral or guarantee will be provided at any time to secure the claims of the holders under the eligible liabilities senior debt securities; any collateral or guarantee already provided or granted in the future in connection with other liabilities of ours may not be used for claims under the eligible liabilities senior debt securities; and |
| • | any redemption of any series of eligible liabilities senior debt securities prior to their scheduled maturity will be subject to (i) receipt by the Bank of prior approval of the competent resolution authority, and (ii) compliance with any other regulatory requirements. If the eligible liabilities senior debt securities are redeemed by us without the prior approval of such competent resolution authority, then the amounts paid on the eligible liabilities senior debt securities must be returned to us irrespective of any agreement to the contrary. |
If we fail to make payment on the eligible liabilities senior debt securities when due, we will be in default on our obligations under the eligible liabilities senior indenture. In such case, the trustee and the holders of eligible liabilities senior debt securities could take action against us, but they may not accelerate the maturity of the eligible liabilities senior debt securities.
Payments on the Eligible Liabilities Senior Debt Securities
Denomination and Currency. Unless otherwise specified in the applicable pricing supplement, the eligible liabilities senior debt securities will be denominated and payable in U.S. dollars.
Fixed Rate and Floating Rate Eligible Liabilities Senior Debt Securities. The eligible liabilities senior debt securities may bear interest at a fixed rate or a floating rate, which, in either case, may be zero, or at a rate that varies during the lifetime of the eligible liabilities senior debt securities. The eligible liabilities senior debt securities bearing no interest or interest at a rate that at the time of issuance is below the prevailing market rate may be sold at a discount below their stated principal amount.
Terms Specified in Prospectus Supplement
The prospectus supplement will contain, where applicable, the following terms of and other information relating to any of the eligible liabilities senior debt securities we are offering:
| • | whether the eligible liabilities senior debt securities will be issued by Deutsche Bank AG, acting through its head office or through one of its branches; |
| • | the specific designation; |
| • | the qualification of the eligible liabilities senior debt securities as eligible liabilities for bank regulatory purposes; |
| • | the ranking of the eligible liabilities senior debt securities relative to our other outstanding securities, including whether they provide for an explicit reference to their lower ranking as determined through Section 46f(5) of the German Banking Act and to what extent they may rank junior in right of payment to other of our obligations or in any other manner; |
| • | whether we are permitted to substitute the office through which we are acting for all purposes under the eligible liabilities senior debt securities; |
| • | the aggregate principal amount, purchase price and denomination; |
| • | the currency, if other than U.S. dollars, in which the eligible liabilities senior debt securities are denominated and/or in which principal, and premium, if any, and interest, if any, are payable; |
| • | the date of maturity (and any provisions relating to postponing or shortening the maturity date to account for days that are not business days); |
| • | the interest rate or rates or the method by which the calculation agent (identified in the prospectus supplement) will determine the interest rate or rates, if any; |
52
Table of Contents
| • | the date from which interest accrues and the interest payment dates, if any; |
| • | the place or places for payment of the principal of and any premium, if any, and/or interest, if any, on the eligible liabilities senior debt securities; |
| • | any redemption provisions, including any redemption notice provisions; |
| • | whether we will issue the eligible liabilities senior debt securities in registered form or bearer form or both and, if we are offering eligible liabilities senior debt securities in bearer form, any restrictions applicable to the exchange of one form for another and to the offer, sale and delivery of those eligible liabilities senior debt securities in bearer form; |
| • | whether we will issue the eligible liabilities senior debt securities in global (i.e., book-entry) or definitive (i.e., certificated) form and under what terms and conditions; |
| • | the identity of any agents for the eligible liabilities senior debt securities, including the trustee, depositaries, authenticating or paying agents, transfer agents, registrars, determination or other agents; |
| • | the proposed listing, if any, of the eligible liabilities senior debt securities on any securities exchange; |
| • | any additions to or modifications of our covenants set forth herein with respect to the eligible liabilities senior debt securities; and |
| • | any other specific terms of the eligible liabilities senior debt securities and any terms required by or advisable under applicable laws or regulations. |
The prospectus supplement relating to any series of eligible liabilities senior debt securities may also include, if applicable, a discussion of certain U.S. federal income tax considerations, certain German income tax consequences, certain income tax consequences due to the jurisdiction of any relevant issuing branch and certain considerations under ERISA, in each case in relation to an investment in the eligible liabilities senior debt securities.
Registration and Transfer of Eligible Liabilities Senior Debt Securities
Holders may present eligible liabilities senior debt securities for exchange and transfer (except bearer securities) in the manner, at the places and subject to the restrictions stated in the eligible liabilities senior debt securities and described in the applicable prospectus supplement. We will provide these services without charge except for any tax or other governmental charge payable in connection with these services and subject to any limitations or requirements provided in the eligible liabilities senior indenture (or any supplemental indenture thereto) or issuer order under which that series of eligible liabilities senior debt securities is issued.
Holders may transfer eligible liabilities senior debt securities in bearer form and/or the related coupons, if any, by delivery to the transferee.
If any of the eligible liabilities senior debt securities are held in global form, the procedures for transfer of interests in those eligible liabilities senior debt securities will depend upon the procedures of the depositary for those global securities. See “Forms of Securities.”
Impact of Significant Corporate Actions and Other Developments
Under German law, a surviving corporation in a merger or consolidation generally assumes the obligations of its predecessors. There are, however, no covenants in the eligible liabilities senior indenture or other provisions designed to protect holders of eligible liabilities senior debt securities against a reduction in our creditworthiness that would afford holders of eligible liabilities senior debt securities additional protection in the event of a recapitalization transaction, a change of control of the Bank, a merger or consolidation, a sale, lease or conveyance of all or substantially all of our assets or a highly leveraged transaction or any other transaction that might adversely affect holders of eligible liabilities senior debt securities.
It may be that we will depend increasingly upon the earnings and cash flow of our subsidiaries to meet our obligations under the eligible liabilities senior debt securities. Since the creditors of any of our subsidiaries would generally have a right to receive payment that is superior to our right to receive payment from the assets of that subsidiary, holders of eligible liabilities senior debt securities will be effectively subordinated to creditors of our subsidiaries. In addition, there are various regulatory requirements applicable to some of our subsidiaries that limit their ability to pay dividends and make loans and advances to us.
53
Table of Contents
Events of Default
An event of default is defined under the eligible liabilities senior indenture, with respect to any series of eligible liabilities senior debt securities issued under that indenture, as the opening of insolvency proceedings against us by a German court having jurisdiction over us. There are no other events of default under the eligible liabilities senior indenture.
Acceleration Upon Event of Default. The eligible liabilities senior indenture provides if an event of default occurs or is continuing, either the trustee or the holders of not less than 33 1/3% in aggregate principal amount of all outstanding eligible liabilities senior debt securities issued under the eligible liabilities senior indenture, voting as one class, by notice in writing to the Bank, may declare the principal of all outstanding eligible liabilities senior debt securities issued under the eligible liabilities senior indenture, and interest accrued thereon, to be due and payable immediately.
No Acceleration Upon Other Defaults. The eligible liabilities senior indenture provides that there is no right of acceleration in the case of a default in the payment of principal of, interest on, or other amounts owing under any series of eligible liabilities senior debt securities issued under the eligible liabilities senior indenture or a default in the performance of any of our other covenants under the eligible liabilities senior debt securities.
No Negative Pledge. The eligible liabilities senior indenture does not contain any restrictions preventing us from incurring additional debt or from securing any of our debt by a pledge, lien or other encumbrance on any of our assets.
Indemnification of Trustee for Actions Taken on Your Behalf. The eligible liabilities senior indenture provides that the trustee will not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of eligible liabilities senior debt securities issued under the eligible liabilities senior indenture relating to the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred upon the trustee. In addition, the eligible liabilities senior indenture contains a provision entitling the trustee, subject to the duty of the trustee to act with the required standard of care during a default, to be indemnified by the holders of eligible liabilities senior debt securities issued under that indenture before proceeding to exercise any right or power at the request of holders. Subject to these provisions and some other limitations, the holders of a majority in aggregate principal amount of each affected series of outstanding eligible liabilities senior debt securities, voting as one class, may direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee.
Limitation on Actions by You as an Individual Holder. The eligible liabilities senior indenture provides that no individual holder of eligible liabilities senior debt securities may institute any action against us under that indenture, except actions for payment of overdue principal and interest at maturity or upon acceleration unless the following actions have occurred:
| • | the holder must have previously given written notice to the trustee of the default (including any event of default) and the continuance thereof; |
| • | the holders of not less than a majority in aggregate principal amount of the outstanding eligible liabilities senior debt securities of each affected series, treated as one class, must have (1) requested the trustee to institute that action and (2) offered the trustee reasonable indemnity and/or security; |
| • | the trustee must have failed to institute that action within 60 days after receipt of the request referred to above; and |
| • | the holders of a majority in aggregate principal amount of the outstanding eligible liabilities senior debt securities of each affected series, treated as one class, must not have given directions to the trustee inconsistent with those of the holders referred to above. |
The eligible liabilities senior indenture contains a covenant that we will file annually with the trustee a certificate of no default or a certificate specifying any default that exists.
54
Table of Contents
Discharge
We may only discharge all of our obligations under the eligible liabilities senior indenture, other than as to transfers and exchanges, after we have:
| • | paid or caused to be paid the principal of and any interest or premium, if any, on all of the outstanding eligible liabilities senior debt securities issued thereunder in accordance with their terms; or |
| • | delivered to the trustee for cancellation all of the outstanding eligible liabilities senior debt securities issued thereunder. |
Office Substitution
We may issue series of eligible liabilities senior debt securities that permit us at any time, without the consent of the holders or the trustee, to designate our head office or another branch of ours (in this paragraph, we refer to each of our head office or any of our branches as an “office”) as substitute for the office through which we have acted to issue such series with the same effect as if such substitute office had been originally named as the office through which we had acted to issue such series for all purposes under the eligible liabilities senior indenture and such series. In order to give effect to such a substitution, we will give notice of the substitution to the trustee and the holders of such series of eligible liabilities senior debt securities. With effect from the substitution date, such substitute office will, without any amendment of such series of eligible liabilities senior debt securities or entry into any supplemental indenture, assume all of the obligations of the originally-named office as principal obligor under such series of eligible liabilities senior debt securities. The applicable pricing supplement will include a reference to office substitution if included as a term of a series of eligible liabilities senior debt securities.
Modification of the Eligible Liabilities Senior Indenture
Modification without Consent of Holders. We and the trustee may enter into supplemental eligible liabilities senior indentures without the consent of the holders of the eligible liabilities senior debt securities issued under the eligible liabilities senior indenture to:
| • | evidence the assumption by a successor corporation of our obligations; |
| • | add covenants for the protection of the holders of eligible liabilities senior debt securities; |
| • | cure any ambiguity or correct any inconsistency or manifest error, or to make any other provisions as we may deem necessary or desirable; |
| • | establish the forms or terms of eligible liabilities senior debt securities of any series; or |
| • | evidence the acceptance of appointment by a successor trustee; or |
| • | to give effect to any variation to the terms of the eligible liabilities senior debt securities as a result of the imposition of any Resolution Measure, |
provided, that any such modification is permitted by relevant laws and regulations and subject to approval by the competent supervisory or resolution authority, as applicable.
Modification Requiring Consent of Each Holder. We and the trustee may not make any of the following changes to any outstanding eligible liabilities senior debt security without the consent of each holder that would be affected by such change:
| • | change the final maturity of such eligible liabilities senior debt security; |
| • | reduce the principal amount; |
| • | reduce the rate or change the time of payment of interest; |
| • | reduce any amount payable on redemption; |
| • | change the currency in which the principal, including any amount of original issue discount, premium, and interest thereon are payable; |
| • | modify or amend the provisions for conversion of any currency into another currency; |
| • | reduce the amount of any original issue discount security provable in bankruptcy; |
55
Table of Contents
| • | alter certain provisions of the eligible liabilities senior indenture relating to eligible liabilities senior debt securities not denominated in U.S. dollars; |
| • | impair the right of any holder to institute suit for the enforcement of any payment on any security when due; or |
| • | reduce the percentage of eligible liabilities senior debt securities the consent of whose holders is required for modification of the eligible liabilities senior indenture, |
provided, that any such change is permitted by relevant laws and regulations and, if applicable, subject to approval by the competent supervisory or resolution authority.
Modification with Consent of Holders of a Majority. We and the trustee may make any other change to the eligible liabilities senior indenture and to the rights of the holders of the eligible liabilities senior debt securities issued thereunder, if we obtain the consent of the holders of not less than a majority in aggregate principal amount of all affected series of outstanding eligible liabilities senior debt securities issued thereunder, voting as one class provided, that any such change is permitted by relevant laws and regulations and subject to approval by the competent authority, as applicable.
Concerning Our Relationship with the Trustee
We and our subsidiaries maintain ordinary banking relationships and custodial facilities with the trustee and affiliates of the trustee.
Governing Law
The eligible liabilities senior indenture is, and the eligible liabilities senior debt securities will be, governed by and construed in accordance with the laws of the State of New York, except as may be otherwise required by mandatory provisions of law and except with respect to the provisions relating to the ranking of the eligible liabilities senior debt securities, which will be governed by and construed in accordance with German law, including, in relation to such provisions, any determination of whether a Resolution Measure has been imposed on us.
Senior Debt Securities
The Senior Indenture
We may issue senior debt securities, acting through our head office or through one of our branches. The senior debt securities offered pursuant to this prospectus will be issued in one or more series under, and will be governed by, the senior indenture, dated as of August 3, 2021 (as amended or supplemented from time to time), among us, as issuer, Delaware Trust Company, 251 Little Falls Drive, Wilmington, Delaware 19808, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, issuing agent, authenticating agent and registrar, as may be amended and supplemented from time to time.
The senior indenture is qualified under the Trust Indenture Act. Under the provisions of the Trust Indenture Act, if the same institution acts as trustee under the senior indenture and also as trustee under any other indenture under which securities of ours are issued, upon a default in any series of securities issued under either indenture, the trustee may be deemed to have a conflicting interest and may be required to resign and a successor trustee will be appointed. As of the date of this prospectus, Delaware Trust Company acts both as trustee under the senior indenture and as trustee under the indenture relating to our senior debt funding securities.
In this sub-section “Description of Debt Securities—Senior Debt Securities,” we refer to the trustee under the senior indenture, including any successor trustee, as the “trustee” with respect to that indenture and the senior debt securities issued under it. We refer to the senior indenture, as it may be supplemented from time to time, as the “senior indenture.”
We have summarized below the material provisions of the senior indenture and the senior debt securities, or indicated which material provisions will be described in the related prospectus supplement. These descriptions are only summaries and are qualified in their entirety by the senior indenture. The terms of the senior indenture will include both those stated in that indenture and those made part of that indenture by the Trust Indenture Act. The senior indenture and the supplements thereto are included as exhibits to the registration statement of which this prospectus forms a part, and you should read the senior indenture for provisions that may be important to you.
56
Table of Contents
We May Issue Different Series of Senior Debt Securities
The senior indenture does not limit the amount of indebtedness that may be issued. We may issue senior debt securities from time to time in one or more distinct series, at a price of 100% of their principal amount or at a premium or a discount. This section summarizes terms of the senior debt securities that apply generally to all series. The provisions of the senior indenture allow us not only to issue senior debt securities with terms different from those of senior debt securities previously issued under that indenture, but also to “reopen” a previously issued series of senior debt securities and issue additional senior debt securities of that series. The senior debt securities will not be secured by any property or assets of Deutsche Bank AG. We will describe many of the specific terms of the applicable series in the applicable prospectus supplement.
Ranking; Status
The senior debt securities (and in the case of senior debt securities in bearer form, any coupons to these securities) will constitute our unsecured and unsubordinated obligations ranking pari passu among themselves and pari passu with all of our other unsecured and unsubordinated obligations (including our obligations under our senior debt funding securities described elsewhere in this prospectus), subject, however, to statutory priorities conferred upon certain unsecured and unsubordinated obligations in the event of any Resolution Measures imposed on us or in the event of our dissolution, liquidation, insolvency or composition, or if other proceedings are opened for the avoidance of the insolvency of, or against, us; and pursuant to Section 46f(5) of the German Banking Act (Kreditwesengesetz), the obligations under the senior debt securities will rank in priority to our senior non-preferred obligations under (i) any of our debt instruments (Schuldtitel) within the meaning of Section 46f(6) sentence 1 of the German Banking Act (including the senior non-preferred obligations under any such debt instruments that we issued before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act) or any successor provision and (ii) eligible liabilities within the meaning of Articles 72a and 72b(2) CRR.
This order of priority will apply to our senior debt securities issued on or after July 21, 2018. Senior debt securities issued under the senior indenture prior to July 21, 2018 can constitute senior non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (including those that are subject to Section 46f(9) of the German Banking Act) or any successor provision. Any such outstanding senior debt securities would rank junior to senior debt securities issued on or after July 21, 2018, and pari passu with our eligible liabilities senior debt securities. For more information, please see the section “Description of Debt Securities—Eligible Liabilities Senior Debt Securities” above.
Resolution Measures
By acquiring any senior debt securities, you will be bound by and will be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority. As a result, you would have no claim or other right against us arising out of any Resolution Measure or increased losses incurred based on the order of priority under the German Banking Act. In addition, by your acquisition of senior debt securities, you waive, to the fullest extent permitted by the Trust Indenture Act and applicable law, any and all claims against the trustee for the senior debt securities and the paying agent, the registrar and the issuing agent (which we refer to as the “senior note agents” herein) for, agree not to initiate a suit against such trustee or the senior note agents in respect of, and agree that such trustee and the senior note agents will not be liable for, any action that such trustee or the senior note agents take, or abstain from taking, in either case in accordance with the imposition of a Resolution Measure by the competent resolution authority with respect to the senior debt securities. Accordingly, you may have limited or circumscribed rights to challenge any decision of the competent resolution authority to impose any Resolution Measure. For more information, please see the sections “Resolution Measures” and “Risk Factors” in this prospectus.
Payments on the Senior Debt Securities
Denomination and Currency. The senior debt securities may be denominated and payable in U.S. dollars or other currencies.
Fixed Rate and Floating Rate Senior Debt Securities. Senior debt securities may bear interest at a fixed rate or a floating rate, which, in either case, may be zero, or at a rate that varies during the lifetime of
57
Table of Contents
the senior debt securities. Senior debt securities bearing no interest or interest at a rate that at the time of issuance is below the prevailing market rate may be sold at a discount below their stated principal amount.
Linked or Exchangeable Senior Debt Securities. We may issue senior debt securities from time to time with the principal amount and/or interest payable on any relevant payment date to be determined by reference to the performance, level or value of one or more of the following: other securities issued by us, securities of any entity affiliated or unaffiliated with us, indices, currencies, commodities, interest rates, intangibles, articles, goods or any other property, any other financial, economic or other measures or instruments, including the occurrence or non-occurrence of any events or circumstances and/or a basket or baskets of any of these items. Holders of these types of senior debt securities will receive payments of principal and/or interest (if any) that are determined by reference to the applicable underlying instrument or measurement. Such senior debt securities may provide either for cash settlement or for physical settlement by delivery of the applicable underlying property or other property of the type listed above. Such senior debt securities may also provide that the form of settlement may be determined at our option or at your option.
We may issue senior debt securities that are exchangeable, either mandatorily or at our or the holder’s option, into securities of ours or entities that are or are not affiliated with us, a basket or baskets of those securities, other property, or any combination of, or the cash value of, such securities or other property.
Terms Specified in Prospectus Supplement
The prospectus supplement will contain, where applicable, the following terms of and other information relating to any of the senior debt securities we are offering:
| • | whether the senior debt securities will be issued by Deutsche Bank AG, acting through its head office or through one of its branches; |
| • | the specific designation; |
| • | whether we are permitted to substitute the office through which we are acting for all purposes under the senior debt securities; |
| • | the aggregate principal amount, purchase price and denomination; |
| • | the currency in which the senior debt securities are denominated and/or in which principal, and premium, if any, and/or interest, if any, are payable; |
| • | the date of maturity (and any provisions relating to extending or shortening the maturity date); |
| • | the interest rate or rates or the method by which the calculation agent (identified in the prospectus supplement) will determine the interest rate or rates, if any; |
| • | the date from which interest accrues and the interest payment dates, if any; |
| • | the place or places for payment of the principal of and any premium, if any, and/or interest, if any, on the senior debt securities; |
| • | any repayment, redemption, prepayment or sinking fund provisions, including any redemption notice provisions; |
| • | if other than the principal amount thereof, the portion of the principal amount of the senior debt securities payable upon declaration of acceleration of maturity thereof; |
| • | whether we will issue the senior debt securities in registered form or bearer form or both and, if we are offering senior debt securities in bearer form, any restrictions applicable to the exchange of one form for another and to the offer, sale and delivery of those senior debt securities in bearer form; |
| • | whether we will issue the senior debt securities in global (i.e., book-entry) or definitive (i.e., certificated) form and under what terms and conditions; |
| • | whether the senior debt securities are convertible or exchangeable securities and the terms on which holders of the senior debt securities may exchange them into or for securities of other entities unaffiliated with us or other property, or the cash value thereof, and the specific terms of and period in which such conversion or exchange may be made (other than, in each case, any securities of financial sector entities that constitute own funds instruments or eligible liabilities); |
58
Table of Contents
| • | if the amount of principal, premium, if any, and/or interest payable on any date may be determined with respect to any currencies, commodities or securities of us or other entities, the basket or baskets of those currencies, commodities or securities, or the index or indices of those currencies, commodities or securities, or interest rates, or intangibles, articles, goods or any other property, or any other financial or economic or other measures or instruments, including the occurrence or non-occurrence of any events or circumstances, the manner in which such amounts will be determined; |
| • | the identity of any agents for the senior debt securities, including the trustee, depositaries, authenticating or paying agents, transfer agents, registrars, determination or other agents; |
| • | the proposed listing, if any, of the senior debt securities on any securities exchange; |
| • | whether the senior debt securities are to be sold separately or with other securities as part of units; |
| • | any other events of default, or any deletions from, additions to or modifications of the covenants of the Issuer set forth herein with respect to the senior debt securities; and |
| • | any other specific terms of the senior debt securities and any terms required by or advisable under applicable laws or regulations. |
The prospectus supplement relating to any series of senior debt securities may also include, if applicable, a discussion of certain U.S. federal income tax considerations, certain German income tax consequences, certain income tax consequences due to the jurisdiction of any relevant issuing branch and certain considerations under ERISA, in each case in relation to an investment in the senior debt securities.
Registration and Transfer of Senior Debt Securities
Holders may present senior debt securities for exchange and transfer (except bearer securities) in the manner, at the places and subject to the restrictions stated in the senior debt securities and described in the applicable prospectus supplement. We will provide these services without charge except for any tax or other governmental charge payable in connection with these services and subject to any limitations or requirements provided in the senior indenture (or any supplemental indenture thereto) or issuer order under which that series of senior debt securities is issued.
Holders may transfer senior debt securities in bearer form and/or the related coupons, if any, by delivery to the transferee.
If any of the senior debt securities are held in global form, the procedures for transfer of interests in those senior debt securities will depend upon the procedures of the depositary for those global securities. See “Forms of Securities.”
Impact of Significant Corporate Actions and Other Developments
Under German law, a surviving corporation in a merger or consolidation generally assumes the obligations of its predecessors. There are, however, no covenants in the senior indenture or other provisions designed to protect holders of senior debt securities against a reduction in our creditworthiness that would afford holders of senior debt securities additional protection in the event of a recapitalization transaction, a change of control of the Bank, a merger or consolidation, a sale, lease or conveyance of all or substantially all of our assets or a highly leveraged transaction or any other transaction that might adversely affect holders of senior debt securities.
It may be that we will depend increasingly upon the earnings and cash flow of our subsidiaries to meet our obligations under the senior debt securities. Since the creditors of any of our subsidiaries would generally have a right to receive payment that is superior to our right to receive payment from the assets of that subsidiary, holders of senior debt securities will be effectively subordinated to creditors of our subsidiaries. In addition, there are various regulatory requirements applicable to some of our subsidiaries that limit their ability to pay dividends and make loans and advances to us.
Events of Default
The senior indenture provides holders of senior debt securities with remedies if we fail to perform specific obligations, such as making payments on the senior debt securities, or if we become bankrupt. Holders should review these provisions and understand which of our actions trigger an
59
Table of Contents
event of default and which actions do not. The senior indenture permits the issuance of senior debt securities in one or more series, and, in many cases, whether an event of default has occurred is determined on a series by series basis.
An event of default is defined under the senior indenture, with respect to any series of senior debt securities issued under that indenture, as any one or more of the following events having occurred and being continuing:
| • | default is made in the payment of principal, interest or premium in respect of such series of senior debt securities for 30 days; |
| • | we fail to perform or observe any of our other obligations under the senior debt securities and such failure has continued for the period of 60 days following the service on us of notice by the trustee or holders of not less than 33 1/3% in aggregate principal amount of the senior debt securities of all series affected thereby requiring the same to be remedied, except that the failure to file with the trustee certain information required to be filed with the trustee pursuant to the Trust Indenture Act, will not constitute an event of default (although the trustee may bring suit to enforce such filing obligation); or |
| • | a court in Germany opens insolvency proceedings against us or we apply for or institute such proceedings or offer or make an arrangement for the benefit or our creditors generally. |
Any additional or different events of default applicable to a particular series of senior debt securities issued under the senior indenture will be described in the prospectus supplement relating to such series.
No Negative Pledge. The senior indenture does not contain any restrictions preventing us from incurring additional debt or from securing any of our debt by a pledge, lien or other encumbrance on any of our assets.
Acceleration of Senior Debt Securities Upon an Event of Default. The senior indenture provides that:
| • | if an event of default due to the default in payment of principal, interest or premium in respect of any series of senior debt securities issued under the senior indenture, or due to the default in the performance or breach of any other covenant or warranty of the Bank applicable to less than all outstanding series of senior debt securities issued under the senior indenture occurs and is continuing, other than a covenant for which the senior indenture specifies that the violation thereof does not give a right to accelerate or declare due and payable any securities issued under the senior indenture, either the trustee or the holders of not less than 33 1/3% in aggregate principal amount of the outstanding senior debt securities of all affected series, voting as one class, by notice in writing to the Bank, may declare the principal of all senior debt securities of each affected series and interest accrued thereon to be due and payable immediately; and |
| • | if an event of default due to a default in the performance of any other of the covenants or agreements in the senior indenture applicable to all outstanding senior debt securities issued under the senior indenture or due to the specified events of bankruptcy, insolvency or reorganization of the Bank, occurs and is continuing, other than a covenant for which the senior indenture specifies that the violation thereof does not give a right to accelerate or declare due and payable any senior debt securities issued under the senior indenture, either the trustee or the holders of not less than 33 1/3% in aggregate principal amount of all outstanding senior debt securities issued under the senior indenture, voting as one class, by notice in writing to the Bank, may declare the principal of all senior debt securities and interest accrued thereon to be due and payable immediately. |
Annulment of Acceleration and Waiver of Defaults. In some circumstances, if any and all events of default under the senior indenture, other than the non-payment of the principal of the senior debt securities that has become due as a result of an acceleration, have been cured, waived or otherwise remedied, then the holders of a majority in aggregate principal amount of all series of outstanding senior debt securities affected, voting as one class, may annul past declarations of acceleration of or waive past defaults of the senior debt securities.
Indemnification of Trustee for Actions Taken on Your Behalf. The senior indenture provides that the trustee will not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of senior debt securities issued under the senior indenture relating to the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred upon the trustee. In addition, the
60
Table of Contents
senior indenture contains a provision entitling the trustee, subject to the duty of the trustee to act with the required standard of care during a default, to be indemnified by the holders of senior debt securities issued under that indenture before proceeding to exercise any right or power at the request of holders. Subject to these provisions and some other limitations, the holders of a majority in aggregate principal amount of each affected series of outstanding senior debt securities, voting as one class, may direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee.
Limitation on Actions by You as an Individual Holder. The senior indenture provides that no individual holder of senior debt securities may institute any action against us under that indenture, except actions for payment of overdue principal and interest at maturity or upon acceleration unless the following actions have occurred:
| • | the holder must have previously given written notice to the trustee of the continuing default; |
| • | the holders of not less than a majority in aggregate principal amount of the outstanding senior debt securities of each affected series, treated as one class, must have (1) requested the trustee to institute that action and (2) offered the trustee reasonable indemnity; |
| • | the trustee must have failed to institute that action within 60 days after receipt of the request referred to above; and |
| • | the holders of a majority in aggregate principal amount of the outstanding senior debt securities of each affected series, treated as one class, must not have given directions to the trustee inconsistent with those of the holders referred to above. |
The senior indenture contains a covenant that we will file annually with the trustee a certificate of no default or a certificate specifying any default that exists.
Discharge and Defeasance
We have the ability to eliminate most or all of our obligations on any series of senior debt securities prior to maturity if we comply with the following provisions.
Discharge of Senior Indenture. We may discharge all of our obligations, other than as to transfers and exchanges, after we have:
| • | paid or caused to be paid the principal of and any interest or premium, if any, on all of the outstanding senior debt securities issued thereunder in accordance with their terms; |
| • | delivered to the trustee for cancellation all of the outstanding senior debt securities issued thereunder; or |
| • | if in the case of any series of senior debt securities on which the exact amount (including the currency of payment) of principal and any interest or premium, if any, due can be determined at the time of making the deposit referred to below, and which shall have become due or payable, or are by their terms to become due and payable or are scheduled for redemption, within one year, we have irrevocably deposited with the trustee, cash or, in the case of a series of senior debt securities payable only in U.S. dollars, U.S. government obligations, in trust for the benefit of the holders of securities of such series, in an amount certified to be sufficient to pay on each date that they become due and payable, the principal of and any interest or premium, if any, on, and any mandatory sinking fund payments for, those securities. |
Defeasance of a Series of Securities at Any Time. We may also discharge all of our obligations, other than as to transfers and exchanges, under any series of senior debt securities at any time, which we refer to as “defeasance.”
Defeasance may be effected only if, among other things:
| • | we irrevocably deposit with the trustee cash or, in the case of senior debt securities payable only in U.S. dollars, U.S. government obligations, in trust for the benefit of the holders of senior debt securities of such series, in an amount certified to be sufficient to pay on each date that they become due and payable, the principal of and any interest or premium, if any, on, and any mandatory sinking fund payments for, all outstanding senior debt securities of the series being defeased; |
| • | such deposit will not result in a breach or violation of, or constitute a default under, any agreement or instrument to which we are is a party or by which we are bound; |
61
Table of Contents
| • | we deliver to the trustee an opinion of counsel based on the fact that (x) we have received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date hereof, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and such opinion shall confirm that, the beneficial owners of the Securities of such series and Coupons appertaining thereto will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred; and |
| • | we have has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, as defined in the senior indenture, each stating that all conditions precedent provided for relating to the defeasance contemplated by this provision have been complied with. |
Office Substitution
We may issue series of senior debt securities that permit us at any time, without the consent of the holders or the trustee, to designate our head office or another branch of ours (in this paragraph, we refer to each of our head office or any of our branches as an “office”) as substitute for the office through which we have acted to issue such series with the same effect as if such substitute office had been originally named as the office through which we had acted to issue such series for all purposes under the senior indenture and such series. In order to give effect to such a substitution, we will give notice of the substitution to the trustee and the holders of such series of senior debt securities. With effect from the substitution date, such substitute office will, without any amendment of such series of senior debt securities or entry into any supplemental indenture, assume all of the obligations of the originally-named office as principal obligor under such series of senior debt securities. The applicable pricing supplement will include a reference to office substitution if included as a term of a series of senior debt securities.
Modification of the Senior Indenture
Modification without Consent of Holders. We and the trustee may enter into supplemental senior indentures without the consent of the holders of senior debt securities issued under the senior indenture to:
| • | convey, transfer, assign, mortgage or pledge to the trustee as security for the senior debt securities of one or more series any property or assets; |
| • | evidence the assumption by a successor corporation of our obligations; |
| • | add covenants for the protection of the holders of senior debt securities; |
| • | cure any ambiguity or correct any inconsistency or manifest error; |
| • | establish the forms or terms of senior debt securities of any series; |
| • | evidence the acceptance of appointment by a successor trustee; or |
| • | to give effect to any variation to the terms of the senior debt securities as a result of the impositions of any Resolution Measure. |
Modification Requiring Consent of Each Holder. We and the trustee may not make any of the following changes to any outstanding senior debt security without the consent of each holder that would be affected by such change:
| • | change the final maturity of such senior debt security; |
| • | reduce the principal amount; |
| • | reduce the rate or change the time of payment of interest; |
| • | reduce any amount payable on redemption; |
| • | change the currency in which the principal, including any amount of original issue discount, premium, or interest thereon are payable; |
| • | modify or amend the provisions for conversion of any currency into another currency; |
| • | reduce the amount of any original issue discount security payable upon acceleration or provable in bankruptcy; |
| • | alter the terms on which holders of the senior debt securities may convert or exchange those senior debt securities for securities of other entities unaffiliated with us or for other property or |
62
Table of Contents
| the cash value thereof, other than in accordance with the antidilution provisions or other similar adjustment provisions included in the terms of the senior debt securities and other than, in each case, any securities of financial sector entities that constitute own funds instruments or eligible liabilities; |
| • | alter certain provisions of the senior indenture relating to senior debt securities not denominated in U.S. dollars; |
| • | impair the right of any holder to institute suit for the enforcement of any payment on any senior debt security when due; or |
| • | reduce the percentage of senior debt securities the consent of whose holders is required for modification of the senior indenture. |
Modification with Consent of Holders of a Majority. We and the trustee may make any other change to the senior indenture and to the rights of the holders of the senior debt securities issued thereunder, if we obtain the consent of the holders of not less than a majority in aggregate principal amount of all affected series of outstanding senior debt securities issued thereunder, voting as one class.
Concerning Our Relationship with the Trustee
We and our subsidiaries maintain ordinary banking relationships and custodial facilities with the trustee and affiliates of the trustee.
Governing Law
The senior indenture is, and the senior debt securities will be, governed by and construed in accordance with the laws of the State of New York, except as may be otherwise required by mandatory provisions of law.
Senior Debt Funding Securities
The Senior Debt Funding Indenture
We may issue senior debt funding securities, acting through our head office or through one of our branches. The senior debt funding securities offered pursuant to this prospectus will be issued in one or more series under, and will be governed by, the senior debt funding indenture, dated as of August 3, 2021 (as amended or supplemented from time to time), among us, as issuer, Delaware Trust Company, 251 Little Falls Drive, Wilmington, Delaware 19808, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, authenticating agent, issuing agent and registrar, as may be amended and supplemented from time to time.
The senior debt funding indenture will be qualified under the Trust Indenture Act. Under the provisions of the Trust Indenture Act, if the same institution acts as trustee under the senior debt funding indenture and also as trustee under any other indenture under which securities of ours are issued, upon a default in any series of securities issued under either indenture, the trustee may be deemed to have a conflicting interest and may be required to resign and a successor trustee will be appointed. As of the date of this prospectus, Delaware Trust Company acts both as trustee under the senior debt funding indenture and as trustee under the senior indenture.
In this sub-section “Description of Debt Securities—Senior Debt Funding Securities,” we refer to the trustee under the senior debt funding indenture, including any successor trustee, as the “trustee” with respect to that indenture and the senior debt funding securities issued under it. We refer to the senior debt funding indenture, as it may be supplemented from time to time, as the “senior debt funding indenture.”
We have summarized below the material provisions of the senior debt funding indenture and the senior debt funding securities, or indicated which material provisions will be described in the related prospectus supplement. These descriptions are only summaries and are qualified in their entirety by the senior debt funding indenture. The terms of the senior debt funding indenture will include both those stated in that indenture and those made part of that indenture by the Trust Indenture Act. The senior debt funding indenture is included as an exhibit to the registration statement of which this prospectus forms a part, and you should read the senior debt funding indenture for provisions that may be important to you.
63
Table of Contents
We May Issue Different Series of Senior Debt Funding Securities
The senior debt funding indenture does not limit the amount of senior debt funding securities that may be issued. We may issue senior debt funding securities from time to time in one or more distinct series, at a price of 100% of their principal amount or at a premium or a discount. This section summarizes terms of the senior debt funding securities that apply generally to all series. The provisions of the senior debt funding indenture allow us not only to issue senior debt funding securities with terms different from those of the senior debt funding securities previously issued under that indenture, but also to “reopen” a previously issued series of senior debt funding securities and issue additional senior debt funding securities of that series. The senior debt funding securities will not be secured by any property or assets of Deutsche Bank AG. We will describe many of the specific terms of the applicable series in the applicable prospectus supplement.
Ranking; Status
The senior debt funding securities (and in the case of senior debt funding securities in bearer form, any coupons to these securities) will constitute our unsecured and unsubordinated obligations ranking pari passu among themselves and pari passu with all of our other unsecured and unsubordinated obligations (including our obligations under our senior debt securities described elsewhere in this prospectus), subject, however, to statutory priorities conferred upon certain unsecured and unsubordinated obligations in the event of any Resolution Measures imposed on us or in the event of our dissolution, liquidation, insolvency or composition, or if other proceedings are opened for the avoidance of the insolvency of, or against, us; and pursuant to Section 46f(5) of the German Banking Act (Kreditwesengesetz), the obligations under the senior debt funding securities will rank in priority to our senior non-preferred obligations under any of our debt instruments (Schuldtitel) within the meaning of Section 46f(6) sentence 1 of the German Banking Act (including the senior non-preferred obligations under any such debt instruments that we issued before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act) or any successor provision, including eligible liabilities within the meaning of Articles 72a and 72b(2) CRR.
Resolution Measures
By acquiring any senior debt funding securities, you will be bound by and will be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority. As a result, you would have no claim or other right against us arising out of any Resolution Measure or increased losses incurred based on the order of priority under the German Banking Act. In addition, by your acquisition of senior debt funding securities, you waive, to the fullest extent permitted by the Trust Indenture Act and applicable law, any and all claims against the trustee for the senior debt funding securities and the paying agent, the authenticating agent, the issuing agent and the registrar (which we refer to as the “senior debt funding note agents” herein) for, agree not to initiate a suit against such trustee or the senior debt funding note agents in respect of, and agree that such trustee and the senior debt funding note agents will not be liable for, any action that such trustee or the senior debt funding note agents take, or abstain from taking, in either case in accordance with the imposition of a Resolution Measure by the competent resolution authority with respect to the senior debt funding securities. Accordingly, you may have limited or circumscribed rights to challenge any decision of the competent resolution authority to impose any Resolution Measure. For more information, please see the sections “Resolution Measures” and “Risk Factors” in this prospectus.
Qualification as “Eligible Liabilities”
The senior debt funding securities are intended to qualify as eligible liabilities instruments for the minimum requirement for own funds and eligible liabilities as described and provided for in the bank regulatory capital provisions to which we are subject, including restrictions on the aggregate amount of similar instruments that we may use for such purposes, but do not constitute senior non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act.
No Enhancement; No Set-off; No Security; Early Redemption
The senior debt funding indenture provides that:
| • | no subsequent agreement may enhance the seniority of our obligations under the senior debt funding securities or shorten the term of any of the senior debt funding securities or any applicable notice period; |
64
Table of Contents
| • | no holder of the senior debt funding securities may set off or net its claims arising under such senior debt funding securities against any claims of ours; |
| • | no collateral or guarantee will be provided at any time to secure the claims of the holders under the senior debt funding securities; any collateral or guarantee already provided or granted in the future in connection with other liabilities of ours may not be used for claims under the senior debt funding securities; and |
| • | any redemption of any series of senior debt funding securities prior to their scheduled maturity will be subject to (i) receipt by the Bank of prior approval of the competent resolution authority, and (ii) compliance with any other regulatory requirements. If the senior debt funding securities are redeemed by us without the approval of such competent resolution authority, then the amounts paid on the senior debt funding securities must be returned to us irrespective of any agreement to the contrary. |
If we fail to make payment on the senior debt funding securities when due, we will be in default on our obligations under the senior debt funding indenture. In such case, the trustee and the holders of senior debt funding securities could take action against us, but they may not accelerate the maturity of the senior debt funding securities.
Payments on the Senior Debt Funding Securities
Denomination and Currency. Unless otherwise specified in the applicable pricing supplement, the senior debt funding securities will be denominated and payable in U.S. dollars.
Fixed Rate and Floating Rate Senior Debt Funding Securities. The senior debt funding securities may bear interest at a fixed rate or a floating rate, which, in either case, may be zero, or at a rate that varies during the lifetime of the senior debt funding securities. The senior debt funding securities bearing no interest or interest at a rate that at the time of issuance is below the prevailing market rate may be sold at a discount below their stated principal amount.
Terms Specified in Prospectus Supplement
The prospectus supplement will contain, where applicable, the following terms of and other information relating to any of the senior debt funding securities we are offering:
| • | whether the senior debt funding securities will be issued by Deutsche Bank AG, acting through its head office or through one of its branches; |
| • | the specific designation; |
| • | the qualification of the senior debt funding securities as eligible liabilities for bank regulatory purposes; |
| • | whether we are permitted to substitute the office through which we are acting for all purposes under the senior debt funding securities; |
| • | the aggregate principal amount, purchase price and denomination; |
| • | the currency, if other than U.S. dollars, in which the senior debt funding securities are denominated and/or in which principal, and premium, if any, and interest, if any, are payable; |
| • | the date of maturity (and any provisions relating to postponing or shortening the maturity date to account for days that are not business days); |
| • | the interest rate or rates or the method by which the calculation agent (identified in the prospectus supplement) will determine the interest rate or rates, if any; |
| • | the date from which interest accrues and the interest payment dates, if any; |
| • | the place or places for payment of the principal of and any premium, if any, and/or interest, if any, on the senior debt funding securities; |
| • | any redemption provisions, including any redemption notice provisions; |
| • | whether we will issue the senior debt funding securities in registered form or bearer form or both and, if we are offering senior debt funding securities in bearer form, any restrictions applicable to the exchange of one form for another and to the offer, sale and delivery of those senior debt funding securities in bearer form; |
65
Table of Contents
| • | whether we will issue the senior debt funding securities in global (i.e., book-entry) or definitive (i.e., certificated) form and under what terms and conditions; |
| • | the identity of any agents for the senior debt funding securities, including the trustee, depositaries, authenticating or paying agents, transfer agents, registrars, determination or other agents; |
| • | the proposed listing, if any, of the senior debt funding securities on any securities exchange; |
| • | any deletions from, additions to or modifications of our covenants set forth herein with respect to the senior debt funding securities; and |
| • | any other specific terms of the senior debt funding securities and any terms required by or advisable under applicable laws or regulations |
The prospectus supplement relating to any series of senior debt funding securities may also include, if applicable, a discussion of certain U.S. federal income tax considerations, certain German income tax consequences, certain income tax consequences due to the jurisdiction of any relevant issuing branch and certain considerations under ERISA, in each case in relation to an investment in the senior debt funding securities.
Registration and Transfer of Senior Debt Funding Securities
Holders may present senior debt funding securities for exchange and transfer (except bearer securities) in the manner, at the places and subject to the restrictions stated in the senior debt funding securities and described in the applicable prospectus supplement. We will provide these services without charge except for any tax or other governmental charge payable in connection with these services and subject to any limitations or requirements provided in the senior debt funding indenture (or any supplemental indenture thereto) or issuer order under which that series of senior debt funding securities is issued.
Holders may transfer senior debt funding securities in bearer form and/or the related coupons, if any, by delivery to the transferee.
If any of the senior debt funding securities are held in global form, the procedures for transfer of interests in those senior debt funding securities will depend upon the procedures of the depositary for those global securities. See “Forms of Securities.”
Impact of Significant Corporate Actions and Other Developments
Under German law, a surviving corporation in a merger or consolidation generally assumes the obligations of its predecessors. There are, however, no covenants in the senior debt funding indenture or other provisions designed to protect holders of senior debt funding securities against a reduction in our creditworthiness that would afford holders of senior debt funding securities additional protection in the event of a recapitalization transaction, a change of control of the Bank, a merger or consolidation, a sale, lease or conveyance of all or substantially all of our assets or a highly leveraged transaction or any other transaction that might adversely affect holders of senior debt funding securities.
It may be that we will depend increasingly upon the earnings and cash flow of our subsidiaries to meet our obligations under the senior debt funding securities. Since the creditors of any of our subsidiaries would generally have a right to receive payment that is superior to our right to receive payment from the assets of that subsidiary, holders of senior debt funding securities will be effectively subordinated to creditors of our subsidiaries. In addition, there are various regulatory requirements applicable to some of our subsidiaries that limit their ability to pay dividends and make loans and advances to us.
Events of Default
An event of default is defined under the senior debt funding indenture, with respect to any series of senior debt funding securities issued under that indenture, as the opening of insolvency proceedings against us by a German court having jurisdiction over us. There are no other events of default under the senior debt funding indenture.
Acceleration Upon Event of Default. The senior debt funding indenture provides if an event of default occurs or is continuing, either the trustee or the holders of not less than 33 1/3% in aggregate principal amount of all outstanding senior debt funding securities issued under the senior debt funding indenture, voting as one class, by notice in writing to the Bank, may declare the principal of all
66
Table of Contents
outstanding senior debt funding securities issued under the senior debt funding indenture, and interest accrued thereon, to be due and payable immediately.
No Acceleration Upon Other Defaults. The senior debt funding indenture provides that there is no right of acceleration in the case of a default in the payment of principal of, interest on, or other amounts owing under any series of senior debt funding securities issued under the senior debt funding indenture or a default in the performance of any of our other covenants under the senior debt funding securities.
No Negative Pledge. The senior debt funding indenture does not contain any restrictions preventing us from incurring additional debt or from securing any of our debt by a pledge, lien or other encumbrance on any of our assets.
Indemnification of Trustee for Actions Taken on Your Behalf. The senior debt funding indenture provides that the trustee will not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of senior debt funding securities issued under the senior debt funding indenture relating to the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred upon the trustee. In addition, the senior debt funding indenture contains a provision entitling the trustee, subject to the duty of the trustee to act with the required standard of care during a default, to be indemnified by the holders of senior debt funding securities issued under that indenture before proceeding to exercise any right or power at the request of holders. Subject to these provisions and some other limitations, the holders of a majority in aggregate principal amount of each affected series of outstanding senior debt funding securities, voting as one class, may direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee.
Limitation on Actions by You as an Individual Holder. The senior debt funding indenture provides that no individual holder of senior debt funding securities may institute any action against us under that indenture, except actions for payment of overdue principal and interest at maturity or upon acceleration unless the following actions have occurred:
| • | the holder must have previously given written notice to the trustee of the default (including any event of default) and the continuance thereof; |
| • | the holders of not less than a majority in aggregate principal amount of the outstanding senior debt funding securities of each affected series, treated as one class, must have (1) requested the trustee to institute that action and (2) offered the trustee reasonable indemnity and/or security; |
| • | the trustee must have failed to institute that action within 60 days after receipt of the request referred to above; and |
| • | the holders of a majority in aggregate principal amount of the outstanding senior debt funding securities of each affected series, treated as one class, must not have given directions to the trustee inconsistent with those of the holders referred to above. |
The senior debt funding indenture contains a covenant that we will file annually with the trustee a certificate of no default or a certificate specifying any default that exists.
Discharge
We may only discharge all of our obligations under the senior debt funding indenture, other than as to transfers and exchanges, after we have:
| • | paid or caused to be paid the principal of and any interest or premium, if any, on all of the outstanding senior debt funding securities issued thereunder in accordance with their terms; or |
| • | delivered to the trustee for cancellation all of the outstanding senior debt funding securities issued thereunder. |
Office Substitution
We may issue series of senior debt funding securities that permit us at any time, without the consent of the holders or the trustee, to designate our head office or another branch of ours (in this paragraph, we refer to each of our head office or any of our branches as an “office”) as substitute for the office through which we have acted to issue such series with the same effect as if such substitute office had been originally named as the office through which we had acted to issue such series for all purposes under the senior debt funding indenture and such series. In order to give effect to such a
67
Table of Contents
substitution, we will give notice of the substitution to the trustee and the holders of such series of senior debt funding securities. With effect from the substitution date, such substitute office will, without any amendment of such series of senior debt funding securities or entry into any supplemental indenture, assume all of the obligations of the originally-named office as principal obligor under such series of senior debt funding securities. The applicable pricing supplement will include a reference to office substitution if included as a term of a series of senior debt funding securities.
Modification of the Senior Debt Funding Indenture
Modification without Consent of Holders. We and the trustee may enter into supplemental senior debt funding indentures without the consent of the holders of the senior debt funding securities issued under the senior debt funding indenture to:
| • | evidence the assumption by a successor corporation of our obligations; |
| • | add covenants for the protection of the holders of senior debt funding securities; |
| • | cure any ambiguity or correct any inconsistency or manifest error; |
| • | establish the forms or terms of senior debt funding securities of any series; or |
| • | evidence the acceptance of appointment by a successor trustee; or |
| • | to give effect to any variation to the terms of the senior debt funding securities as a result of the imposition of any Resolution Measure, |
provided, that any such modification is permitted by relevant laws and regulations and subject to approval by the competent supervisory or resolution authority, as applicable.
Modification Requiring Consent of Each Holder. We and the trustee may not make any of the following changes to any outstanding senior debt funding security without the consent of each holder that would be affected by such change:
| • | change the final maturity of such senior debt funding security; |
| • | reduce the principal amount; |
| • | reduce the rate or change the time of payment of interest; |
| • | reduce any amount payable on redemption; |
| • | change the currency in which the principal, including any amount of original issue discount, premium, and interest thereon are payable; |
| • | modify or amend the provisions for conversion of any currency into another currency; |
| • | reduce the amount of any original issue discount security provable in bankruptcy; |
| • | alter certain provisions of the senior debt funding indenture relating to senior debt funding securities not denominated in U.S. dollars; |
| • | impair the right of any holder to institute suit for the enforcement of any payment on any security when due; or |
| • | reduce the percentage of senior debt funding securities the consent of whose holders is required for modification of the senior debt funding indenture, |
provided, that any such change is permitted by relevant laws and regulations and, if applicable, subject to approval by the competent supervisory or resolution authority.
Modification with Consent of Holders of a Majority. We and the trustee may make any other change to the senior debt funding indenture and to the rights of the holders of the senior debt funding securities issued thereunder, if we obtain the consent of the holders of not less than a majority in aggregate principal amount of all affected series of outstanding senior debt funding securities issued thereunder, voting as one class provided, that any such change is permitted by relevant laws and regulations and subject to approval by the competent authority, as applicable.
Concerning Our Relationship with the Trustee
We and our subsidiaries maintain ordinary banking relationships and custodial facilities with the trustee and affiliates of the trustee.
68
Table of Contents
Governing Law
The senior debt funding indenture is, and the senior debt funding securities will be, governed by and construed in accordance with the laws of the State of New York, except as may be otherwise required by mandatory provisions of law and except with respect to the provisions relating to the ranking of the senior debt funding securities, which will be governed by and construed in accordance with German law, including, in relation to such provisions, any determination of whether a Resolution Measure has been imposed on us.
69
Table of Contents
We may offer warrants separately or together with one or more additional warrants, ordinary shares, tradable subscription rights to subscribe for our ordinary shares, purchase contracts, capital securities and debt securities issued by us or debt obligations or other securities of an entity affiliated or not affiliated with us or any combination of those securities in the form of units, as described in the applicable prospectus supplement. The warrants offered pursuant to this prospectus will be issued pursuant to the warrant agreement, dated as of November 15, 2007, between us and Deutsche Bank Trust Company Americas as warrant agent, as amended by the first amendment to the warrant agreement, dated as of January 1, 2015, the second amendment to the warrant agreement, dated as of January 1, 2016, the third amendment to the warrant agreement, dated as of July 21, 2018, and as may be further amended and supplemented from time to time. If we issue warrants as part of a unit, the accompanying prospectus supplement will specify whether those warrants may be separated from the other securities in the unit prior to the warrants’ expiration date. Warrants to purchase or sell securities of entities not affiliated with us issued in the United States may not be so separated prior to the 91st day after the issuance of the unit, unless otherwise specified in the applicable prospectus supplement.
We may issue warrants, on terms to be determined at the time of sale, for the purchase or sale of, or whose redemption value is determined by reference to the performance, level or value of one or more of the following: securities issued by us or by an entity affiliated or not affiliated with us, indices, currencies, commodities, interest rates, any other financial, economic or other measures or instruments, including the occurrence or non-occurrence of any events or circumstances and/or a basket or baskets of any of these items.
We refer to the items described above as “warrant property.” We may satisfy our obligations, if any, with respect to any warrants by delivering the warrant property, the cash value of the warrant property or the cash value of the warrants determined by reference to the performance, level or value of the warrant property, all as described in the applicable prospectus supplement.
The warrants are our unsecured contractual obligations and will rank equally and pari passu with our other unsecured contractual obligations and with our unsecured and unsubordinated debt obligations, subject to any statutory priority regime of the jurisdiction of our incorporation (or, in the case of warrants issued by Deutsche Bank AG acting through a branch, of the jurisdiction where the branch is established) that provides certain claims will be satisfied first in a resolution or German insolvency proceeding with respect to us. In connection with the application of the order of priority under the German Banking Act, in a German insolvency proceeding or in the event of the imposition of Resolution Measures with respect to us, the warrants are expected to be among our unsecured unsubordinated obligations that would bear losses after our unsecured and unsubordinated non-preferred obligations under debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act such as the eligible liabilities senior debt securities (including the obligations under any such debt instruments that were issued by us before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act).
Unless otherwise specified in the relevant pricing supplement, by acquiring any warrants issued on or after January 1, 2015, you will be bound by and will be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority. As a result, you would have no claim or other right against us arising out of any Resolution Measure. In addition, by your acquisition of the warrants, you waive, to the fullest extent permitted by applicable law, any and all claims against the warrant agent for, agree not to initiate a suit against the warrant agent in respect of, and agree that the warrant agent will not be liable for, any action that the warrant agent 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 warrants. Accordingly, you may have limited or circumscribed rights to challenge any decision of the competent resolution authority to impose any Resolution Measure. For more information, please see the sections “Resolution Measures” and “Risk Factors” in this prospectus.
We may issue warrants, acting through our head office or through one of our branches. Deutsche Bank AG as a whole is responsible for the obligations of its branches. Where, however, Deutsche Bank AG is delayed in performing or is unable, whether in whole or in part, to perform the obligations of the branch that issued any warrants through such branch due to any law, requirement or any other act of state or of any authority in the jurisdiction of such branch, investors may be unable to seek
70
Table of Contents
performance of such obligations through any of Deutsche Bank’s other branches or offices (including its head office).
Terms Specified in Prospectus Supplement
The prospectus supplement will contain, where applicable, the following terms of and other information relating to any offered warrants:
| • | the specific designation; |
| • | whether we are permitted to substitute the office through which we are acting for all purposes under the warrants; |
| • | the aggregate number of, and the price at which we will issue, the warrants; |
| • | the currency with which the warrants may be purchased; |
| • | whether we will issue the warrants in registered form or bearer form or both; |
| • | the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants; |
| • | if applicable, the minimum or maximum amount of warrants that may be exercised at any one time; |
| • | if applicable, the date on and after which the warrants and the related securities will be separately transferable; |
| • | whether the warrants are put warrants, call warrants or spread warrants (entitling the holder to receive a cash value to be determined by reference to the amount, if any, by which a specified reference value of the warrant property at the time of exercise exceeds a specified base value of the warrant property), whether you or we will have the right to exercise the warrants and any conditions or restrictions on the exercise of the warrants; |
| • | the specific warrant property or cash value, and the amount or the method for determining the amount of the warrant property or cash value, deliverable upon exercise of each warrant; |
| • | the price at which and the currency with which the underlying securities, currencies or commodities may be purchased or sold upon the exercise of each warrant, or the method of determining that price; |
| • | whether the warrant must be exercised by the payment of the exercise price in cash, on a cashless basis or by the delivery of any other security; |
| • | whether the exercise of the warrants is to be settled in cash or by delivery of the underlying securities, commodities, or both; |
| • | the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars, determination or other agents; |
| • | certain U.S. federal income tax considerations, certain German income tax consequences and certain income tax consequences due to the jurisdiction of any relevant issuing branch, in each case in relation to an investment in the warrants; |
| • | the proposed listing, if any, of the warrants or any securities that may be acquired upon exercise of the warrants on any securities exchange; |
| • | whether the warrants are to be sold separately or with other securities as part of units; and |
| • | any additional terms of the agreement governing the warrants and any terms required by or advisable under applicable laws or regulations. |
Office Substitution
We may issue series of warrants that permit us at any time, without the consent of the holders, to designate our head office or another branch of ours (in this paragraph, we refer to each of our head office or any of our branches as an “office”) as substitute for the office through which we have acted to issue such series with the same effect as if such substitute office had been originally named as the office through which we had acted to issue such series for all purposes under the warrant agreement
71
Table of Contents
and such series. In order to give effect to such a substitution, we will give notice of the substitution to the holders of such series of warrants. With effect from the substitution date, such substitute office will, without any amendment of such series of warrants or the warrant agreement, assume all of the obligations of the originally-named office as principal obligor under such series of warrants. The applicable pricing supplement will include a reference to office substitution if included as a term of a series of warrants.
Governing Law
The warrants will be governed by, and construed in accordance with, the laws of the State of New York, excluding choice of law provisions.
72
Table of Contents
DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts (including purchase contracts issued as part of a unit with one or more warrants, capital securities or debt securities issued by us or debt obligations or other securities of an entity affiliated or not affiliated with us) to purchase or sell, or whose redemption value is determined by reference to the performance, level or value of one or more of the following: securities issued by us or by an entity affiliated or not affiliated with us, indices, currencies, commodities, interest rates, any other financial, economic or other measures or instruments, including the occurrence or non-occurrence of any events or circumstances and/or a basket or baskets of any of these items.
We refer to the property described above as “purchase contract property.”
Each purchase contract will obligate the holder to purchase or sell, and obligate us to sell or purchase, on specified dates, the purchase contract property at a specified price or prices (which may be based on a formula), all as described in the applicable prospectus supplement. We may satisfy our obligations, if any, with respect to any purchase contract by delivering the purchase contract property, the cash value of such purchase contract property or the cash value of the purchase contract (which may be based on a formula or determined by reference to the performance, level or value of the purchase contract property), or, in the case of purchase contracts on underlying currencies, by delivering the underlying currencies, all as set forth in the applicable prospectus supplement. The applicable prospectus supplement will specify the methods by which the holders may purchase or sell the purchase contract property, any acceleration, cancellation or termination provisions, the identity of any purchase contract agent, other provisions relating to the settlement of a purchase contract or any other terms of the purchase contracts. The applicable prospectus supplement will also specify, if applicable, certain U.S. federal income tax considerations, certain German income tax consequences and certain income tax consequences due to the jurisdiction of any relevant issuing branch, in each case in relation to an investment in the purchase contracts.
Any provisions relating to the acknowledgment and acceptance of the effects of the imposition of any Resolution Measure on purchase contracts will be set out in the applicable prospectus supplement we will file in connection with their issuance.
Prepaid Purchase Contracts
Purchase contracts may require holders to satisfy their obligations under the purchase contracts at the time they are issued. We refer to these purchase contracts as “prepaid purchase contracts.” In certain circumstances, our obligation to settle prepaid purchase contracts on the relevant settlement date may be governed by the senior indenture and accordingly will rank on parity with all of our other unsecured and unsubordinated debt.
Purchase Contracts Issued as Part of Units
Purchase contracts issued as part of a unit will be governed by the terms and provisions of a unit agreement, as described in the applicable prospectus supplement.
73
Table of Contents
We may issue units consisting of any combination of ordinary shares, tradable subscription rights to subscribe for ordinary shares, warrants, purchase contracts, capital securities, debt securities issued by us and debt obligations or other securities of an entity affiliated or not affiliated with us. The applicable prospectus supplement will also describe, if applicable:
| • | the designation and the terms of the units and of any combination of ordinary shares, tradable subscription rights to subscribe for ordinary shares, warrants, purchase contracts, capital securities, debt securities issued by us and debt obligations or other securities of an entity affiliated or not affiliated with us constituting the units, including whether and under what circumstances the ordinary shares, tradable subscription rights to subscribe for ordinary shares, warrants, purchase contracts, capital securities, debt securities issued by us and debt obligations or other securities of an entity affiliated or not affiliated with us may be traded separately; |
| • | any additional terms of the agreement governing the units; |
| • | any additional provisions for the issuance, payment, settlement, transfer or exchange of the units or of the ordinary shares, tradable subscription rights to subscribe for ordinary shares, warrants, purchase contracts, capital securities, debt securities issued by us and debt obligations or other securities of an entity affiliated or not affiliated with us constituting the units; and |
| • | certain U.S. federal income tax considerations, certain German income tax consequences and certain income tax consequences due to the jurisdiction of any relevant issuing branch, in each case in relation to an investment in the units. |
The terms and conditions described under “Description of Ordinary Shares,” “Description of Tradable Subscription Rights to Subscribe for Ordinary Shares,” “Description of the Capital Securities,” “Description of Debt Securities,” “Description of Warrants” and “Description of Purchase Contracts” will apply to each unit and to any ordinary shares, tradable subscription rights to subscribe for ordinary shares, capital securities, debt securities, warrants and purchase contracts issued by us included in each unit, unless otherwise specified in the applicable prospectus supplement.
Any provisions relating to the acknowledgment and acceptance of the effects of the imposition of any Resolution Measure on units will be set out in the applicable prospectus supplement we will file in connection with their issuance.
74
Table of Contents
References to “you” in this “Resolution Measures” section means the holders of the capital securities, debt securities or warrants as the case may be (including the beneficial owners). “Beneficial owner” means (i) if any capital securities, debt securities or warrants are in global form, the beneficial owners of such securities (and any interest therein) and (ii) if any capital securities, debt securities or warrants are in definitive form, the holders in whose name such securities are registered in the security or warrant register, as applicable, and any beneficial owners holding an interest in such securities in definitive form.
Under the relevant resolution laws and regulations as applicable to us from time to time, the capital securities, debt securities and warrants may be subject to the powers exercised by the competent resolution authority to:
| • | write down, including write down to zero, the claims for payment of the principal amount, the interest amount or any other amount or, if applicable, claims for delivery of any property in respect of the capital securities, debt securities or warrants; |
| • | convert the capital securities, debt securities or warrants into ordinary shares of (A) the Bank or (B) any group entity or (C) any bridge bank or other instruments of ownership of such entities qualifying as common equity tier 1 capital (and issue to or confer on the holders (including the beneficial owners) such ordinary shares or instruments); and/or |
| • | apply any other resolution measure, including, but not limited to, (i) any transfer of the capital securities, debt securities or warrants to another entity, (ii) the amendment, modification or variation of the terms and conditions of the capital securities, debt securities or warrants or (iii) the cancellation of the capital securities, debt securities or warrants. |
The write-down and conversion powers are commonly referred to as the “bail-in tool” and the bail-in tool and each of the other resolution measures are hereinafter referred to as a “Resolution Measure”. When we refer to a “group entity,” we mean an entity that is included in the corporate group subject to a Resolution Measure, and when we refer to a “bridge bank,” we mean a newly chartered German bank that would receive some or all of our equity securities, assets, liabilities and material contracts, including those attributable to our branches and subsidiaries, in the event of the imposition of Resolution Measures.
For the avoidance of doubt, any non-payment or, if applicable, non-delivery by us arising out of any such Resolution Measure will not constitute a failure by us under the terms of the capital securities, debt securities or warrants, or under the capital securities indenture, the senior indenture, the subordinated indenture, the eligible liabilities senior indenture, the senior debt funding or the warrant agreement, as applicable, to make a payment of principal of, interest on or other amounts owing, or deliverable, under the capital securities, debt securities or warrants.
Where applicable, we will include any further specific terms relating to the potential imposition of Resolution Measures with respect to future issuances of capital securities, debt securities and warrants in a prospectus supplement or a pricing supplement that we will file in connection with such issuance. The application of any Resolution Measure to purchase contracts and units will be described in the applicable prospectus supplement we will file in connection with their issuance.
Deemed Agreement to Resolution Measures
By your acquisition of the capital securities, debt securities or warrants (unless otherwise specified in the relevant pricing supplement), you will be deemed irrevocably to have agreed, and you will agree:
| • | 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 capital securities, debt securities or warrants to give effect to any Resolution Measure; |
| • | that you will have no claim or other right against us arising out of any Resolution Measure; |
| • | that, in the case of the capital securities and the debt securities, the imposition of any Resolution Measure will not constitute a default or an event of default (i) under such securities, (ii) under the relevant indenture or (iii) for the purpose of, but only to the fullest extent permitted by, the Trust Indenture Act (including, without limitation, Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act) and applicable law; and |
75
Table of Contents
| • | that, in the case of the warrants, the imposition of any Resolution Measure will not constitute a default (i) under the warrants or (ii) under the warrant agreement. |
By your acquisition of the capital securities, debt securities or warrants, you will 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 capital securities, debt securities or warrants, (ii) authorized, directed and requested The Depository Trust Company (in its capacity as the depositary, the “Depositary”) and any direct participant in the Depositary or other intermediary through which you hold such capital securities, debt securities or warrants to take any and all necessary action, if required, to implement the imposition of any Resolution Measure with respect to the capital securities, debt securities or warrants as it may be imposed, without any further action or direction on your part or on the part of the relevant trustee, the relevant agents or the warrant agent, as applicable, and (iii) acknowledged and accepted that the Resolution Measure provisions described in this “Resolution Measures” section are exhaustive on the matters described herein to the exclusion of any other agreements, arrangements or understandings between you and us relating to the terms and conditions of the capital securities, debt securities or warrants.
Resolution Measures Applicable to the Capital Securities and the Debt Securities
Unless otherwise specified in the relevant pricing supplement, by acquiring any capital securities or debt securities, you will be bound by and will be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority.
The terms and conditions of the capital securities or the debt securities, as the case may be, will continue to apply in relation to the residual principal amount of, or outstanding amount payable in respect of, the relevant securities, subject to any modification of the amount of interest payable, if any, to reflect the reduction of the principal amount, and any further modification of the terms of the relevant securities 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 Germany.
No repayment of any then-current principal amount of the capital securities or the debt securities or payment of interest or any other amount thereon (to the extent of the portion thereof affected by the imposition of a Resolution Measure) will 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 us under the laws and regulations of Germany then applicable to us.
By your acquisition of capital securities or the debt securities, as the case may be, you waive, to the fullest extent permitted by the Trust Indenture Act and applicable law, any and all claims against the relevant trustee or the relevant agents under the applicable indenture (which we refer to as the “agents” herein) for, agree not to initiate a suit against that trustee or those agents in respect of, and agree that that trustee and those agents will not be liable for, any action that that trustee or those agents take, or abstain from taking, in either case in accordance with the imposition of a Resolution Measure by the competent resolution authority with respect to the relevant securities.
Upon the imposition of a Resolution Measure by the competent resolution authority with respect to the capital securities or the debt securities, as the case may be, we will provide a written notice directly to the relevant holders in accordance with the relevant indenture as soon as practicable regarding such imposition of a Resolution Measure by the competent resolution authority for purposes of notifying such holders of such occurrence. We will also deliver a copy of such notice to the relevant trustee and the relevant agents for information purposes only, and that trustee and those agents will be entitled to rely, and will not be liable for relying, on the competent resolution authority and the Resolution Measure identified in such notice. Any delay or failure by us to give notice will not affect the validity or enforceability of any Resolution Measure nor the effects thereof on the relevant securities.
If, in the case of the capital securities, we have elected to redeem any capital securities or, in the case of the debt securities, any such debt securities are called or being called for redemption by us or submitted or being submitted by the holders for repurchase by us pursuant to an option to require us to repurchase such securities, but prior to the payment of the redemption or repurchase amount the competent resolution authority has imposed a Resolution Measure with respect to such securities, the relevant redemption or repurchase notice will be automatically rescinded and will be of no force and effect, and no payment of the redemption or repurchase amount will be due and payable.
76
Table of Contents
Upon the imposition of any Resolution Measure by the competent resolution authority, the relevant trustee for the capital securities or the debt securities, as the case may be, will not be required to take any further directions from holders of the relevant securities pursuant to the relevant indenture, which authorizes holders of a majority in aggregate principal amount of the relevant securities at the time outstanding to direct certain actions relating to those securities, and if any such direction was previously given pursuant to the relevant indenture to the relevant trustee by the relevant holders, it will automatically cease to be effective, be null and void and have no further effect.
No indenture will impose any duties, obligations or liabilities upon the relevant trustee or the relevant agents whatsoever with respect to the imposition of any Resolution Measure by the competent resolution authority. The relevant trustee and the relevant agents will be fully protected in acting or refraining from acting in accordance with a Resolution Measure. Notwithstanding the foregoing, if, following the completion of the imposition of a Resolution Measure by the competent resolution authority, the capital securities or the debt securities remain outstanding (for example, if the imposition of a Resolution Measure results in only a partial write-down of the principal of the relevant securities), then the relevant trustee’s and each relevant agent’s duties under the relevant indenture will remain applicable with respect to the relevant securities following such completion to the extent that we, the relevant trustee and the relevant agents agree pursuant to a supplemental indenture, unless we, the relevant trustee and the relevant agents agree that a supplemental indenture is not necessary.
If the competent resolution authority imposes a Resolution Measure with respect to less than the total outstanding principal amount of capital securities or the debt securities, as the case may be, unless the relevant trustee or the relevant agents are otherwise instructed by us or the competent resolution authority, any cancellation, write-off or conversion into equity made in respect of the relevant securities pursuant to the Resolution Measure will be made on a substantially pro rata basis among the relevant securities of any series.
Resolution Measures Applicable to the Warrants
Unless otherwise specified in the relevant pricing supplement, by acquiring any warrants issued on or after January 1, 2015, you will be bound by and will be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority.
The terms and conditions of the warrants will continue to apply in relation to the residual notional amount of, or the amount due but unpaid in respect of, the warrants, subject to any modification of the amount payable, if any, to reflect the reduction of the notional amount or amount due but unpaid in respect of the warrants, and any further modification of the terms and conditions of the warrants 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 Germany.
No payment of any amount (or delivery of any property, if applicable) in respect of the warrants (to the extent of the portion thereof affected by the imposition of a Resolution Measure) will become due and payable after the imposition of any Resolution Measure by the competent resolution authority, unless such payment or delivery would be permitted to be made by us under the laws and regulations of Germany then applicable to us.
By your acquisition of the warrants, you waive, to the fullest extent permitted by applicable law, any and all claims against the warrant agent for, agree not to initiate a suit against the warrant agent in respect of, and agree that the warrant agent will not be liable for, any action that the warrant agent 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 warrants.
Upon the imposition of a Resolution Measure by the competent resolution authority with respect to the warrants, we will provide a written notice directly to the holders in accordance with the warrant agreement as soon as practicable regarding such imposition of a Resolution Measure by the competent resolution authority for purposes of notifying holders of such occurrence. We will also deliver a copy of such notice to the warrant agent for information purposes, and the warrant agent will be entitled to rely, and will not be liable for relying, on the competent resolution authority and the Resolution Measure identified in such notice. Any delay or failure by us to give notice will not affect the validity or enforceability of any Resolution Measure nor the effects thereof on the warrants.
If you have elected to exercise any warrants, but prior to the payment or delivery of the cash settlement amount or warrant property for the warrants the competent resolution authority has
77
Table of Contents
imposed a Resolution Measure with respect to the warrants, the exercise notice will be automatically rescinded and will be of no force and effect, and no payment or delivery of the cash settlement amount or warrant property for the warrants will be due and payable or deliverable.
The warrant agreement will impose no duties, obligations or liabilities upon the warrant agent whatsoever with respect to the imposition of any Resolution Measure by the competent resolution authority and the warrant agent will be fully protected in acting or refraining from acting in accordance with a Resolution Measure. Notwithstanding the foregoing, if, following the completion of the imposition of a Resolution Measure by the competent resolution authority, the warrants remain outstanding, then the warrant agent’s duties under the warrant agreement will remain applicable with respect to the warrants following such completion to the extent that we and the warrant agent agree pursuant to an amendment to the warrant agreement, unless we and the warrant agent agree that an amendment to the warrant agreement is not necessary.
If the competent resolution authority imposes a Resolution Measure with respect to less than the total outstanding notional amount of warrants, unless the warrant agent is otherwise instructed by us or the competent resolution authority, any cancellation, write-off or conversion into equity made in respect of the warrants pursuant to the Resolution Measure will be made on a substantially pro rata basis among the warrants of any series.
In addition to the recognition of Resolution Measures, the terms of any warrants may also include provisions on the recognition of so-called stay powers of resolutions authorities, such as to stay termination and enforcement rights.
78
Table of Contents
Each capital security, debt security, warrant, purchase contract and unit will be represented either by:
| • | one or more global securities representing the entire issuance of securities; |
| • | a master note representing multiple securities that may be issued at different times and that may have different terms; or |
| • | a certificate issued in definitive form to a particular investor. |
Certificated securities in definitive form and global securities both may be issued either (1) in registered form, where our obligation runs to the holder of the security named on the face of the security or (2) in bearer form, where our obligation runs to the bearer of the security, subject to the limitations explained below under “—Limitations on Issuance of Bearer Securities” or, in the case of capital securities, the limitation to be described in the prospectus supplement relating to such capital security.
Unless the applicable prospectus supplement specifies otherwise, our ordinary shares will be issued in the form of global registered shares represented by one or more global securities.
Unless the applicable prospectus supplement specifies otherwise, tradable subscription rights to subscribe for our ordinary shares will be issued as book-entry interests in global registered form.
Legal Ownership
Global Securities. Global securities will name a depositary or its nominee as the owner of the capital securities, debt securities, warrants, purchase contracts or units represented by these global securities (other than global bearer securities, which name the bearer as owner). Investors in global securities can own only beneficial interests in such securities. The depositary maintains a computerized system that will reflect each investor’s beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below under “—Global Securities.”
Definitive Securities. Definitive securities will name you or your nominee as the owner of the security (other than definitive bearer securities, which will specify the bearer as owner). In order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the relevant trustee, registrar, paying agent or other agent, as applicable.
Our Obligations Are to Legal Owners Only. Our obligations, as well as the obligations of the trustees under any indenture, and the obligations, if any, of any warrant agents, purchase contract agents and unit agents and any other agents of ours, any agents of any trustee or any agents of any warrant agents, purchase contract agents or unit agents, run only to the persons or entities named as holders of the securities in the relevant security register, in the case of registered securities, or the persons or entities that are the bearers of those securities, in the case of bearer securities.
Neither we nor any trustee, warrant agent, purchase contract agent, unit agent, other agent of ours, agent of any trustee or agent of the warrant agents, purchase contract agents or unit agents has obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means.
Upon making a payment or giving a notice to the holder or bearer as required by the terms of that security, we will have no further responsibility for that payment or notice even if that holder or bearer is required, under agreements with depositary participants or customers or by law, to pass it along to the indirect owners of beneficial interests in that security but does not do so. Similarly, if we want to obtain the approval or consent of the holders or bearers of any securities for any purpose, we would seek the approval only from the holders or bearers, and not the indirect owners, of the relevant securities. Whether and how the holders or bearers contact the indirect owners would be governed by the agreements between such holders and bearers and the indirect owners.
Global Securities
Registered Global Securities. We may issue ordinary shares, registered capital securities, debt securities, warrants, purchase contracts and units in the form of one or more fully registered global
79
Table of Contents
securities that will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in the name of that depositary or its nominee. In those cases (except with regard to ordinary shares), one or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal, face amount or liquidation preference amount of the securities to be represented by registered global securities. In the case of ordinary shares, one or more registered global securities will be issued in the aggregate amount of the number of ordinary shares to be represented. Unless and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors of the depositary or those nominees. We may also issue debt securities which may be represented by a type of global security referred to as a master note. A master note represents multiple securities that may be issued at different times and that may have different terms. Unless otherwise specified, in connection with each issuance of such global securities, the trustee and/or paying agent will, in accordance with instructions from us, make appropriate entries or notations in its records relating to the master note representing such global securities to indicate that the master note evidences the new of that issuance.
If not described below, any specific terms of the depositary arrangement with respect to any securities to be represented by a registered global security will be described in the prospectus supplement relating to those securities. We anticipate that the following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global security will be limited to persons, called “participants,” who have accounts with the depositary or persons who may hold interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or selling agents participating in the distribution of the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect to interests of participants, and on the records of participants, with respect to interests of persons holding through participants. The laws of some states may require that some purchasers of securities take physical delivery of these securities in definitive form. These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be considered the sole owner or holder of the securities represented by the registered global security for all purposes under the Articles of Association, indenture, warrant agreement, purchase contract or unit agreement. Except as described below, owners of beneficial interests in a registered global security will not be entitled to have the securities represented by the registered global security registered in their names, will not receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered the owners or holders of the securities under the Articles of Association, indenture, warrant agreement, purchase contract or unit agreement. Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered global security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest, to exercise any rights of a holder under the Articles of Association, indenture, warrant agreement, purchase contract or unit agreement. We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under the Articles of Association, indenture, warrant agreement, purchase contract or unit agreement, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through them to give or take that action or would otherwise act upon the instructions of beneficial owners holding through them.
Payments of principal of, and premium (if any) and interest (if any) on, capital securities and debt securities, and any payments to holders with respect to ordinary shares, warrants, purchase contracts or units, represented by a registered global security registered in the name of a depositary or its nominee, will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered global security. None of the Bank, the trustees, the warrant agents, the purchase contract agents, the unit agents or any other agent of the Bank, agent of any trustee or agent of the
80
Table of Contents
warrant agents, purchase contract agents or unit agents will have any responsibility or liability for any aspect of the records relating to payments made on account of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial ownership interests.
We expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment of dividend, principal, premium, interest or other distribution of underlying securities or other property to holders on that registered global security, will immediately credit participants’ accounts in amounts proportionate to their respective beneficial interests in that registered global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in a registered global security held through participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of those participants, not us.
Discontinuance of Any Depositary. If the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a clearing agency under the Exchange Act is not appointed by us within 90 days, we will issue securities in definitive form in exchange for the registered global security that had been held by the depositary. In addition, we may at any time request the withdrawal from the depositary of any of the securities represented by one or more registered global securities. Upon receipt of such request, the depositary will issue a notice to its participants of our request, and will process any withdrawal requests submitted by those participants in accordance with its procedures. If participants request withdrawal following our request, we will issue securities in definitive form in exchange for that portion of the registered global security or securities representing the securities held by participants requesting such withdrawal. Any securities issued in definitive form in exchange for a registered global security will be registered in the name or names that the depositary gives to the relevant trustee, warrant agent, purchase contract agent, unit agent or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered global security that had been held by the depositary.
Bearer Global Securities. The securities may also be issued in the form of one or more bearer global securities that will be deposited with a common depositary for Euroclear Bank SA/NV, as operator of the Euroclear System, and Clearstream Banking, société anonyme, or with a nominee for the depositary identified in the prospectus supplement relating to those securities. The specific terms and procedures, including the specific terms of the depositary arrangement, with respect to any securities to be represented by a bearer global security will be described in the prospectus supplement relating to those securities.
Limitations on Issuance of Bearer Securities
In compliance with U.S. federal income tax laws and regulations, bearer securities, including bearer securities in global form, will not be offered, sold or delivered, directly or indirectly, in the United States or its possessions or to United States persons, as defined below, except as otherwise permitted by Notice 2012-20, implementing rules similar to former United States Treasury Regulations Section 1.163–5(c)(2)(i)(D). Any underwriters, selling agents or dealers participating in the offerings of bearer securities, directly or indirectly, must agree that:
| • | they will not, in connection with the original issuance of any bearer securities or during the restricted period with respect to such securities (as defined in former United States Treasury Regulations Section 1.163–5(c)(2)(i)(D)(7)), which we refer to as the “restricted period,” offer, sell or deliver, directly or indirectly, any bearer securities in the United States or its possessions or to United States persons, other than as permitted by the applicable Treasury regulations described above; and |
| • | they will not, at any time, offer, sell or deliver, directly or indirectly, any bearer securities in the United States or its possessions or to United States persons, other than as permitted by the applicable Treasury regulations described above. |
In addition, any underwriters, selling agents or dealers must have procedures reasonably designed to ensure that their employees or agents who are directly engaged in selling bearer securities are aware of the above restrictions on the offering, sale or delivery of bearer securities.
81
Table of Contents
Bearer securities, other than bearer securities that satisfy the requirements of Notice 2012-20, implementing rules similar to former United States Treasury Regulations Section 1.163–5(c)(2)(i)(D)(3)(iii) and any coupons or talons appertaining thereto, will not be delivered in definitive form, and no interest will be paid thereon, unless the Bank has received a signed certificate in writing, or an electronic certificate described in Notice 2012-20, implementing rules similar to former United States Treasury Regulations Section 1.163–5(c)(2)(i)(D)(3)(ii), stating that on the date of that certificate the bearer security:
| • | is owned by a person that is not a United States person; or |
| • | is owned by a United States person that: |
| (1) | is a foreign branch of a United States financial institution, as defined in applicable United States Treasury Regulations, which we refer to as a “financial institution,” purchasing for its own account or for resale; or |
| (2) | is acquiring the bearer security through a foreign branch of a United States financial institution and who holds the bearer security through that financial institution through that date, |
and in either case (1) or (2) above, each of those United States financial institutions agrees and certifies, on its own behalf or through its agent, that the Bank may be advised that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder; or
| • | is owned by a United States or foreign financial institution for the purposes of resale during the restricted period and, in addition, if the owner of the bearer security is a United States or foreign financial institution described in this clause, whether or not also described in the first or second clause above, the financial institution certifies that it has not acquired the bearer security for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions. |
We will make payments on bearer securities only outside the United States and its possessions except as permitted by the above rules.
Bearer securities, other than temporary global securities, and any coupons issued with bearer securities will bear the following legend: “Any United States person who holds this obligation will be subject to limitations under the United States income tax laws, including the limitations provided in sections 165(j) and 1287(a) of the Internal Revenue Code.” The sections referred to in this legend provide that, with exceptions, a United States person will not be permitted to deduct any loss, and will not be eligible for capital gain treatment with respect to any gain realized on the sale, exchange or redemption of that bearer security or coupon.
As used in this section, the term bearer securities includes bearer securities that are part of units. As used herein, “United States person” means a citizen or resident of the United States for U.S. federal income tax purposes, a corporation or partnership, including an entity treated as a corporation or partnership for U.S. federal income tax purposes, created or organized in or under the laws of the United States, or any state of the United States or the District of Columbia, or which is otherwise subject to U.S. federal income taxation on a net income basis.
Form of Securities Included in Units
The form of the warrant or purchase contract included in a unit will correspond to the form of the other components of the security.
82
Table of Contents
PLAN OF DISTRIBUTION (CONFLICTS OF INTEREST)
We may sell the securities being offered by this prospectus in four ways: (1) acting through our head office or through one or more of our branches, (2) through selling agents, (3) through underwriters and/or (4) through dealers. Any of these selling agents, underwriters or dealers in the United States or outside the United States may include affiliates of the Bank.
In some cases, we or dealers acting for us or on our behalf may also repurchase securities and reoffer them to the public by one or more of the methods described above.
In addition, we may issue the securities as a dividend or distribution or in a subscription rights offering to our existing security holders.
We may designate selling agents from time to time to solicit offers to purchase these securities. We will name any such agent, who may be deemed to be an underwriter as that term is defined in the Securities Act, and state any commissions or the possible range of commissions we are to pay to that agent in the applicable prospectus supplement. That agent will be acting on a reasonable efforts basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis.
If we use any underwriters to offer and sell these securities, we will enter into an underwriting agreement with those underwriters when we and they determine the offering price of the securities, and we will include the names of the underwriters and the terms of the transaction in the applicable prospectus supplement.
If we use a dealer to offer and sell these securities, we will sell the securities to the dealer, who will purchase the securities as principal. The dealer may then resell the securities to the public at varying prices to be determined by that dealer at the time of resale.
Our net proceeds will be the purchase price in the case of sales to a dealer, the public offering price less discount in the case of sales to an underwriter or the purchase price less commission in the case of sales through a selling agent – in each case, less other expenses attributable to issuance and distribution.
In order to facilitate the offering of these securities, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of these securities or any other securities the prices of which may be used to determine payments on these securities. Specifically, the underwriters may sell more securities than they are obligated to purchase in connection with the offering, creating a short position for their own accounts. A short sale is covered if the short position is no greater than the number or amount of securities available for purchase by the underwriters under any over-allotment option. The underwriters can close out a covered short sale by exercising the over-allotment option or purchasing these securities in the open market. In determining the source of securities to close out a covered short sale, the underwriters will consider, among other things, the open market price of these securities compared to the price available under the over-allotment option. The underwriters may also sell these securities or any other securities in excess of the over-allotment option, creating a naked short position. The underwriters must close out any naked short position by purchasing securities in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of these securities in the open market after pricing that could adversely affect investors who purchase in the offering. As an additional means of facilitating the offering, the underwriters may bid for, and purchase, these securities or any other securities in the open market to stabilize the price of these securities or of any other securities. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may also reclaim selling concessions allowed to an underwriter or a dealer for distributing these securities in the offering, if the syndicate repurchases previously distributed securities to cover syndicate short positions or to stabilize the price of these securities. Any of these activities may raise or maintain the market price of these securities above independent market levels or prevent or slow a decline in the market price of these securities. The underwriters are not required to engage in these activities, and may end any of these activities at any time.
Selling agents, underwriters and dealers may be entitled under agreements with us to indemnification by us against some civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for the Bank in the ordinary course of business.
If so indicated in the prospectus supplement, we will authorize selling agents, underwriters or dealers to solicit offers by some purchasers to purchase ordinary shares, tradable subscription rights to
83
Table of Contents
subscribe for ordinary shares, capital securities, debt securities, warrants, purchase contracts or units, as the case may be, from us at the public offering price stated in the prospectus supplement under delayed delivery contracts providing for payment and delivery on a specified date in the future. These contracts will be subject only to those conditions described in the prospectus supplement, and the prospectus supplement will state the commission payable for solicitation of these offers.
Conflicts of Interest. To the extent an offering of the securities will be distributed by Deutsche Bank Securities Inc. or any other U.S. broker-dealer affiliate of the Bank, each such offering of securities must be conducted in compliance with the requirements of Rule 5121 of the Financial Industry Regulatory Authority, Inc., or “FINRA,” regarding a FINRA member firm’s distribution of securities of affiliates and related conflicts of interest. No underwriter, selling agent or dealer utilized in the offering of securities that is an affiliate of the Bank will confirm sales to accounts over which it exercises discretionary authority without the prior specific written approval of its customer.
Following the initial distribution of any of these securities, affiliates of the Bank may offer and sell these securities in the course of their businesses. Such affiliates may act as principals or agents in these transactions and may make any sales at varying prices related to prevailing market prices at the time of sale or otherwise. Such affiliates may also use this prospectus in connection with these transactions. None of our affiliates is obligated to make a market in any of these securities and may discontinue any market-making activities at any time without notice.
84
Table of Contents
The following is a statement of expenses, other than underwriting discounts and commissions, in connection with the distribution of the securities registered. Amounts shown, other than the Securities and Exchange Commission Registration Fee, are estimates.
| Amount to be paid |
||||
| Securities and Exchange Commission Registration Fee |
$ | 8,837,577.75 | ||
| Federal Taxes, State Taxes and Fees |
N/A | |||
| Trustees’ and Transfer Agents’ Fees |
$ | 100,000 | ||
| Legal Fees |
$ | 650,000 | ||
| Accounting Fees |
$ | 100,000 | ||
| Printing and Engraving Costs |
$ | 30,000 | ||
|
|
|
|||
| Total |
$ | 9,717,577.75 | ||
|
|
|
|||
| Financial Industry Regulatory Authority Filing Fee(1) |
$ | 225,500 | ||
|
|
|
|||
| Total |
$ | 9,943,077.75 | ||
|
|
|
|||
| (1) | Applicable for securities not rated investment grade or not in the same series as investment grade rated securities. |
85
Table of Contents
Certain legal matters with respect to German, United States and New York law relating to the validity of certain of the offered securities may be passed upon for the issuer of those securities by Cleary Gottlieb Steen & Hamilton LLP.
Certain legal matters with respect to United States and New York law relating to the validity of the senior debt securities and the warrants will be passed upon for the issuer of those securities by Davis Polk & Wardwell LLP.
Certain legal matters with respect to United States and New York law relating to the validity of the capital securities will be passed upon for the underwriters of, or dealers or selling agents with respect to, those securities by Davis Polk & Wardwell London LLP.
Certain legal matters with respect to German law relating to the validity of certain of the offered securities will be passed upon for the issuer of those securities by Group Legal Services of Deutsche Bank Aktiengesellschaft. Certain legal matters with respect to the validity of certain of the offered securities for any underwriters, dealers or selling agents will be passed upon by the firms or persons identified in the applicable prospectus supplement.
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The consolidated financial statements of Deutsche Bank Aktiengesellschaft at December 31, 2023 and 2022, and for each of the three years in the period ended December 31, 2023, appearing in Deutsche Bank Aktiengesellschaft’s Annual Report (Form 20-F) for the year ended December 31, 2023 and the effectiveness of Deutsche Bank Aktiengesellschaft’s internal control over financial reporting as of December 31, 2023 have been audited by EY GmbH & Co. KG Wirtschaftsprüfungsgesellschaft, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
BENEFIT PLAN INVESTOR CONSIDERATIONS
The Bank and some of our affiliates may each be considered a “party in interest” within the meaning of ERISA, or a “disqualified person” within the meaning of the Internal Revenue Code with respect to many employee benefit plans and perhaps certain other types of arrangements, such as individual retirement accounts. Prohibited transactions within the meaning of ERISA or the Internal Revenue Code may arise, for example, if the securities are acquired by or with the assets of a pension or other plan with respect to which the Bank or any of its affiliates is a service provider, unless those securities are acquired pursuant to an exemption from the applicable prohibited transaction rules. The assets of a pension or other plan may include assets held in certain investment funds or in the general account of an insurance company that are deemed to be “plan assets” under ERISA and the Internal Revenue Code. In addition, other employee benefit plans and accounts (such as governmental plans or non-U.S. plans) not subject to ERISA or the Internal Revenue Code may nonetheless be subject to similar rules under other applicable laws or documents. Any pension or other plan, or any person investing the assets of a pension or other plan, proposing to invest in the securities should read the Benefit Plan Investor Considerations set forth in the relevant prospectus or pricing supplement(s) applicable to the securities being purchased and should consult with legal counsel prior to investing in the securities.
86
Table of Contents
We have not authorized anyone to provide any information other than that contained or incorporated by reference in this prospectus. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may provide. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities described in an accompanying prospectus supplement or an offer to sell or the solicitation of an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. Neither the delivery of this prospectus, nor any sale made hereunder and thereunder shall, under any circumstances, create any implication that there has been no change in the affairs of Deutsche Bank Aktiengesellschaft since the date hereof or that the information contained or incorporated by reference herein or therein is correct as of any time subsequent to the date of such information.
Deutsche Bank
Aktiengesellschaft
$59,875,188,000
Ordinary Shares
Tradable Subscription Rights to Subscribe for Ordinary Shares
Capital Securities
Debt Securities
Warrants
Purchase Contracts
Units
Prospectus
, 2024
Table of Contents
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Indemnification of Directors and Officers
Deutsche Bank Aktiengesellschaft
Under German law, a corporation may indemnify its officers, and, under certain circumstances, German labor law requires a stock corporation to do so. However, a corporation may not, as a general matter, indemnify members of the Management Board or the Supervisory Board. A German stock corporation may, however, purchase directors’ and officers’ liability insurance. The insurance may be subject to any mandatory restrictions imposed by German law, including a deductible. In addition, German law permits a corporation to indemnify a member of the Management Board or the Supervisory Board for attorneys’ fees incurred if such member is the successful party in a suit in a country, like the United States, where winning parties are required to bear their own costs, if German law would have required the losing party to pay the member’s attorneys’ fees had the suit been brought in Germany and for attorneys’ fees incurred in connection with other proceedings, unless the subject matter of such proceedings qualifies as a violation of a duty of the member of the Management Board or the Supervisory Board vis-à-vis the corporation.
Members of the Registrant’s Supervisory Board and Management Board and officers of the Registrant are covered by customary liability insurance, including insurance against liabilities under the Securities Act.
Exhibits
Reference is made to the Exhibit Index included herewith which is incorporated herein by reference.
Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment shall be deemed to be a new registration statement relating to the securities offered in the post-effective amendment, and the offering of those securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
II-1
Table of Contents
(4) To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act need not be furnished, provided that the Registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act or Item 8.A of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(5) That, for the purpose of determining liability under the Securities Act to any purchaser:
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(6) That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities: The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(7) That, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(8) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
II-2
Table of Contents
(9) In the event that tradable subscription rights to subscribe for ordinary shares are offered to existing shareholders and any rights not taken by shareholders are reoffered to the public, to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed subscription rights to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by them is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
II-3
Table of Contents
EXHIBIT INDEX
E-1
Table of Contents
E-2
Table of Contents
| (1) | To be filed by amendment or incorporated by reference. Deutsche Bank Aktiengesellschaft will furnish on a Form 6-K and incorporate by reference any related Form used in the future and not previously filed by means of an amendment or incorporated by reference. |
| (2) | Previously filed with the SEC as exhibits to this Registration Statement on March 28, 2024. |
E-3
Table of Contents
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Pre-Effective Amendment No.1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Frankfurt am Main, Germany, as of this 26th day of April 2024.
| DEUTSCHE BANK AKTIENGESELLSCHAFT | ||||
| By: | /s/ Andrew Rivas | |||
| Name: | Andrew Rivas | |||
| Title: | Director | |||
| By: | /s/ VyVy Huynh | |||
| Name: | VyVy Huynh | |||
| Title: | Vice President | |||
S-1
Table of Contents
Pursuant to the requirements of the Securities Act of 1933, as amended, this Pre-Effective Amendment No.1 to Registration Statement has been signed by the following persons in the capacities indicated as of this 26th day of April 2024.
| Signature |
Title | |
| * Christian Sewing |
Chief Executive Officer (Principal Executive Officer) and Chairman of the Management Board | |
| * James von Moltke |
Chief Financial Officer (Principal Financial Officer) and Member of the Management Board | |
| * Claudio de Sanctis |
Member of the Management Board | |
| * Fabrizio Campelli |
Member of the Management Board | |
| * Bernd Leukert |
Member of the Management Board | |
| * Olivier Vigneron |
Member of the Management Board | |
| * Alexander von zur Mühlen |
Member of the Management Board | |
| * Stefan Simon |
Member of the Management Board and Authorized Representative in the United States | |
| * Rebecca Short |
Member of the Management Board | |
| * Andrea Schriber |
Chief Accounting Officer (Principal Accounting Officer) | |
| *By: | /s/ Andrew Rivas | |
| Andrew Rivas | ||
| Attorney-in-fact |
| *By: | /s/ VyVy Huynh | |
| VyVy Huynh | ||
| Attorney-in-fact |
S-2
EXHIBIT 4.1(b)
FIRST SUPPLEMENTAL SENIOR INDENTURE
AMONG
DEUTSCHE BANK AKTIENGESELLSCHAFT
Issuer
AND
DELAWARE TRUST COMPANY
Trustee
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
Paying Agent, Authenticating Agent, Issuing Agent and Registrar
Dated as of April 26, 2024
Supplemental to the Amended and Restated Senior Indenture
Dated as of August 3, 2021
TABLE OF CONTENTS
| ARTICLE 1 Amendments to the Indenture |
1 | |||
| SECTION 1.01. Amount Unlimited; Issuable in Series |
1 | |||
| SECTION 1.02. Supplemental Indentures With Consent of Securityholders |
4 | |||
| SECTION 1.03. New York Law to Govern |
5 | |||
| ARTICLE 2 Miscellaneous Provisions |
5 | |||
| SECTION 2.01. Further Assurances |
5 | |||
| SECTION 2.02. Other Terms of Indenture |
6 | |||
| SECTION 2.03. Terms Defined |
6 | |||
| SECTION 2.04. Governing Law |
6 | |||
| SECTION 2.05. Counterparts; Severability |
6 | |||
| SECTION 2.06. Responsibility of the Trustee |
6 | |||
THIS FIRST SUPPLEMENTAL SENIOR INDENTURE, dated as of April 26, 2024 (this “First Supplemental Senior Indenture”) among DEUTSCHE BANK AKTIENGESELLSCHAFT (the “Issuer”), DELAWARE TRUST COMPANY, as trustee (the “Trustee”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Paying Agent, Authenticating Agent, Issuing Agent and Registrar.
W I T N E S S E T H :
WHEREAS, the Issuer and the Trustee are parties to that certain Amended and Restated Senior Indenture, dated as of August 3, 2021, among the Issuer, the Trustee and Deutsche Bank Trust Company Americas (the “Existing Indenture”; as supplemented by this First Supplemental Senior Indenture, the “Indenture”);
WHEREAS, Section 9.01(d) of the Existing Indenture provides that, without the consent of the Holders of any Securities, the Issuer and the Trustee may enter into indentures supplemental to the Existing Indenture for the purpose of, among other things, making any provisions as the Issuer may deem necessary or desirable; provided that no such action shall adversely affect the interests of the Holders of the Securities or Coupons;
WHEREAS, there are no Outstanding Securities of any series created prior to the execution of this First Supplemental Senior Indenture which are entitled to the benefit of the provisions set forth herein or would be adversely affected by such provisions;
WHEREAS, the Issuer desires and the Trustee has agreed, at the request of the Issuer, to amend Sections 2.03, 9.02 and 12.08 of the Existing Indenture solely with respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Indenture;
WHEREAS, the entry into this First Supplemental Senior Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture; and
WHEREAS, all things necessary to make this First Supplemental Senior Indenture a valid, binding and enforceable agreement of the Issuer and the Trustee and a valid supplement to the Existing Indenture have been done;
NOW, THEREFORE:
In consideration of the premises, the Issuer and the Trustee mutually covenant and agree, for the equal and proportionate benefit of the respective Holders from time to time of the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Indenture, as follows:
ARTICLE 1
AMENDMENTS TO THE INDENTURE
SECTION 1.01. Amount Unlimited; Issuable in Series. Solely with respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Indenture, Section 2.03 of the Existing Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. The obligations under the Securities constitute unsecured and unsubordinated obligations of the Issuer and shall rank pari passu among themselves and with all other unsecured and unsubordinated obligations of the Issuer, subject, however, to statutory priorities conferred on certain unsecured and unsubordinated obligations in the event of any Resolution Measures imposed on the Issuer or in the event of the dissolution, liquidation, insolvency or composition of the Issuer, or if other proceedings are opened for the avoidance of the insolvency of, or against, the Issuer; in accordance with Section 46f(5) of the German Banking Act (Kreditwesengesetz), the obligations of the Issuer under the Securities rank in priority to the Issuer’s obligations under any of its debt instruments (Schuldtitel) within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including the obligations under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act (Kreditwesengesetz)) or any successor provision. There shall be established in one or more Board Resolutions, in one or more Officers’ Certificates detailing such establishment, or in one or more indentures supplemental hereto, prior to the initial issuance of Securities of any series,
(a) the designation of the Securities of the series, which shall distinguish the Securities of the series from the Securities designation of all other series;
(b) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, Section 2.09, Section 2.11, Section 9.05 or Section 13.01);
(c) if other than U.S. Dollars, the coin or currency in which the Securities of that series are denominated (including, but not limited to, any Non-U.S. Currency);
(d) the date or dates on which the principal of the Securities of the series is payable (and any provisions relating to extending or shortening the date on which the principal of the Securities is payable);
(e) the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, on which such interest shall be payable and (in the case of Registered Securities) on which a record shall be taken for the determination of Holders to whom interest is payable and/or the method by which such rate or rates or date or dates shall be determined;
(f) the place or places where the principal of and any interest on Securities of the series shall be payable (if other than as provided in Section 3.02);
(g) the right, if any, of the Issuer to redeem Securities, in whole or in part, at its option and the period or periods within which, the price or prices at which and any terms and conditions, including the Redemption Notice Period, upon which Securities of the series may be so redeemed, pursuant to any sinking fund or otherwise;
2
(h) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which and any terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(i) if other than denominations of $1,000 and any integral multiple thereof in the case of Registered Securities, or $1,000 and any integral multiple thereof in the case of Bearer Securities, the denominations in which Securities of the series shall be issuable;
(j) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof;
(k) if other than the coin or currency in which the Securities of that series are denominated, the coin or currency in which payment of the principal of or interest on the Securities of such series shall be payable;
(l) if the principal of or interest on the Securities of such series are to be payable, at the election of the Issuer or a Holder thereof, in a coin or currency other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions upon which, such election may be made;
(m) if the amount of payments of principal of and interest on the Securities of the series may be determined with reference to any currencies, commodities or securities of the Issuer or of other entities, a basket or baskets of those currencies, commodities or securities, or an index or indices of those currencies, commodities or securities, or interest rates, or intangibles, articles, or goods, or any other financial or economic or other measure or instrument, including the occurrence or non-occurrence of any event or circumstance, the manner in which such amounts shall be determined;
(n) if the Holders of the Securities of the series may convert or exchange the Securities of the series into or for securities of other entities unaffiliated with the Issuer or other property (or the cash value thereof) of the Issuer (other than securities of financial sector entities that constitute own funds instruments or eligible liabilities), the specific terms of and period during which such conversion or exchange may be made;
(o) whether the Securities of the series will be issuable as Registered Securities (and if so, whether such Securities will be issuable as Registered Global Securities) or Bearer Securities (with or without Coupons), or any combination of the foregoing, any restrictions applicable to the offer, sale, transfer, exchange or delivery of Bearer Securities or Registered Securities or the payment of interest thereon and, if other than as provided in Section 2.08, the terms upon which Bearer Securities of any series may be exchanged for Registered Securities of such series and vice versa;
3
(p) whether and under what circumstances the Issuer will pay additional amounts on the Securities of the series held by a Person who is not a U.S. Person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem such Securities rather than pay such additional amounts;
(q) if the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
(r) any trustees, depositaries, authenticating or Paying Agents, transfer agents or registrars or any other agents with respect to the Securities of such series;
(s) any other events of default, or any deletions from, additions to or modifications of the covenants of the Issuer set forth herein with respect to the Securities of such series; and
(t) any other terms of the series.
All Securities of any one series and Coupons, if any, appertaining thereto, shall be substantially identical, except in the case of Registered Securities as to denomination and except as may otherwise be provided by the Board Resolution or Officers’ Certificate referred to above or as set forth in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by such Board Resolution, such Officers’ Certificate or in any such indenture supplemental hereto; provided, however, that additional Securities shall be issued under a separate CUSIP or ISIN number unless the additional Securities are issued pursuant to a “qualified reopening” of the original series, are otherwise treated as part of the same “issue” of debt instruments as the original series or are issued with less than a de minimis amount of original issue discount, in each case for U.S. federal income tax purposes.”
SECTION 1.02. Supplemental Indentures With Consent of Securityholders. Solely with respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Indenture, the first paragraph of Section 9.02 of the Existing Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 9.02. Supplemental Indentures With Consent of Securityholders. With the consent (evidenced as provided in Article 8) of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series affected by such supplemental indenture (voting as one class), the Issuer, when authorized by a resolution of its Board (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order), and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the
4
provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series or of the Coupons appertaining to such Securities; provided, that no such supplemental indenture shall (a) (i) change the final maturity of any Security, (ii) reduce the principal amount thereof, (iii) reduce the rate or change the time of payment of interest thereon, (iv) reduce any amount payable on redemption thereof, (v) make the principal thereof (including any amount in respect of original issue discount), or interest thereon payable in any coin or currency other than that provided in the Securities and Coupons or in accordance with the terms thereof, (vi) modify or amend any provisions for converting any currency into any other currency as provided in the Securities or Coupons or in accordance with the terms thereof, (vii) reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 5.01 or the amount thereof provable in bankruptcy pursuant to Section 5.02, (viii) modify or amend any provisions relating to the conversion or exchange of the Securities or Coupons for securities of other entities unaffiliated with the Issuer or other property (or the cash value thereof), including the determination of the amount of securities or other property (or cash) into which the Securities shall be converted or exchanged, other than as provided in the antidilution provisions or other similar adjustment provisions of the Securities or Coupons or otherwise in accordance with the terms thereof (other than, in each case, any securities of financial sector entities that constitute own funds instruments or eligible liabilities),(ix) alter the provisions of Section 12.11 or Section 12.13 or impair or affect the right of any Securityholder to institute suit for the payment thereof or, if the Securities provide therefor, any right of repayment at the option of the Securityholder, in each case without the consent of the Holder of each Security so affected, or (b) reduce the aforesaid percentage of Securities of any series, the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holders of each Security so affected.”
SECTION 1.03. New York Law to Govern. Solely with respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Indenture, Section 12.08 of the Existing Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 12.08. New York Law to Govern. This Indenture and each Security and Coupon 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 the State of New York, except as may otherwise be required by mandatory provisions of law.”
ARTICLE 2
MISCELLANEOUS PROVISIONS
SECTION 2.01. Further Assurances. The Issuer will, upon request by the Trustee, execute and deliver such further instruments and do such further acts as may reasonably be necessary or proper to carry out more effectively the purposes of this First Supplemental Senior Indenture.
5
SECTION 2.02. Other Terms of Indenture. Except insofar as herein otherwise expressly provided, all provisions, terms and conditions of the Existing 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 Existing Indenture shall have the same meanings when used herein.
SECTION 2.04. Governing Law. This First Supplemental Senior 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 the State of New York, except as may otherwise be required by mandatory provisions of law.
SECTION 2.05. Counterparts; Severability. This First Supplemental Senior Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective as delivery of a manually executed counterpart of this First Supplemental Senior Indenture. Each of the parties to this First Supplemental Senior Indenture represents that it has undertaken commercially reasonable steps to verify the identity of each individual person executing any such counterparts via electronic signature on behalf of such party and has and will maintain sufficient records of the same. This First Supplemental Senior Indenture shall become effective when each party shall have received a counterpart hereof signed by all of the other parties to this First Supplemental Senior Indenture. If any provision hereof shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 2.06. Responsibility of the Trustee. The recitals contained herein shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Senior Indenture or the Securities.
[SIGNATURE PAGE FOLLOWS]
6
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Senior Indenture to be duly executed, all as of the date first written above.
| DEUTSCHE BANK | ||
| AKTIENGESELLSCHAFT | ||
| By: | /s/ Andrew Rivas | |
| Name: Andrew Rivas | ||
| Title: Director | ||
| By: | /s/ VyVy Huynh | |
| Name: VyVy Huynh | ||
| Title: Vice President | ||
| DELAWARE TRUST COMPANY, as Trustee | ||
| By: | /s/ Gregory Daniels | |
| Name: Gregory Daniels | ||
| Title: Vice President | ||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Paying Agent, Authenticating Agent, Issuing Agent and Registrar | ||
| By: | /s/ Chris Niesz | |
| Name: Chris Niesz | ||
| Title: Vice President | ||
| By: | /s/ Sebastian Hidalgo | |
| Name: Sebastian Hidalgo | ||
| Title: Assistant Vice President | ||
Exhibit 4.2
DEUTSCHE BANK AG
Senior Notes, Series A
MASTER NOTE
DATED: April 26, 2024
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.
This Note is a master note, which term means a Registered Global Security with the meaning specified in the Indenture (as defined on the reverse hereof) that provides for incorporation therein of the terms of one or more obligations of Deutsche Bank Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany, if so specified, acting through the office specified in the Related Prospectus (as defined below) (together with its successors and assigns, the “Issuer”), by reference to the Related Prospectuses. Each such obligation of the Issuer is referred to in this Note as a “Supplemental Obligation.”
The terms of each Supplemental Obligation shall be reflected in this Note and in the applicable pricing supplement relating to such Supplemental Obligation (each a “Related Pricing Supplement”) and any product supplement(s), underlying supplement(s), prospectus supplement(s) and prospectus referred to therein (however titled) (together with the Related Pricing Supplement, the “Related Prospectus”). The Issuer shall specify each Related Prospectus in the relevant Issuer Order to the Trustee and the Paying Agent at the time of issuance thereof. With respect to each Supplemental Obligation, the terms of the Supplemental Obligation contained in the Related Prospectus are hereby incorporated by reference in, and shall be deemed to be a part of, this Note for purposes of the applicable Supplemental Obligation only as of the original issue date specified in the relevant Related Pricing Supplement; provided, however, that for the avoidance of doubt, no hypothetical examples, risk factors, historical information, descriptions of underlying(s) or other information not considered to be terms of such Supplemental Obligation provided or incorporated by reference in the Related Prospectus shall be used to determine the terms of such Supplemental Obligation. Each Related Prospectus is on file with the Trustee and/or the Paying Agent referred to on the reverse hereof and is identified in the records of the Trustee and/or the Paying Agent.
With respect to each Supplemental Obligation evidenced by this Note, the Issuer, for value received, hereby promises to pay to Cede & Co., or registered assignees, the amounts due, if any, whether in cash, securities or other property, together with unpaid accrued interest thereon, if any, in each case as specified in the Related Prospectus, on the date or dates specified in the Related Prospectus.
1
All terms used in this Note that are or will be defined in the Indenture or Related Prospectus shall have the meanings assigned to them therein. In relation to a particular Supplemental Obligation, in the event of any inconsistency between the definitions in the Indenture and the definitions in the Related Prospectus, the definitions in the Related Prospectus shall govern.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. With respect to each Supplemental Obligation, every term of this Note is subject to modification, amendment or elimination through the incorporation of the applicable Related Prospectus by reference, whether or not the phrase “unless otherwise provided in the Related Prospectus” or language of similar import precedes the term of this Note so modified, amended or eliminated; provided however that no modification, amendment or elimination through the incorporation of the applicable Related Prospectus by reference shall affect the rights or obligations of the Trustee without its prior written consent. It is the intent of the parties hereto that, in the case of any conflict between the applicable Related Prospectus and the terms herein, the Related Prospectus shall control over the terms herein with respect to the relevant Supplemental Obligation. Without limiting the foregoing, in the case of each Supplemental Obligation, the holders of this Note are directed to the applicable Related Prospectus for a description of certain terms of such Supplemental Obligation, including the manner of determining the amounts due and/or property to be delivered, if any, as applicable, on such Supplemental Obligation and the date or dates, if any, on which amounts due and or securities or other property to be delivered, if any, on such Supplemental Obligation are to be paid or delivered, as applicable.
The principal amount of each Supplemental Obligation evidenced by this Note shall be as specified in the applicable Related Pricing Supplement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, acting on behalf of the Trustee, referred to on the reverse hereof by manual or electronic signature (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com), this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. Authentication of this Note by the Authenticating Agent shall be deemed to be due authentication pursuant to Section 2.06 of the Indenture with respect to each Supplemental Obligation evidenced by this Note and the execution and delivery of a written order of the Issuer with respect to a Supplemental Obligation by any two Authorized Signatories shall be deemed to be due execution pursuant to Section 2.05 of the Indenture with respect to such Supplemental Obligation.
2
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed as of the date first set forth above.
| DEUTSCHE BANK AG | ||
| By: | /s/ Andrew Rivas | |
| Name: Andrew Rivas | ||
| Title: Director | ||
| By: | /s/ VyVy Huynh | |
| Name: VyVy Huynh | ||
| Title: Vice President | ||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, | ||
| as Paying Agent, only with respect to its role to reflect Supplemental Obligations in its records | ||
| By: | /s/ Chris Niesz | |
| Name: Chris Niesz | ||
| Title: Vice President | ||
| By: | /s/ Sebastian Hidalgo | |
| Name: Sebastian Hidalgo | ||
| Title: Assistant Vice President | ||
| CERTIFICATE OF AUTHENTICATION
This Note is one of the Securities referred to in the within-mentioned Indenture.
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Authenticating Agent | ||
| By: | /s/ Chris Niesz | |
| Authorized Officer | ||
3
REVERSE OF NOTE
This Note represents one or more duly authorized Supplemental Obligations of Senior Notes, Series A of the Issuer (the “Notes”). The Notes are issuable under an Amended and Restated Senior Indenture, dated as of August 3, 2021, among the Issuer, Delaware Trust Company, as trustee (the “Trustee,” which term includes any successor trustee under the Indenture), and Deutsche Bank Trust Company Americas (“DBTCA”), as paying agent, authenticating agent, issuing agent and registrar, as amended and supplemented by the First Supplemental Senior Indenture dated as of April 26, 2024 (as amended or supplemented from time to time, the “Indenture”), to which Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities of the Issuer, the Trustee and Holders of the Notes and the terms upon which the Notes are, and are to be, authenticated and delivered. The Issuer has appointed DBTCA acting through its principal corporate trust office in the Borough of Manhattan, The City of New York, as its paying agent (the “Paying Agent,” which term includes any additional or successor Paying Agent appointed by the Issuer) with respect to the Notes. The Issuer has appointed DBTCA as the authenticating agent (the “Authenticating Agent,” which term includes any additional or successor Authenticating Agent appointed by the Issuer) to act on behalf of the Trustee to authenticate the Notes. The terms of individual Notes may vary with respect to interest rates, interest rate formulas, issue dates, maturity dates, or otherwise, all as provided in the Indenture. To the extent not inconsistent herewith, the terms of the Indenture are hereby incorporated by reference herein.
Unless otherwise provided in the Related Prospectus, a Supplemental Obligation will not be subject to any sinking fund. Unless otherwise provided in the Related Prospectus, a Supplemental Obligation will not be redeemable by the Issuer or subject to repayment at the option of the Holder prior to maturity.
The obligations under the Notes constitute unsecured and unsubordinated obligations of the Issuer and shall rank pari passu among themselves and with all other unsecured and unsubordinated obligations of the Issuer, subject, however, to statutory priorities conferred on certain unsecured and unsubordinated obligations in the event of any Resolution Measures imposed on the Issuer or in the event of the dissolution, liquidation, insolvency or composition of the Issuer, or if other proceedings are opened for the avoidance of the insolvency of, or against, the Issuer; in accordance with Section 46f(5) of the German Banking Act (Kreditwesengesetz), the obligations of the Issuer under the Notes rank in priority to the Issuer’s obligations under any of its debt instruments (Schuldtitel) within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including the obligations under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act (Kreditwesengesetz)) or any successor provision.
This Note, and any Note or Notes issued upon transfer or exchange hereof, is issuable only in fully registered form, without coupons, and each Supplemental Obligation is issued in the minimum denomination and any integral multiples thereof as specified in the Related Prospectus.
If “Office Substitution” is applicable to a Supplemental Obligation as specified in the Related Prospectus, the Issuer may at any time, without the consent of the Holders or the Trustee, designate another Office of the Issuer as substitute for the Office through which the Issuer has acted to issue such Supplemental Obligation with the same effect as if such substitute Office had
4
been originally named as the Office through which the Issuer had acted to issue such Supplemental Obligation for all purposes under the Indenture and the Notes. In order to give effect to such substitution, the Issuer shall give notice of such substitution to the Trustee and the Holders of such Supplemental Obligation. With effect from the substitution date, such substitute Office shall, without any amendment to this Note or entry into any supplemental indenture, assume all of the obligations of the originally-named Office as principal obligor under such Supplemental Obligation. “Office” means the Issuer’s head office or one of the Issuer’s branch offices.
DBTCA has been appointed Registrar for the Notes, and DBTCA will maintain at its office in The City of New York, a register for the registration and transfer of Notes. This Note may be transferred at either the aforesaid New York office of DBTCA by surrendering this Note for cancellation, accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Trustee and the Authenticating Agent and duly executed by the registered Holder hereof in person or by the Holder’s attorney duly authorized in writing, and thereupon the Trustee or the Authenticating Agent shall authenticate and deliver in the name of the transferee or transferees, in exchange herefor, a new Note or Notes having identical terms and provisions and having a like aggregate principal amount in authorized denominations, subject to the terms and conditions set forth herein; provided, however, that neither the Trustee nor the Authenticating Agent will be required to (i) register the transfer of or exchange any Note that has been called for redemption in whole or in part, except the unredeemed portion of Notes being redeemed in part, (ii) register the transfer of or exchange any Note if the Holder thereof has exercised his right, if any, to require the Issuer to repurchase such Note in whole or in part, except the portion of such Note not required to be repurchased, or (iii) register the transfer of or exchange Notes to the extent and during the period so provided in the Indenture with respect to the redemption of Notes. Notes are exchangeable at said offices for other Notes of other authorized denominations of equal aggregate principal amount having identical terms and provisions. All such registrations, exchanges and transfers of Notes will be free of service charge, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge in connection therewith. All Notes surrendered for exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Trustee and the Authenticating Agent and executed by the registered Holder in person or by the Holder’s attorney duly authorized in writing. The date of registration of any Note delivered upon any exchange or transfer of Notes shall be such that no gain or loss of interest results from such exchange or transfer.
In case this Note shall at any time become mutilated, defaced or be destroyed, lost or stolen and this Note or evidence of the loss, theft or destruction thereof (together with the indemnity hereinafter referred to and such other documents or proof as may be required in the premises) shall be delivered to the Trustee and the Authenticating Agent, the Issuer in its discretion may execute a new Note of like tenor in exchange for this Note, but, in the case of any destroyed or lost or stolen Note, only upon receipt of evidence satisfactory to the Trustee, the Authenticating Agent and the Issuer that this Note was destroyed or lost or stolen and, if required, upon receipt also of indemnity satisfactory to each of them. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the owner of the Note mutilated, defaced, destroyed, lost or stolen.
5
The Indenture provides that (a) if an Event of Default due to the default in payment of principal, premium, if any, or interest, if any, on any series of debt securities issued under the Indenture, including any Supplemental Obligation, or due to the default in the performance or breach of any other covenant or warranty of the Issuer applicable to the debt securities of such series but not applicable to all outstanding debt securities issued under the Indenture, shall have occurred and be continuing, either the Trustee or the Holders of not less than 331⁄3% in aggregate principal amount of the outstanding debt securities of each affected series, voting as one class, by notice in writing to the Issuer and to the Trustee, if given by the noteholders, may then declare the principal of all debt securities of all such series and interest accrued thereon to be due and payable immediately and (b) if an Event of Default due to a default in the performance of any other of the covenants or agreements in the Indenture applicable to all outstanding debt securities issued thereunder, including all Supplemental Obligations, or due to certain events of bankruptcy, insolvency or reorganization of the Issuer, shall have occurred and be continuing, either the Trustee or the Holders of not less than 331⁄3% in aggregate principal amount of all outstanding debt securities issued under the Indenture voting as one class, by notice in writing to the Issuer and to the Trustee, if given by the noteholders, may declare the principal of all such debt securities and interest accrued thereon to be due and payable immediately, but upon certain conditions such declarations may be annulled and past defaults may be waived (except a continuing default in payment of principal, premium, if any, or interest, if any, on such debt securities) by the Holders of a majority in aggregate principal amount of the debt securities of all affected series then outstanding.
The terms and conditions set forth in the following paragraphs (a) – (k) shall apply to the Notes, and by acquiring the Notes, the Holder and each Beneficial Owner of the Notes shall be bound by and shall be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority.
| (a) | Under the relevant resolution laws and regulations as applicable to the Issuer from time to time, the Notes may be subject to the powers exercised by the competent resolution authority to: |
| (i) | write down, including write down to zero, the claims for payment of the principal amount, the interest amount, if any, or any other amount or, if applicable, claims for delivery of any property in respect of the Notes; |
| (ii) | convert the Notes into ordinary shares of (A) the Issuer or (B) any group entity or (C) any bridge bank or other instruments of ownership of such entities qualifying as common equity tier one capital (and the issue to or conferral on the Holder (including each Beneficial Owner) of such ordinary shares or instruments); and/or |
| (iii) | apply any other resolution measure, including, but not limited to, (A) any transfer of the Notes to another entity, (B) the amendment, modification or variation of the terms and conditions of the Notes or (C) the cancellation of the Notes; |
(each, a “Resolution Measure”).
For the avoidance of doubt, any non-payment or non-delivery by the Issuer arising out of any such Resolution Measure will not constitute a failure by the Issuer under the terms of the Notes or the Indenture to make a payment of principal of, interest on, or other amounts owing under the Notes. If the Notes provides for delivery of any property, any reference in the Indenture and in the Notes to payment by the Issuer under the Notes shall be deemed to include the delivery of such property.
6
| (b) | By its acquisition of the Notes, the Holder and each Beneficial Owner of the Notes shall be deemed irrevocably to have agreed: |
| (i) | to be bound by, to acknowledge and to accept any Resolution Measure and any amendment, modification or variation of the terms and conditions of the Notes to give effect to any Resolution Measure; |
| (ii) | that it will have no claim or other right against the Issuer arising out of any Resolution Measure; and |
| (iii) | that the imposition of any Resolution Measure will not constitute a default or an Event of Default (A) under the Notes, (B) under the Indenture or (C) for the purpose of, but only to the fullest extent permitted by, the Trust Indenture Act (including, without limitation, Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act) and applicable law. |
| (c) | The terms and conditions of the Notes shall continue to apply in relation to the residual principal amount of, or outstanding amount payable in respect of, the Notes, subject to any modification of the amount of interest payable, if any, to reflect the reduction of the principal amount, and any further modification of the terms that the competent resolution authority may decide in accordance with applicable laws and regulations relating to the resolution of banks, banking group companies, credit institutions and/or investment firms incorporated in the Federal Republic of Germany. |
| (d) | No repayment of any then-current principal amount of the Notes or payment of interest or any other amount thereon (to the extent of the portion thereof affected by the imposition of a Resolution Measure) shall become due and payable after the imposition of any Resolution Measure by the competent resolution authority, unless such repayment or payment would be permitted to be made by the Issuer under the laws and regulations of the Federal Republic of Germany then applicable to the Issuer. |
| (e) | By its acquisition of the Notes, the Holder and each Beneficial Owner of the Notes waives, to the fullest extent permitted by the Trust Indenture Act and applicable law, any and all claims against the Trustee or the Agents for, agrees not to initiate a suit against the Trustee or the Agents in respect of, and agrees that the Trustee and the Agents shall not be liable for, any action that the Trustee or the Agents take, or abstain from taking, in either case in accordance with the imposition of a Resolution Measure by the competent resolution authority with respect to the Notes. |
7
| (f) | Upon the imposition of a Resolution Measure by the competent resolution authority with respect to the Notes, the Issuer shall provide a written notice directly to the Holder in accordance with Section 12.04 of the Indenture as soon as practicable regarding such imposition of a Resolution Measure by the competent resolution authority for purposes of notifying the Holder of such occurrence. The Issuer shall also deliver a copy of such notice to the Trustee and the Agents for information purposes, and the Trustee and the Agents shall be entitled to rely, and will not be liable for relying, on the competent resolution authority and the Resolution Measure identified in such notice. Any delay or failure by the Issuer to give notice shall not affect the validity or enforceability of any Resolution Measure nor the effects thereof on the Notes. |
| (g) | If the Notes are called or are being called for redemption or repurchase by the Issuer, but the competent resolution authority has imposed a Resolution Measure with respect to the Notes prior to the payment of the redemption or repurchase amount, the relevant redemption or repurchase notice, if any, shall be automatically rescinded and shall be of no force and effect, and no payment of the redemption or repurchase amount will be due and payable. |
| (h) | Upon the imposition of any Resolution Measure by the competent resolution authority, the Trustee shall not be required to take any further directions from the Holders under Section 5.09 of the Indenture, which section authorizes Holders of a majority in aggregate principal amount of the debt securities issued under the Indenture at the time Outstanding to direct certain actions relating to such debt securities, and if any such direction was previously given under Section 5.09 of the Indenture to the Trustee by the Holders, it shall automatically cease to be effective, be null and void and have no further effect. The Indenture shall impose no duties, obligations or liabilities upon the Trustee or the Agents whatsoever with respect to the imposition of any Resolution Measure by the competent resolution authority. The Trustee and the Agents shall be fully protected in acting or refraining from acting in accordance with a Resolution Measure. Notwithstanding the foregoing, if, following completion of the imposition of a Resolution Measure by the competent resolution authority, the Notes remains outstanding, then the Trustee’s and each Agent’s duties under the Indenture shall remain applicable with respect to the Notes following such completion to the extent that the Issuer, the Trustee and the Agents agree pursuant to a supplemental indenture, unless the Issuer, the Trustee and the Agents agree that a supplemental indenture is not necessary. |
| (i) | By the acquisition of the Notes, the Holder and each Beneficial Owner of this Note shall be deemed irrevocably to have (i) consented to the imposition of any Resolution Measure as it may be imposed without any prior notice by the competent resolution authority of its decision to exercise such power with respect to the Notes, (ii) authorized, directed and requested the Depositary and any direct participant in the Depositary or other intermediary through which it holds the Notes to take any and all necessary action, if required, to implement the imposition of any Resolution Measure with respect to the Notes as it may be imposed, without any further action or direction on the part of the Holder of the Notes, the Trustee or the Agents and (iii) acknowledged and accepted that the provisions contained in Article 6 of the Indenture are exhaustive on the matters described in Article 6 of the Indenture to the exclusion of any other agreements, arrangements or understandings between it and the Issuer relating to the terms and conditions of the Notes. |
8
| (j) | If the competent resolution authority imposes a Resolution Measure with respect to less than the total outstanding principal amount of the debt securities issued under the Indenture, unless the Trustee or the Agents are otherwise instructed by the Issuer or the competent resolution authority, any cancellation, write-off or conversion into equity made in respect of such debt securities pursuant to the Resolution Measure will be made on a substantially pro rata basis among any series of debt securities issued under the Indenture. |
| (k) | Any obligations of the Holder to indemnify the Trustee and the Agents under the Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or the Notes. To the extent not otherwise precluded by a Resolution Measure, the Issuer’s obligations to indemnify the Trustee and the Agents in accordance with Sections 7.02 and 7.06 of the Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or the Notes. |
The Indenture permits the Issuer and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the debt securities of all series issued under the Indenture then outstanding and affected (voting as one class), to execute supplemental indentures adding any provisions to or changing in any manner the rights of the Holders of each series so affected; provided that the Issuer and the Trustee may not, without the consent of the Holder of each outstanding debt security affected thereby, (a) extend the final maturity of any such debt security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof, or change the currency of payment thereof, or modify or amend the provisions for conversion of any currency into any other currency, or modify or amend the provisions for conversion or exchange of the debt security for securities of the Issuer or other entities or for other property or the cash value of the property, other than as provided in the antidilution provisions or other similar adjustment provisions of the debt securities or otherwise in accordance with the terms thereof (other than, in each case, any financial sector instruments that constitute own funds instruments or eligible liabilities), or impair or affect the rights of any Holder to institute suit for the payment thereof or (b) reduce the aforesaid percentage in principal amount of debt securities the consent of the Holders of which is required for any such supplemental indenture. The Issuer and the Trustee may, without the consent of the Holder of this Note, conform the terms of this Note to the description thereof in the prospectus and prospectus supplements relating to the offering and sale of this Note.
So long as this Note shall be outstanding, the Issuer will cause to be maintained an office or agency for the payment of amounts due or property to be delivered, if any, on this Note as herein provided in the Borough of Manhattan, The City of New York, and an office or agency in said Borough of Manhattan for the registration, transfer and exchange as aforesaid of this Note. If this Note is listed on the London Stock Exchange plc and such exchange so requires, the Issuer shall maintain a Paying Agent in London. If any European Union Directive on the taxation of savings comes into force, the Issuer will, to the extent possible as a matter of law, maintain a Paying Agent in a member state of the European Union that will not be obligated to withhold or deduct tax pursuant to any such Directive or any law implementing or complying with, or introduced in order to conform to, such Directive. The Issuer may designate other agencies for the payment of such amounts or such property at such place or places outside the United States (subject to applicable laws and regulations) as the Issuer may decide. So long as there shall be such an agency, the Issuer shall keep the Trustee advised of the names and locations of such agencies, if any are so designated.
9
With respect to moneys paid by the Issuer and held by the Trustee or any Paying Agent for payment of amounts due, if any, on any Notes that remain unclaimed at the end of two years after such amounts have become due and payable (whether at maturity or upon call for redemption or otherwise), (i) the Trustee or such Paying Agent shall notify the Holders of such Notes that such moneys shall be repaid to the Issuer and any person claiming such moneys shall thereafter look only to the Issuer for payment thereof and (ii) such moneys shall be so repaid to the Issuer. Upon such repayment all liability of the Trustee or such Paying Agent with respect to such moneys shall thereupon cease, without, however, limiting in any way any obligation that the Issuer may have to pay the amounts due, if any, on this Note as the same shall become due.
Subject to the imposition of a Resolution Measure, no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the amount of cash, securities or other property, as determined in accordance with the provisions set forth in the Related Prospectus on each Supplemental Obligation at the time, place, and rate, and in the coin or currency and/or the number of securities or other property, as applicable, prescribed herein and in the Related Prospectus unless otherwise agreed between the Issuer and the registered Holder of this Note.
Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Holder in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of amounts due or property to be delivered, if any, with respect to each Supplemental Obligation evidenced by this Note, for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Issuer or of any successor corporation, either directly or through the Issuer or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
This Note and each Supplemental Obligation evidenced hereby 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 the State of New York, except as may otherwise be required by mandatory provisions of law.
As used herein:
| (a) | the term “Beneficial Owner” shall mean the beneficial owners of the Notes (and any interest therein); |
| (b) | the term “bridge bank” means 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 the event of the imposition of Resolution Measures; |
10
| (c) | the term “competent resolution authority” means any authority with the ability to exercise a Resolution Measure; |
| (d) | the term “group entity” shall mean an entity that is included in the corporate group subject to a Resolution Measure; and |
| (e) | the term “United States” means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction. |
All other terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
11
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM – as tenants in common
TEN ENT – as tenants by the entireties
JT TEN – as joint tenants with right of survivorship and not as tenants in common
| UNIF GIFT MIN ACT – |
|
Custodian |
| |||
| (Minor) | (Cust) |
| Under Uniform Gifts to Minors Act |
|
|||||
| (State) | ||||||
| Additional abbreviations may also be used though not in the above list. | ||||||
12
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and appointing such person attorney to transfer such Note on the books of the Issuer, with full power of substitution in the premises.
Dated:
| NOTICE: | The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever. |
13
EXHIBIT 4.3(b)
FIRST SUPPLEMENTAL SENIOR DEBT FUNDING INDENTURE
AMONG
DEUTSCHE BANK AKTIENGESELLSCHAFT
Issuer
AND
DELAWARE TRUST COMPANY
Trustee
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
Paying Agent, Authenticating Agent, Issuing Agent and Registrar
Dated as of April 26, 2024
Supplemental to the Amended and Restated Senior Debt Funding Indenture
Dated as of August 3, 2021
TABLE OF CONTENTS
| ARTICLE 1 Amendments to the Indenture |
1 | |||
| SECTION 1.01. Amount Unlimited; Issuable in Series |
1 | |||
| SECTION 1.02. Securities Subject to Resolution Measures |
4 | |||
| SECTION 1.03. Supplemental Indentures With Consent of Securityholders |
4 | |||
| SECTION 1.04. New York Law to Govern |
5 | |||
| ARTICLE 2 Miscellaneous Provisions |
5 | |||
| SECTION 2.01. Further Assurances |
5 | |||
| SECTION 2.02. Other Terms of Indenture |
5 | |||
| SECTION 2.03. Terms Defined |
5 | |||
| SECTION 2.04. Governing Law |
5 | |||
| SECTION 2.05. Counterparts; Severability |
5 | |||
| SECTION 2.06. Responsibility of the Trustee |
5 | |||
THIS FIRST SUPPLEMENTAL SENIOR DEBT FUNDING INDENTURE, dated as of April 26, 2024 (this “First Supplemental Senior Debt Funding Indenture”), among DEUTSCHE BANK AKTIENGESELLSCHAFT (the “Issuer”), DELAWARE TRUST COMPANY, as trustee (the “Trustee”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Paying Agent, Authenticating Agent, Issuing Agent and Registrar.
W I T N E S S E T H :
WHEREAS, the Issuer and the Trustee are parties to that certain Amended and Restated Senior Debt Funding Indenture, dated as of August 3, 2021, among the Issuer, the Trustee and Deutsche Bank Trust Company Americas (the “Existing Indenture”; as supplemented by this First Supplemental Senior Debt Funding Indenture, the “Indenture”);
WHEREAS, Section 9.01(c) of the Existing Indenture provides that, without the consent of the Holders of any Securities, the Issuer and the Trustee may enter into indentures supplemental to the Existing Indenture for the purpose of, among other things, making any provisions as the Issuer may deem necessary or desirable; provided that no such action shall adversely affect the interests of the Holders of the Securities or Coupons;
WHEREAS, there are no Outstanding Securities of any series created prior to the execution of this First Supplemental Senior Debt Funding Indenture which are entitled to the benefit of the provisions set forth herein or would be adversely affected by such provisions;
WHEREAS, the Issuer desires and the Trustee, at the request of the Issuer, has agreed to amend Sections 2.03, 6.01, 9.02 and 12.08 of the Existing Indenture solely with respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Debt Funding Indenture;
WHEREAS, the entry into this First Supplemental Senior Debt Funding Indenture by the parties hereto is in all respects authorized by the provisions of the Existing Indenture; and
WHEREAS, all things necessary to make this First Supplemental Senior Debt Funding Indenture a valid, binding and enforceable agreement of the Issuer and the Trustee and a valid supplement to the Existing Indenture have been done;
NOW, THEREFORE:
In consideration of the premises, the Issuer and the Trustee mutually covenant and agree, for the equal and proportionate benefit of the respective Holders from time to time of the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Debt Funding Indenture, as follows:
ARTICLE 1
AMENDMENTS TO THE INDENTURE
SECTION 1.01. Amount Unlimited; Issuable in Series. Solely with respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Debt Funding Indenture, Section 2.03 of the Existing Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and are intended to qualify as eligible liabilities instruments within the meaning of the Article 72(b)(2), with the exception of point (d), CRR for the minimum requirement for own funds and eligible liabilities as applicable to the Issuer.
The obligations under the Securities constitute unsecured and unsubordinated obligations of the Issuer and shall rank pari passu among themselves and with all other unsecured and unsubordinated obligations of the Issuer, subject, however, to statutory priorities conferred on certain unsecured and unsubordinated obligations in the event of any Resolution Measures imposed on the Issuer or in the event of the dissolution, liquidation, insolvency or composition of the Issuer, or if other proceedings are opened for the avoidance of the insolvency of, or against, the Issuer; in accordance with Section 46f(5) of the German Banking Act (Kreditwesengesetz), the obligations of the Issuer under the Securities shall rank in priority to the Issuer’s obligations under (i) any of its debt instruments (Schuldtitel) of the Issuer within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including the obligations under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act (Kreditwesengesetz)) or any successor provision, and (ii) eligible liabilities within the meaning of Articles 72a and 72b(2) CRR.
There shall be established in one or more Board Resolutions, in one or more Officers’ Certificates detailing such establishment or in one or more indentures supplemental hereto, prior to the initial issuance of Securities of any series:
(a) the designation of the Securities of the series, which shall distinguish the Securities of the series from the Securities designation of all other series;
(b) [intentionally omitted];
(c) whether the Issuer may substitute the Office through which the Issuer is acting for all purposes under the Securities of the series;
(d) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09, 2.11, 9.05 or 13.03);
(e) if other than U.S. Dollars, the coin or currency in which the Securities of that series are denominated (including, but not limited to, any Non-U.S. Currency);
(f) the date or dates on which the principal of the Securities of the series is payable (and any provisions relating to postponing or shortening the date on which the principal of the Securities is payable);
2
(g) the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, on which such interest shall be payable and (in the case of Registered Securities) on which a record shall be taken for the determination of Holders to whom interest is payable and/or the method by which such rate or rates or date or dates shall be determined;
(h) the place or places where the principal of and any interest on Securities of the series shall be payable (if other than as provided in Section 3.02);
(i) the right, if any, of the Issuer to redeem, purchase or repay Securities, in whole or in part, at its option and the period or periods within which, the price or prices at which and any terms and conditions, including the Redemption Notice Period, upon which Securities of the series may be so redeemed, purchased or repaid;
(j) [intentionally omitted]
(k) if other than denominations of $1,000 and any integral multiple thereof in the case of Registered Securities, or $1,000 and any integral multiple thereof in the case of Bearer Securities, the denominations in which Securities of the series shall be issuable;
(l) whether the Securities of the series will be issuable as Registered Securities (and if so, whether such Securities will be issuable as Registered Global Securities) or Bearer Securities (with or without Coupons), or any combination of the foregoing, any restrictions applicable to the offer, sale, transfer, exchange or delivery of Bearer Securities or Registered Securities or the payment of interest thereon and, if other than as provided in Section 2.08, the terms upon which Bearer Securities of any series may be exchanged for Registered Securities of such series and vice versa;
(m) whether and under what circumstances the Issuer will pay additional amounts on the Securities of the series in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem such Securities rather than pay such additional amounts;
(n) if the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
(o) any trustees, depositaries, authenticating or Paying Agents, transfer agents or registrars or any other agents with respect to the Securities of such series;
(p) any deletions from, additions to or modifications of the covenants of the Issuer set forth herein with respect to the Securities of such series; and
(q) any other terms of the series.
No subsequent agreement may enhance the seniority of the Issuer’s obligations under the Securities or shorten the term of any of the Securities or any applicable notice period. No
3
Holder may set off or net its claims arising under the Securities against any claims of the Issuer. No collateral or guarantee shall be provided at any time to secure the claims of the Holders under the Securities; any collateral or guarantee already provided or granted in the future in connection with other liabilities of the Issuer may not be used for claims under the Securities. If the Securities are redeemed or repurchased otherwise than in accordance with the terms of the Securities, then the amounts paid must be returned to the Issuer irrespective of any agreement to the contrary.
All Securities of any one series and Coupons, if any, appertaining thereto, shall be substantially identical, except in the case of Registered Securities as to denomination and except as may otherwise be provided by the Board Resolution or Officers’ Certificate referred to above or as set forth in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by such Board Resolution, such Officers’ Certificate or in any such indenture supplemental hereto; provided, however, that additional Securities shall be issued under a separate CUSIP or ISIN number unless the additional Securities are issued pursuant to a “qualified reopening” of the original series, are otherwise treated as part of the same “issue” of debt instruments as the original series or are issued with less than a de minimis amount of original issue discount, in each case for U.S. federal income tax purposes.”
SECTION 1.02. Securities Subject to Resolution Measures. Solely with respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Debt Funding Indenture, the last paragraph of Section 6.01 of the Existing Indenture is hereby amended and restated in its entirety and shall read as follows:
“(k) Any obligations of the Holders to indemnify the Trustee and the Agents under this Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or the Securities. To the extent not otherwise precluded by a Resolution Measure, the Issuer’s obligations to indemnify the Trustee and the Agents in accordance with Sections 7.02 and 7.06 shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or the Securities.”
SECTION 1.03. Supplemental Indentures With Consent of Securityholders. Solely with respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Debt Funding Indenture, Section 9.02 of the Existing Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 9.02. Supplemental Indentures With Consent of Securityholders. With the consent (evidenced as provided in Article 8) of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series affected by such supplemental indenture (voting as one class), the Issuer, when authorized by a resolution of its Board (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order), and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose
4
of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series or of the Coupons appertaining to such Securities; provided, that no such supplemental indenture shall (a) (i) change the final maturity of any Security, (ii) reduce the principal amount thereof, (iii) reduce the rate or change the time of payment of interest thereon, (iv) reduce any amount payable on redemption thereof, (v) make the principal thereof (including any amount in respect of original issue discount), and interest thereon payable in any coin or currency other than that provided in the Securities and Coupons or in accordance with the terms thereof, (vi) modify or amend any provisions for converting any currency into any other currency as provided in the Securities or Coupons or in accordance with the terms thereof, (vii) reduce the amount of the principal of an Original Issue Discount Security that would be provable in bankruptcy pursuant to Section 5.02 or (viii) alter the provisions of Section 12.11 or Section 12.13 or impair or affect the right of any Securityholder to institute suit for the payment thereof or, if the Securities provide therefor, any right of repayment at the option of the Securityholder, in each case without the consent of the Holder of each Security so affected, or (b) reduce the aforesaid percentage of Securities of any series, the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holders of each Security so affected. However, no such indenture supplemental hereto shall be entered into unless such indenture is permitted by relevant laws and regulations and, if applicable, approved by the competent supervisory or resolution authority. No subsequent agreement shall make the principal and interest payable on any Securities or Coupons, as the case may be, payable in different coins or currencies, i.e., the relevant coin or currency must always be identical for the relevant series of Securities and Coupons, as the case may be.”
SECTION 1.04. New York Law to Govern. Solely with respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Debt Funding Indenture, Section 12.08 of the Existing Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 12.08. New York Law to Govern. This Indenture and each Security and Coupon 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 the State of New York, except as may otherwise be required by mandatory provisions of law and except with respect to the provisions in the second and third paragraphs of Section 2.03, relating to the ranking of the Securities, which 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 1.05. Applicability of Article; Approval by Competent Resolution AuthoritySECTION 1.06. . Solely with respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Senior Debt Funding Indenture, Section 13.01 of the Existing Indenture is hereby amended and restated in its entirety and shall read as follows:
5
“Section 13.01. Applicability of Article; Approval by Competent Resolution Authority. The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity. Any redemption of the Securities of any series prior to their scheduled maturity shall be subject to (i) receipt by the Issuer of prior written approval of the competent resolution authority; (ii) there being a change (x) in the regulatory classification of the Securities that would be likely to result in their exclusion in full or in part from our eligible liabilities under the CRR or (y) in the applicable tax treatment of the Securities; and (iii) compliance with any other regulatory requirements. If the Securities are redeemed without prior written approval of such competent resolution authority, then the amounts paid on the Securities must be returned to the Issuer irrespective of any agreement to the contrary.”
ARTICLE 2
MISCELLANEOUS PROVISIONS
SECTION 2.01. Further Assurances. The Issuer will, upon request by the Trustee, execute and deliver such further instruments and do such further acts as may reasonably be necessary or proper to carry out more effectively the purposes of this First Supplemental Senior Debt Funding Indenture.
SECTION 2.02. Other Terms of Indenture. Except insofar as herein otherwise expressly provided, all provisions, terms and conditions of the Existing 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 Existing Indenture shall have the same meanings when used herein.
SECTION 2.04. Governing Law. This First Supplemental Senior Debt Funding Indenture shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the State of New York, except as may otherwise be required by mandatory provisions of law and except with respect to the provisions in the second and third paragraphs of Section 2.03 of the Indenture, relating to the ranking of the Securities, which 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; Severability. This First Supplemental Senior Debt Funding Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective as delivery of a manually executed counterpart of this First Supplemental Senior Debt Funding Indenture. Each of the parties to this First Supplemental Senior Debt Funding Indenture represents that it has undertaken commercially reasonable steps to verify the identity of each individual person executing any such counterparts via electronic signature on behalf of such party and has and will maintain sufficient records of the same. This First Supplemental Senior Debt Funding Indenture shall become effective when each party shall have received a counterpart hereof signed by all of the other parties to this First Supplemental Senior Debt Funding Indenture. If any provision hereof shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
6
SECTION 2.06. Responsibility of the Trustee. The recitals contained herein shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Senior Debt Funding Indenture or the Securities.
[SIGNATURE PAGE FOLLOWS]
7
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Senior Debt Funding Indenture to be duly executed, all as of the date first written above.
| DEUTSCHE BANK AKTIENGESELLSCHAFT | ||
| By: | /s/ Andrew Rivas | |
| Name: Andrew Rivas | ||
| Title: Director | ||
| By: | /s/ VyVy Huynh | |
| Name: VyVy Huynh | ||
| Title: Vice President | ||
| DELAWARE TRUST COMPANY, as Trustee | ||
| By: | /s/ Gregory Daniels | |
| Name: Gregory Daniels | ||
| Title: Vice President | ||
| DEUTSCHE BANK TRUST | ||
| COMPANY AMERICAS, as Paying Agent, Authenticating Agent, Issuing Agent and Registrar | ||
| By: | /s/ Chris Niesz | |
| Name: Chris Niesz | ||
| Title: Vice President | ||
| By: | /s/ Sebastian Hidalgo | |
| Name: Sebastian Hidalgo | ||
| Title: Assistant Vice President | ||
8
Exhibit 4.4
DEUTSCHE BANK AG
Senior Debt Funding Notes, Series E
MASTER NOTE
DATED: April 26, 2024
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.
This Note is a master note, which term means a Registered Global Security with the meaning specified in the Indenture (as defined on the reverse hereof) that provides for incorporation therein of the terms of one or more obligations of Deutsche Bank Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany, if so specified, acting through the office specified in the Related Prospectus (as defined below) (together with its successors and assigns, the “Issuer”), by reference to the Related Prospectuses. Each such obligation of the Issuer is referred to in this Note as a “Supplemental Obligation.”
The terms of each Supplemental Obligation shall be reflected in this Note and in the applicable pricing supplement relating to such Supplemental Obligation (each a “Related Pricing Supplement”) and any product supplement(s), underlying supplement(s), prospectus supplement(s) and prospectus referred to therein (however titled) (together with the Related Pricing Supplement, the “Related Prospectus”). The Issuer shall specify each Related Prospectus in the relevant Issuer Order to the Trustee and the Paying Agent at the time of issuance thereof. With respect to each Supplemental Obligation, the terms of the Supplemental Obligation contained in the Related Prospectus are hereby incorporated by reference in, and shall be deemed to be a part of, this Note for purposes of the applicable Supplemental Obligation only as of the original issue date specified in the relevant Related Pricing Supplement; provided, however, that for the avoidance of doubt, no hypothetical examples, risk factors, historical information, descriptions of underlying(s) or other information not considered to be terms of such Supplemental Obligation provided or incorporated by reference in the Related Prospectus shall be used to determine the terms of such Supplemental Obligation. Each Related Prospectus is on file with the Trustee and/or the Paying Agent referred to on the reverse hereof and is identified in the records of the Trustee and/or the Paying Agent.
With respect to each Supplemental Obligation evidenced by this Note, the Issuer, for value received, hereby promises to pay to Cede & Co., or registered assignees, the amounts due, in cash, together with unpaid accrued interest thereon, if any, in each case as specified in the Related Prospectus, on the date or dates specified in the Related Prospectus.
1
All terms used in this Note that are or will be defined in the Indenture or Related Prospectus shall have the meanings assigned to them therein. In relation to a particular Supplemental Obligation, in the event of any inconsistency between the definitions in the Indenture and the definitions in the Related Prospectus, the definitions in the Related Prospectus shall govern.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. With respect to each Supplemental Obligation, every term of this Note is subject to modification, amendment or elimination through the incorporation of the applicable Related Prospectus by reference, whether or not the phrase “unless otherwise provided in the Related Prospectus” or language of similar import precedes the term of this Note so modified, amended or eliminated; provided however that no modification, amendment or elimination through the incorporation of the applicable Related Prospectus by reference shall affect the rights or obligations of the Trustee without its prior written consent. It is the intent of the parties hereto that, in the case of any conflict between the applicable Related Prospectus and the terms herein, the Related Prospectus shall control over the terms herein with respect to the relevant Supplemental Obligation. Without limiting the foregoing, in the case of each Supplemental Obligation, the holders of this Note are directed to the applicable Related Prospectus for a description of certain terms of such Supplemental Obligation, including the manner of determining the amounts due on such Supplemental Obligation and the date or dates, if any, on which amounts due on such Supplemental Obligation are to be paid.
The principal amount of each Supplemental Obligation evidenced by this Note shall be as specified in the applicable Related Pricing Supplement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, acting on behalf of the Trustee, referred to on the reverse hereof by manual or electronic signature (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com), this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. Authentication of this Note by the Authenticating Agent shall be deemed to be due authentication pursuant to Section 2.06 of the Indenture with respect to each Supplemental Obligation evidenced by this Note and the execution and delivery of a written order of the Issuer with respect to a Supplemental Obligation by any two Authorized Signatories shall be deemed to be due execution pursuant to Section 2.05 of the Indenture with respect to such Supplemental Obligation.
2
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed as of the date first set forth above.
| DEUTSCHE BANK AG | ||
| By: | /s/ Andrew Rivas | |
| Name: Andrew Rivas | ||
| Title: Director | ||
| By: | /s/ VyVy Huynh | |
| Name: VyVy Huynh | ||
| Title: Vice President | ||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, | ||
| as Paying Agent, only with respect to its role to reflect Supplemental Obligations in its records | ||
| By: | /s/ Chris Niesz | |
| Name: Chris Niesz | ||
| Title: Vice President | ||
| By: | /s/ Sebastian Hidalgo | |
| Name: Sebastian Hidalgo | ||
| Title: Assistant Vice President | ||
| CERTIFICATE OF AUTHENTICATION
This Note is one of the Securities referred to in the within-mentioned Indenture.
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Authenticating Agent | ||
| By: | /s/ Chris Niesz | |
| Authorized Officer | ||
3
REVERSE OF NOTE
This Note represents one or more duly authorized Supplemental Obligations of Senior Debt Funding Notes, Series E of the Issuer (the “Notes”). The Notes are issuable under an Amended and Restated Senior Debt Funding Indenture, dated as of August 3, 2021, among the Issuer, Delaware Trust Company, as trustee (the “Trustee,” which term includes any successor trustee under the Indenture), and Deutsche Bank Trust Company Americas (“DBTCA”), as paying agent, authenticating agent, issuing agent and registrar, as amended and supplemented by the First Supplemental Senior Debt Funding Indenture dated as of April 26, 2024 (as amended or supplemented from time to time, the “Indenture”), to which Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities of the Issuer, the Trustee and Holders of the Notes and the terms upon which the Notes are, and are to be, authenticated and delivered. The Issuer has appointed DBTCA acting through its principal corporate trust office in the Borough of Manhattan, The City of New York, as its paying agent (the “Paying Agent,” which term includes any additional or successor Paying Agent appointed by the Issuer) with respect to the Notes. The Issuer has appointed DBTCA as the authenticating agent (the “Authenticating Agent,” which term includes any additional or successor Authenticating Agent appointed by the Issuer) to act on behalf of the Trustee to authenticate the Notes. The terms of individual Notes may vary with respect to interest rates, interest rate formulas, issue dates, maturity dates, or otherwise, all as provided in the Indenture. To the extent not inconsistent herewith, the terms of the Indenture are hereby incorporated by reference herein.
Unless otherwise provided in the Related Prospectus, a Supplemental Obligation will not be subject to any sinking fund. Unless otherwise provided in the Related Prospectus, a Supplemental Obligation will not be redeemable by the Issuer or subject to repayment at the option of the Holder prior to maturity.
The Notes are intended to qualify as eligible liabilities instruments within the meaning of Article 72b(2), with the exception of point (d), CRR, for the minimum requirement for own funds and eligible liabilities as applicable to the Issuer.
The obligations under the Notes constitute unsecured and unsubordinated obligations of the Issuer and shall rank pari passu among themselves and with all other unsecured and unsubordinated obligations of the Issuer, subject, however, to statutory priorities conferred on certain unsecured and unsubordinated obligations in the event of any Resolution Measures imposed on the Issuer or in the event of the dissolution, liquidation, insolvency or composition of the Issuer, or if other proceedings are opened for the avoidance of the insolvency of, or against, the Issuer; in accordance with Section 46f(5) of the German Banking Act (Kreditwesengesetz), the obligations of the Issuer under the Notes shall rank in priority to the Issuer’s obligations under (i) any of its debt instruments (Schuldtitel) of the Issuer within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including the obligations under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act (Kreditwesengesetz)) or any successor provision, and (ii) eligible liabilities within the meaning of Articles 72a and 72b(2) CRR.
4
No subsequent agreement may enhance the seniority of the Issuer’s obligations under the Notes or shorten the term of any of the Notes or any applicable notice period. No Holder may set off or net its claims arising under the Notes against any claims of the Issuer. No collateral or guarantee shall be provided at any time to secure the claims of the Holders under the Notes; any collateral or guarantee already provided or granted in the future in connection with other liabilities of the Issuer may not be used for claims under the Notes. If the Notes are redeemed or repurchased otherwise than in accordance with the terms of the Notes, then the amounts paid must be returned to the Issuer irrespective of any agreement to the contrary.
This Note, and any Note or Notes issued upon transfer or exchange hereof, is issuable only in fully registered form, without coupons, and each Supplemental Obligation is issued in the minimum denomination and any integral multiples thereof as specified in the Related Prospectus.
If “Office Substitution” is applicable to a Supplemental Obligation as specified in the Related Prospectus, the Issuer may at any time, without the consent of the Holders or the Trustee, designate another Office of the Issuer as substitute for the Office through which the Issuer has acted to issue such Supplemental Obligation with the same effect as if such substitute Office had been originally named as the Office through which the Issuer had acted to issue such Supplemental Obligation for all purposes under the Indenture and the Notes. In order to give effect to such substitution, the Issuer shall give notice of such substitution to the Trustee and the Holders of such Supplemental Obligation. With effect from the substitution date, such substitute Office shall, without any amendment to this Note or entry into any supplemental indenture, assume all of the obligations of the originally-named Office as principal obligor under such Supplemental Obligation. “Office” means the Issuer’s head office or one of the Issuer’s branch offices.
DBTCA has been appointed Registrar for the Notes, and DBTCA will maintain at its office in The City of New York, a register for the registration and transfer of Notes. This Note may be transferred at either the aforesaid New York office of DBTCA by surrendering this Note for cancellation, accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Trustee and the Authenticating Agent and duly executed by the registered Holder hereof in person or by the Holder’s attorney duly authorized in writing, and thereupon the Trustee or the Authenticating Agent shall authenticate and deliver in the name of the transferee or transferees, in exchange herefor, a new Note or Notes having identical terms and provisions and having a like aggregate principal amount in authorized denominations, subject to the terms and conditions set forth herein; provided, however, that neither the Trustee nor the Authenticating Agent will be required to (i) register the transfer of or exchange any Note that has been called for redemption in whole or in part, except the unredeemed portion of Notes being redeemed in part or (ii) register the transfer of or exchange Notes to the extent and during the period so provided in the Indenture with respect to the redemption of Notes. Notes are exchangeable at said offices for other Notes of other authorized denominations of equal aggregate principal amount having identical terms and provisions. All such registrations, exchanges and transfers of Notes will be free of service charge, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge in connection therewith. All Notes surrendered for exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Trustee and the Authenticating Agent and executed by the registered Holder in person or by the Holder’s attorney duly authorized in writing. The date of registration of any Note delivered upon any exchange or transfer of Notes shall be such that no gain or loss of interest results from such exchange or transfer.
5
In case this Note shall at any time become mutilated, defaced or be destroyed, lost or stolen and this Note or evidence of the loss, theft or destruction thereof (together with the indemnity hereinafter referred to and such other documents or proof as may be required in the premises) shall be delivered to the Trustee and the Authenticating Agent, the Issuer in its discretion may execute a new Note of like tenor in exchange for this Note, but, in the case of any destroyed or lost or stolen Note, only upon receipt of evidence satisfactory to the Trustee, the Authenticating Agent and the Issuer that this Note was destroyed or lost or stolen and, if required, upon receipt also of indemnity satisfactory to each of them. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the owner of the Note mutilated, defaced, destroyed, lost or stolen.
An “Event of Default” with respect to a Supplemental Obligation means the opening of insolvency proceedings against the Issuer by a German court having jurisdiction over the Issuer. There are no other events of default under a Supplemental Obligation. If an Event of Default with respect to a Supplemental Obligation occurs and is continuing, then, unless the principal of such Supplemental Obligation shall have already become due and payable, either the Trustee or the Holder of not less than 33 1/3% in aggregate principal amount of all outstanding debt securities issued under the Indenture (treated as one class), by notice in writing to the Issuer (and to the Trustee if given by Holders), may declare the principal amount of such Supplemental Obligation and interest accrued thereon to be due and payable immediately in accordance with the terms of the Indenture.
Subject to Section 5.02 of the Indenture, the Indenture provides for no right of acceleration in the case of a default in the payment of principal of, or interest on, or other amounts owing under a Supplemental Obligation or a default in the performance of any other covenant of the Issuer under a Supplemental Obligation or the Indenture (any such default in payment or default in performance, a “default”).
If an Event of Default or a default with respect to a Supplemental Obligation occurs and is continuing, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered (but not obligated) to pursue any available remedy by proceedings at law or in equity to collect any principal of and interest on such Supplemental Obligation due and unpaid, or to enforce the performance of any provision of such Supplemental Obligation or the Indenture, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon such Supplemental Obligation and collect in the manner provided by law out of the property of the Issuer or other obligor upon such Supplemental Obligation, wherever situated, the monies adjudged or decreed to be payable.
If the Related Prospectus specifies that a Supplemental Obligation is subject to “Redemption for Regulatory Reasons,” then the Issuer may redeem such Supplemental Obligation in whole, but not in part, solely at the option of the Issuer at any time prior to the maturity date specified in the Related Prospectus at 100% of the applicable principal amount (subject to the imposition of a Resolution Measure) together with any accrued and unpaid interest to (but excluding) the date of redemption. Any redemption of a Supplemental Obligation prior to its scheduled maturity shall be subject to (i) receipt by the Issuer of the prior written approval of the competent resolution authority; (ii) there being a change in the regulatory classification of the Supplemental Obligation that would be likely to result in its exclusion in full or in part from our eligible liabilities under the CRR; and (iii) compliance with any other regulatory requirements. If a Supplemental Obligation is redeemed without prior written approval of the competent resolution authority, then the amounts paid on such a Supplemental Obligation must be returned to the Issuer
6
irrespective of any agreement to the contrary. Notice of redemption will be given not less than 30 calendar days nor more than 60 calendar days prior to the date fixed for redemption or within the Redemption Notice Period specified in the Related Prospectus, which date and the applicable redemption price will be specified in the Notice.
The terms and conditions set forth in the following paragraphs (a) – (k) shall apply to the Notes, and by acquiring the Notes, the Holder and each Beneficial Owner of the Notes shall be bound by and shall be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority.
| (a) | Under the relevant resolution laws and regulations as applicable to the Issuer from time to time, the Notes may be subject to the powers exercised by the competent resolution authority to: |
| (i) | write down, including write down to zero, the claims for payment of the principal amount, the interest amount, if any, or any other amount in respect of the Notes; |
| (ii) | convert the Notes into ordinary shares of (A) the Issuer or (B) any group entity or (C) any bridge bank or other instruments of ownership of such entities qualifying as common equity tier one capital (and the issue to or conferral on the Holder (including each Beneficial Owner) of such ordinary shares or instruments); and/or |
| (iii) | apply any other resolution measure, including, but not limited to, (A) any transfer of the Notes to another entity, (B) the amendment, modification or variation of the terms and conditions of the Notes or (C) the cancellation of the Notes; |
(each, a “Resolution Measure”).
For the avoidance of doubt, any non-payment by the Issuer arising out of any such Resolution Measure will not constitute a failure by the Issuer under the terms of the Notes or the Indenture to make a payment of principal of, interest on, or other amounts owing under the Notes.
| (b) | By its acquisition of the Notes, the Holder (including each Beneficial Owner) of the Notes shall be deemed irrevocably to have agreed: |
| (i) | to be bound by, to acknowledge and to accept any Resolution Measure and any amendment, modification or variation of the terms and conditions of the Notes to give effect to any Resolution Measure; |
| (ii) | that it will have no claim or other right against the Issuer arising out of any Resolution Measure; and |
7
| (iii) | that the imposition of any Resolution Measure will not constitute an Event of Default or a default (A) under the Notes, (B) under the Indenture or (C) for the purpose of, but only to the fullest extent permitted by, the Trust Indenture Act (including, without limitation, Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act) and applicable law. |
| (c) | The terms and conditions of the Notes shall continue to apply in relation to the residual principal amount of, or outstanding amount payable in respect of, the Notes, subject to any modification of the amount of interest payable, if any, to reflect the reduction of the principal amount, and any further modification of the terms that the competent resolution authority may decide in accordance with applicable laws and regulations relating to the resolution of banks, banking group companies, credit institutions and/or investment firms incorporated in the Federal Republic of Germany. |
| (d) | No repayment of any then-current principal amount of the Notes or payment of interest or any other amount thereon (to the extent of the portion thereof affected by the imposition of a Resolution Measure) shall become due and payable after the imposition of any Resolution Measure by the competent resolution authority, unless such repayment or payment would be permitted to be made by the Issuer under the laws and regulations of the Federal Republic of Germany then applicable to the Issuer. |
| (e) | By its acquisition of the Notes, the Holder (and each Beneficial Owner) of the Notes waives, to the fullest extent permitted by the Trust Indenture Act and applicable law, any and all claims against the Trustee or the Agents for, agrees not to initiate a suit against the Trustee or the Agents in respect of, and agrees that the Trustee and the Agents shall not be liable for, any action that the Trustee or the Agents take, or abstain from taking, in either case in accordance with the imposition of a Resolution Measure by the competent resolution authority with respect to the Notes. |
| (f) | Upon the imposition of a Resolution Measure by the competent resolution authority with respect to the Notes, the Issuer shall provide a written notice directly to the Holder in accordance with Section 12.04 of the Indenture as soon as practicable regarding such imposition of a Resolution Measure by the competent resolution authority for purposes of notifying the Holder of such occurrence. The Issuer shall also deliver a copy of such notice to the Trustee and the Agents for information purposes, and the Trustee and the Agents shall be entitled to rely, and will not be liable for relying, on the competent resolution authority and the Resolution Measure identified in such notice. Any delay or failure by the Issuer to give notice shall not affect the validity or enforceability of any Resolution Measure nor the effects thereof on the Notes. |
| (g) | If the Notes are called or are being called for redemption by the Issuer, but the competent resolution authority has imposed a Resolution Measure with respect to the Notes prior to the payment of the redemption amount, the relevant redemption notice, if any, shall be automatically rescinded and shall be of no force and effect, and no payment of the redemption amount will be due and payable. |
8
| (h) | Upon the imposition of any Resolution Measure by the competent resolution authority, the Trustee shall not be required to take any further directions from the Holders under Section 5.09 of the Indenture, which section authorizes Holders of a majority in aggregate principal amount of the debt securities issued under the Indenture at the time Outstanding to direct certain actions relating to such debt securities, and if any such direction was previously given under Section 5.09 of the Indenture to the Trustee by the Holders, it shall automatically cease to be effective, be null and void and have no further effect. The Indenture shall impose no duties, obligations or liabilities upon the Trustee or the Agents whatsoever with respect to the imposition of any Resolution Measure by the competent resolution authority. The Trustee and the Agents shall be fully protected in acting or refraining from acting in accordance with a Resolution Measure. Notwithstanding the foregoing, if, following completion of the imposition of a Resolution Measure by the competent resolution authority, the Notes remains outstanding, then the Trustee’s and each Agent’s duties under the Indenture shall remain applicable with respect to the Notes following such completion to the extent that the Issuer, the Trustee and the Agents agree pursuant to a supplemental indenture, unless the Issuer, the Trustee and the Agents agree that a supplemental indenture is not necessary. |
| (i) | By the acquisition of the Notes, the Holder and each Beneficial Owner of this Note shall be deemed irrevocably to have (i) consented to the imposition of any Resolution Measure as it may be imposed without any prior notice by the competent resolution authority of its decision to exercise such power with respect to the Notes, (ii) authorized, directed and requested the Depositary and any direct participant in the Depositary or other intermediary through which it holds the Notes to take any and all necessary action, if required, to implement the imposition of any Resolution Measure with respect to the Notes as it may be imposed, without any further action or direction on the part of the Holder of the Notes, the Trustee or the Agents and (iii) acknowledged and accepted that the provisions contained in Article 6 of the Indenture are exhaustive on the matters described in Article 6 of the Indenture to the exclusion of any other agreements, arrangements or understandings between it and the Issuer relating to the terms and conditions of the Notes. |
| (j) | If the competent resolution authority imposes a Resolution Measure with respect to less than the total outstanding principal amount of the debt securities issued under the Indenture, unless the Trustee or the Agents are otherwise instructed by the Issuer or the competent resolution authority, any cancellation, write-off or conversion into equity made in respect of such debt securities pursuant to the Resolution Measure will be made on a substantially pro rata basis among any series of debt securities issued under the Indenture. |
| (k) | Any obligations of the Holder to indemnify the Trustee and the Agents under the Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or the Notes. To the extent not otherwise precluded by a Resolution Measure, the Issuer’s obligations to indemnify the Trustee and the Agents in accordance with Sections 7.02 and 7.06 of the Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or the Notes. |
9
The Indenture permits the Issuer and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the debt securities of all series issued under the Indenture then outstanding and affected (voting as one class), to execute supplemental indentures adding any provisions to or changing in any manner the rights of the Holders of each series so affected; provided that the Issuer and the Trustee may not, without the consent of the Holder of each outstanding debt security affected thereby, (a) extend the final maturity of any such debt security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof, or change the currency of payment thereof, or modify or amend the provisions for conversion of any currency into any other currency, or impair or affect the rights of any Holder to institute suit for the payment thereof or (b) reduce the aforesaid percentage in principal amount of debt securities the consent of the Holders of which is required for any such supplemental indenture. No subsequent agreement shall make the principal and interest payable on any series of debt securities payable in different coins or currencies, i.e., the relevant coin or currency must always be identical for the relevant series of debt securities.
So long as this Note shall be outstanding, the Issuer will cause to be maintained an office or agency for the payment of amounts due on this Note as herein provided in the United States, and an office or agency in the United States for the registration, transfer and exchange as aforesaid of this Note. The Issuer may designate other agencies for the payment of such amounts at such place or places outside the United States (subject to applicable laws and regulations) as the Issuer may decide. So long as there shall be such an agency, the Issuer shall keep the Trustee advised of the names and locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or any Paying Agent for payment of amounts due, if any, on any Notes that remain unclaimed at the end of two years after such amounts have become due and payable (whether at maturity or upon call for redemption or otherwise), (i) the Trustee or such Paying Agent shall notify the Holders of such Notes that such moneys shall be repaid to the Issuer and any person claiming such moneys shall thereafter look only to the Issuer for payment thereof and (ii) such moneys shall be so repaid to the Issuer. Upon such repayment all liability of the Trustee or such Paying Agent with respect to such moneys shall thereupon cease, without, however, limiting in any way any obligation that the Issuer may have to pay the amounts due, if any, on this Note as the same shall become due.
Subject to the imposition of a Resolution Measure, no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the amount of cash, as determined in accordance with the provisions set forth in the Related Prospectus on each Supplemental Obligation at the time, place, and rate, and in the coin or currency prescribed herein and in the Related Prospectus unless otherwise agreed between the Issuer and the registered Holder of this Note.
Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Holder in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Trustee or any such agent shall be affected by notice to the contrary.
10
No recourse shall be had for the payment of amounts due with respect to each Supplemental Obligation evidenced by this Note, for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Issuer or of any successor corporation, either directly or through the Issuer or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
This Note and each Supplemental Obligation evidenced hereby 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 the State of New York, except as may otherwise be required by mandatory provisions of law and except with respect to the provisions in the third and fourth paragraphs of the reverse of this Note, relating to the ranking of the Notes, which 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.
As used herein:
| (a) | the term “Beneficial Owner” shall mean the beneficial owners of the Notes (and any interest therein); |
| (b) | the term “bridge bank” means 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 the event of the imposition of Resolution Measures; |
| (c) | the term “competent resolution authority” means any authority with the ability to exercise a Resolution Measure; |
| (d) | the term “CRR” means Regulation (EU) No 575/2013 of the European Parliament and the Council of June 26, 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (including any provisions of regulatory law supplementing this Regulation); to the extent that any provisions of the CRR are amended or replaced, the term CRR as used in this Note shall refer to such amended provisions or successor provisions; |
| (e) | the term “group entity” shall mean an entity that is included in the corporate group subject to a Resolution Measure; and |
| (f) | the term “United States” means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction. |
All other terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
11
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM – as tenants in common
TEN ENT – as tenants by the entireties
JT TEN – as joint tenants with right of survivorship and not as tenants in common
| UNIF GIFT MIN ACT – |
|
Custodian |
| |||
| (Minor) | (Cust) |
| Under Uniform Gifts to Minors Act |
|
|||||
| (State) | ||||||
| Additional abbreviations may also be used though not in the above list. | ||||||
12
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and appointing such person attorney to transfer such Note on the books of the Issuer, with full power of substitution in the premises.
Dated:
| NOTICE: | The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever. |
13
EXHIBIT 4.5(b)
FIRST SUPPLEMENTAL ELIGIBLE LIABILITIES
SENIOR INDENTURE
AMONG
DEUTSCHE BANK AKTIENGESELLSCHAFT
Issuer
AND
THE BANK OF NEW YORK MELLON
Trustee
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
Paying Agent, Authenticating Agent, Issuing Agent and Registrar
Dated as of April 26, 2024
Supplemental to the Amended and Restated Eligible Liabilities Senior Indenture
Dated as of August 3, 2021
TABLE OF CONTENTS
| ARTICLE 1 Amendments to the Indenture |
1 | |||||
| SECTION 1.01. |
Amount Unlimited; Issuable in Series | 1 | ||||
| SECTION 1.02. |
Securities Subject to Resolution Measures | 4 | ||||
| SECTION 1.03. |
Supplemental Indentures With Consent of Securityholders | 5 | ||||
| SECTION 1.04. |
Notices and Demands on Issuer, Trustee and Holders of Securities and Coupons | 5 | ||||
| SECTION 1.05. |
New York Law to Govern | 7 | ||||
| ARTICLE 2 Miscellaneous Provisions |
8 | |||||
| SECTION 2.01. |
Further Assurances | 8 | ||||
| SECTION 2.02. |
Other Terms of Indenture | 8 | ||||
| SECTION 2.03. |
Terms Defined | 8 | ||||
| SECTION 2.04. |
Governing Law | 8 | ||||
| SECTION 2.05. |
Counterparts | 9 | ||||
| SECTION 2.06. |
Responsibility of the Trustee | 9 | ||||
THIS FIRST SUPPLEMENTAL ELIGIBLE LIABILITIES SENIOR INDENTURE, dated as of April 26, 2024 among DEUTSCHE BANK AKTIENGESELLSCHAFT (the “Issuer”), THE BANK OF NEW YORK MELLON, as trustee (the “Trustee”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Paying Agent, Authenticating Agent, Issuing Agent and Registrar.
W I T N E S S E T H :
WHEREAS, the Issuer and the Trustee are parties to that certain Amended and Restated Eligible Liabilities Senior Indenture, dated as of August 3, 2021, among the Issuer, the Trustee and Deutsche Bank Trust Company Americas (the “Indenture”);
WHEREAS, Section 9.01(c) of the Indenture provides that, without the consent of the Holders of any Securities, the Issuer and the Trustee may enter into indentures supplemental to the Indenture for the purpose of, among other things, making any provisions as the Issuer may deem necessary or desirable; provided that no such action shall adversely affect the interests of the Holders of the Securities or Coupons;
WHEREAS, there are no Outstanding Securities of any series created prior to the execution of this First Supplemental Eligible Liabilities Senior Indenture which are entitled to the benefit of the provisions set forth herein or would be adversely affected by such provisions;
WHEREAS, the Issuer desires and the Trustee has agreed to amend Sections 2.03, 6.01, 9.02 and 12.08 of the Indenture with respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Eligible Liabilities Senior Indenture;
WHEREAS, the entry into this First Supplemental Eligible Liabilities Senior Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture; and
WHEREAS, all things necessary to make this First Supplemental Eligible Liabilities Senior Indenture a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises, the Issuer and the Trustee mutually covenant and agree, for the equal and proportionate benefit of the respective Holders from time to time of the Securities, as follows:
ARTICLE 1
AMENDMENTS TO THE INDENTURE
SECTION 1.01. Amount Unlimited; Issuable in Series. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Eligible Liabilities Senior Indenture, Section 2.03 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and are intended to qualify as eligible liabilities instruments within the meaning of Articles 72a and 72b(2) of the CRR for the minimum requirement for own funds and eligible liabilities as applicable to the Issuer.
Status. The obligations under the Securities constitute unsecured and unsubordinated non-preferred obligations of the Issuer under debt instruments (Schuldtitel) within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) or any successor provision. The obligations of the Issuer under the Securities shall rank pari passu among themselves and with all other unsecured and unsubordinated non-preferred obligations under debt instruments of the Issuer within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including the obligations under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act (Kreditwesengesetz)) or any successor provision.
In accordance with Section 46f(5) of the German Banking Act (Kreditwesengesetz), in the event of any Resolution Measures imposed on the Issuer or in the event of the dissolution, liquidation, insolvency or composition of the Issuer, or if other proceedings are opened for the avoidance of the insolvency of, or against, the Issuer, the obligations of the Issuer under the Securities shall rank junior to (i) the claims of unsubordinated creditors of the Issuer not qualifying as obligations under debt instruments (Schuldtitel) of the Issuer within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including the obligations under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act (Kreditwesengesetz)) or any successor provision, and (ii) eligible liabilities within the meaning of Article 72b(2) CRR where point (d) of such Article does not apply. In any such event, no amounts shall be payable in respect of the Securities until the claims of such unsubordinated creditors of the Issuer have been satisfied in full.
Notwithstanding anything to the contrary set forth herein, but to the extent not otherwise precluded by a Resolution Measure or the application of mandatory aspects of insolvency law, the prior claims against the Issuer under Section 7.06 of this Indenture shall constitute unsubordinated obligations of the Issuer that rank senior to the unsubordinated non-preferred obligations of the Issuer under the Securities as described above, and shall survive the imposition of a Resolution Measure by the competent resolution authority in the priority set forth in Section 5.03 hereof, in each case.
There shall be established in one or more Board Resolutions, in one or more Officers’ Certificates detailing such establishment or in one or more indentures supplemental hereto, prior to the initial issuance of Securities of any series:
(a) the designation of the Securities of the series, which shall distinguish the Securities of the series from the Securities of all other series;
(b) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09, 2.11, 9.05 or 13.03);
2
(c) if other than U.S. Dollars, the coin or currency in which the Securities of that series are denominated (including, but not limited to, any Non-U.S. Currency);
(d) the date or dates on which the principal of the Securities of the series is payable (and any provisions relating to postponing or shortening the date on which the principal of the Securities is payable);
(e) the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, on which such interest shall be payable and (in the case of Registered Securities) on which a record shall be taken for the determination of Holders to whom interest is payable and/or the method by which such rate or rates or date or dates shall be determined;
(f) the place or places where the principal of and any interest on Securities of the series shall be payable (if other than as provided in Section 3.02);
(g) the right, if any, of the Issuer to redeem, purchase or repay Securities, in whole or in part, at its option and the period or periods within which, the price or prices at which and any terms and conditions, including the Redemption Notice Period, upon which Securities of the series may be so redeemed, purchased or repaid;
(h) [intentionally omitted]
(i) if other than denominations of $200,000 and any integral multiples of $1,000 in excess thereof in the case of Registered Securities, or $1,000 and any integral multiple thereof in the case of Bearer Securities, the denominations in which Securities of the series shall be issuable;
(j) whether the Securities of the series will be issuable as Registered Securities (and if so, whether such Securities will be issuable as Registered Global Securities) or Bearer Securities (with or without Coupons), or any combination of the foregoing, any restrictions applicable to the offer, sale, transfer, exchange or delivery of Bearer Securities or Registered Securities or the payment of interest thereon and, if other than as provided in Section 2.08, the terms upon which Bearer Securities of any series may be exchanged for Registered Securities of such series and vice versa;
(k) whether and under what circumstances the Issuer will pay additional amounts on the Securities of the series in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem such Securities rather than pay such additional amounts;
(l) if the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
3
(m) any trustees, depositaries, authenticating or Paying Agents, transfer agents or registrars or any other agents with respect to the Securities of such series;
(n) any deletions from, additions to or modifications of the covenants of the Issuer set forth herein with respect to the Securities of such series; and
(o) any other terms of the series.
No subsequent agreement may enhance the seniority of the Issuer’s obligations under the Securities or shorten the term of any of the Securities or any applicable notice period. No Holder may set off or net its claims arising under the Securities against any claims of the Issuer. No collateral or guarantee shall be provided at any time to secure the claims of the Holders under the Securities; any collateral or guarantee already provided or granted in the future in connection with other liabilities of the Issuer may not be used for claims under the Securities. If the Securities are redeemed or repurchased otherwise than in accordance with the terms of the Securities, then the amounts paid must be returned to the Issuer irrespective of any agreement to the contrary.
All Securities of any one series and Coupons, if any, appertaining thereto, shall be substantially identical, except in the case of Registered Securities as to denomination and except as may otherwise be provided by the Board Resolution or Officers’ Certificate referred to above or as set forth in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by such Board Resolution, such Officers’ Certificate or in any such indenture supplemental hereto; provided, however, that additional Securities shall be issued under a separate CUSIP or ISIN number unless the additional Securities are issued pursuant to a “qualified reopening” of the original series, are otherwise treated as part of the same “issue” of debt instruments as the original series or are issued with less than a de minimis amount of original issue discount, in each case for U.S. federal income tax purposes.”
SECTION 1.02. Securities Subject to Resolution Measures. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Eligible Liabilities Senior Indenture, the last paragraph Section 6.01 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“(k) Any obligations of the Holders to indemnify the Trustee and the Agents under this Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or the Securities. To the extent not otherwise specifically precluded by a Resolution Measure (whether or not such Resolution Measure is expressly referring to the relevant indemnities or is precluding the relevant indemnities generally), the Issuer’s obligations to indemnify the Trustee and the Agents in accordance with Sections 7.02 and 7.06 shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or the Securities. For the avoidance of doubt, any and all amounts due and owing to the Trustee under any provision of the 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 Indenture.”
4
SECTION 1.03. Supplemental Indentures With Consent of Securityholders. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Eligible Liabilities Senior Indenture, Section 9.02 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 9.02. Supplemental Indentures With Consent of Securityholders. With the consent (evidenced as provided in Article 8) of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series affected by such supplemental indenture (voting as one class), the Issuer, when authorized by a resolution of its Board (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order), and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series or of the Coupons appertaining to such Securities; provided, that no such supplemental indenture shall (a) (i) change the final maturity of any Security, (ii) reduce the principal amount thereof, (iii) reduce the rate or change the time of payment of interest thereon, (iv) reduce any amount payable on redemption thereof, (v) make the principal thereof (including any amount in respect of original issue discount), and interest thereon payable in any coin or currency other than that provided in the Securities and Coupons or in accordance with the terms thereof, (vi) modify or amend any provisions for converting any currency into any other currency as provided in the Securities or Coupons or in accordance with the terms thereof, (vii) reduce the amount of the principal of an Original Issue Discount Security that would be provable in bankruptcy pursuant to Section 5.02 or (viii) alter the provisions of Section 12.12 or Section 12.14 or impair or affect the right of any Securityholder to institute suit for the payment thereof or, if the Securities provide therefor, any right of repayment at the option of the Securityholder, in each case without the consent of the Holder of each Security so affected, or (b) reduce the aforesaid percentage of Securities of any series, the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holders of each Security so affected. However, no such indenture supplemental hereto shall be entered into unless such indenture is permitted by relevant laws and regulations and, if applicable, approved by the competent supervisory or resolution authority. No subsequent agreement shall make the principal and interest payable on any Securities or Coupons, as the case may be, payable in different coins or currencies, i.e., the relevant coin or currency must always be identical for the relevant series of Securities and Coupons, as the case may be.”
SECTION 1.04. Notices and Demands on Issuer, Trustee and Holders of Securities and Coupons. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Eligible Liabilities Senior Indenture, Section 12.04 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
5
“Section 12.04. Notices and Demands on Issuer, Trustee and Holders of Securities and Coupons. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities or Coupons to or on the Issuer may be given or served by being deposited postage prepaid, first-class mail or by overnight delivery (except as otherwise specifically provided herein) addressed (until another address of the Issuer is filed by the Issuer with the Trustee) to Deutsche Bank Americas, c/o Office of the Corporate Secretary, 1 Columbus Circle, Mail Stop NYC01-1950, New York, New York 10019-8735. Any notice, direction, request or demand by the Issuer or any Holder of Securities or Coupons to or upon the Trustee shall be deemed to have been sufficiently given or served by being deposited postage prepaid, first-class mail or by overnight delivery (except as otherwise specifically provided herein) addressed (until another address of the Trustee is filed by the Trustee with the Issuer) to:
| The Bank of New York Mellon 500 Ross Street, 12th Floor Pittsburgh, Pennsylvania 15626 Attention: Corporate Trust Administration — Deutsche Bank Eligible Liabilities Senior Indenture Email: rebecca.norton@bnymellon.com | ||
| If to the Paying Agent or Registrar: | Deutsche Bank Trust Company Americas Trust and Agency Services 1 Columbus Circle, Floor 17th Mail Stop: NYC01-1710 New York, New York 10019-8735 Fax: 732-578-4635 Attn: Corporates Team – Deutsche Bank AG | |
Where this Indenture provides for notice to Holders of Registered Securities, 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 its last address on the books of the Registrar, including in the case of a change of address by the Trustee, Issuer or Agent. In any case where notice to such 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 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 or send by overnight delivery notice to the Issuer when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be reasonably satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
6
If the Trustee shall change its Corporate Trust Office or if any of the Agents shall change its respective office specified in this Section 12.04, it shall give to each other party to this Agreement not less than 30 days’ prior written notice to that effect giving the address of the changed office and stating the date on which the change is to take effect. The Issuer, the Trustee or the Paying Agent shall give to the Holders at least 15 days’ notice of such change and of the address of the changed office in accordance with the provisions of this Section 12.04.”
SECTION 1.05. New York Law to Govern. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Eligible Liabilities Senior Indenture, Section 12.08 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 12.08. New York Law to Govern. This Indenture and each Security and Coupon 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 the State of New York, except as may otherwise be required by mandatory provisions of law and except with respect to the provisions in the second to fourth paragraphs of Section 2.03, relating to the ranking of the Securities, which 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 1.06. Submission to Jurisdiction . With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Eligible Liabilities Senior Indenture, Section 12.13 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 12.13. Submission to Jurisdiction. The Issuer agrees that any legal suit, action or proceeding arising out of or based upon this Indenture may be instituted in any U.S. state or federal court 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 jurisdiction of such court in any suit, action or proceeding. The Issuer has appointed DB USA Corporation, c/o Office of the Corporate Secretary, 60 Wall Street, Mail Stop NYC60-3701, New York, New York 10005, as its authorized agent (the “Authorized Agent”) upon which process may be instituted in any U.S. state or federal court in the Borough of Manhattan, City and State of New York and the Issuer expressly accepts the jurisdiction of any such court in respect of such action. Such appointment shall be irrevocable unless and until a successor authorized agent, located or with an office in the Borough of Manhattan, City and State of New York, shall have been appointed by the Issuer and such appointment shall have been accepted by such successor authorized agent. The Issuer represents and warrants that the Authorized Agent has agreed to act as said agent for service of process, and the Issuer agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such
7
appointment in full force and effect as aforesaid. 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. Nothing in this Indenture, in particular the application of the laws of the Federal Republic of Germany to the provisions of the second to fourth paragraphs of Section 2.03, shall be deemed a submission by the Trustee to the jurisdiction of any court other than those specified in this Section 12.13.”
SECTION 1.07. Applicability of Article; Approval by Competent Resolution AuthoritySECTION 1.08. . With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Eligible Liabilities Senior Indenture, Section 13.01 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 13.01. Applicability of Article; Approval by Competent Resolution Authority. The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity. Any redemption of the Securities of any series prior to their scheduled maturity shall be subject to (i) receipt by the Issuer of prior written approval of the competent resolution authority; (ii) there being a change (x) in the regulatory classification of the Securities that would be likely to result in (1) their exclusion in full or in part from our eligible liabilities under the CRR; or (2) their reclassification as a lower quality of our eligible liabilities than as of the issue date, or (y) in the applicable tax treatment of the Securities; and (ii) compliance with any other regulatory requirements. If the Securities are redeemed without prior written approval of such competent authority, then the amounts paid on the Securities must be returned to the Issuer irrespective of any agreement to the contrary.”
ARTICLE 2
MISCELLANEOUS PROVISIONS
SECTION 2.01. Further Assurances. The Issuer will, upon request by the Trustee, execute and deliver such further instruments and do such further acts as may reasonably be necessary or proper to carry out more effectively the purposes of this First Supplemental Eligible Liabilities Senior Indenture.
SECTION 2.02. Other Terms of Indenture. Except insofar as herein otherwise expressly provided, all provisions, terms and conditions of the Indenture are in all respects ratified and confirmed and shall remain in full force and effect.
SECTION 2.03. Terms Defined. All terms defined elsewhere in the Indenture shall have the same meanings when used herein.
SECTION 2.04. Governing Law. This First Supplemental Eligible Liabilities Senior 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 the State of New York, except as may otherwise be required by mandatory provisions of law and except with respect to the provisions in the second to fourth paragraphs of Section 2.03 of the Indenture, relating to the ranking of the Securities, which 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.
8
SECTION 2.05. Counterparts. This First Supplemental Eligible Liabilities Senior Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including ..pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective as delivery of a manually executed counterpart of this First Supplemental Eligible Liabilities Senior Indenture. Each of the parties to this First Supplemental Eligible Liabilities Senior Indenture represents that it has undertaken commercially reasonable steps to verify the identity of each individual person executing any such counterparts via electronic signature on behalf of such party and has and will maintain sufficient records of the same. This First Supplemental Eligible Liabilities Senior Indenture shall become effective when each party shall have received a counterpart hereof signed by all of the other parties to this First Supplemental Eligible Liabilities Senior Indenture.
SECTION 2.06. Responsibility of the Trustee. The recitals contained herein shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Eligible Liabilities Senior Indenture or the Securities.
[SIGNATURE PAGE FOLLOWS]
9
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Eligible Liabilities Senior Indenture to be duly executed, all as of the date first written above.
| DEUTSCHE BANK | ||
| AKTIENGESELLSCHAFT | ||
| By: | /s/ Andrew Rivas | |
| Name:Andrew Rivas | ||
| Title: Director | ||
| By: | /s/ VyVy Huynh | |
| Name: VyVy Huynh | ||
| Title: Vice President | ||
| THE BANK OF NEW YORK MELLON, as | ||
| Trustee | ||
| By: | /s/ Stacey B. Poindexter | |
| Name: Stacey B. Poindexter | ||
| Title: Vice President | ||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Paying Agent, Authenticating Agent, Issuing Agent and Registrar | ||
| By: | /s/ Chris Niesz | |
| Name: Chris Niesz | ||
| Title: Vice President | ||
| By: | /s/ Sebastian Hidalgo | |
| Name: Sebastian Hidalgo | ||
| Title: Assistant Vice President | ||
Exhibit 4.6(a)
DEUTSCHE BANK AG
[INSERT BRANCH OFFICE THROUGH WHICH THE NOTE IS ISSUED, IF APPLICABLE]
[FORM OF FACE OF DEBT SECURITY]
| FIXED RATE REGISTERED ELIGIBLE LIABILITIES SENIOR NOTE | ||
| REGISTERED | U.S. $[AGGREGATE PRINCIPAL AMOUNT] | |
| CERTIFICATE No. | CUSIP: | |
| ISIN: | ||
Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
ELIGIBLE LIABILITIES SENIOR NOTES,
SERIES D
Fixed Rate Registered Eligible Liabilities Senior Note
| Trade Date | [ ] | |
| Original Issue Date | [ ] | |
| Maturity Date | [ ] | |
| Principal Amount | [ ] | |
| Aggregate Principal Amount | [ ] | |
| Minimum Denominations | [ ] | |
| Interest Rate | [ ] | |
| Interest Payment Date(s) | [ ] | |
| Interest Period(s) | [ ] | |
| Interest Accrual Date | [ ] | |
| Resolution Measures Provisions | This Note will be subject to the Resolution Measures provisions provided in the Indenture and on the reverse hereof | |
| Office Substitution | [Applicable] | |
| Initial Redemption Date | [ ] | |
| Redemption Dates | [ ] | |
| Redemption Notice Period | [ ] | |
| Initial Redemption Percentage | [ ] | |
| Annual Redemption Percentage Reduction | [ ] | |
| Original Yield to Maturity | [ ] | |
| Tax Redemption | [ ] | |
| Redemption for Regulatory Reasons | [ ] | |
| Payment of Additional Amounts | [ ] | |
| Other Provisions | [ ] | |
2
Deutsche Bank Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany, if so specified, acting through the office specified on the front page of this Note, (together with its successors and assigns, the “Issuer”), for value received, hereby promises to pay to Cede & Co., or registered assignees, the amount of cash due with respect to the principal sum specified above on the Maturity Date specified above (except to the extent previously redeemed) and to pay interest thereon at the Interest Rate per annum specified above from and including the Interest Accrual Date specified above until but excluding the date the amount due with respect to the principal amount is paid or duly made available for payment (except as provided below) weekly, monthly, quarterly, semi-annually or annually in arrears on the Interest Payment Dates specified above in each year commencing on the Interest Payment Date next succeeding the Interest Accrual Date specified above, and at maturity (or on any redemption date); provided, however, that if the Interest Accrual Date occurs between a Record Date, as defined below, and the next succeeding Interest Payment Date, interest payments will commence on the second Interest Payment Date succeeding the Interest Accrual Date to the registered Holder of this Note on the Record Date with respect to such second Interest Payment Date.
Interest on this Note will accrue from, and including, the most recent Interest Payment Date to which interest has been paid or duly provided for, or, if no interest has been paid or duly provided for, from and including, the Interest Accrual Date, to, but excluding the next Interest Payment Date or the date the amount due with respect to the principal hereof has been paid or duly made available for payment (except as provided below). The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, subject to certain exceptions described herein, be paid to the person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the date that is one New York Banking Day immediately preceding the relevant date of payment with respect to such Interest Payment Date (each such date, a “Record Date”); provided, however, that any interest payable at maturity (or on any redemption date) will be payable to the person to whom the amount due with respect to the principal hereof shall be payable.
Payment of the amount due with respect to the principal, premium, if any, and any interest due on this Note will be made by wire transfer of immediately available funds at the office or agency of the Paying Agent (as defined on the reverse hereof), maintained for that purpose in the Borough of Manhattan, The City of New York, or at such other paying agency as the Issuer may determine, in U.S. Dollars.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, acting on behalf of the Trustee, referred to on the reverse hereof by manual or electronic signature (in accordance with the requirements of the Indenture), this Note shall not be entitled to any benefit under the Indenture (as defined on the reverse hereof) or be valid or obligatory for any purpose.
3
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
| DATED: [ ] | DEUTSCHE BANK AG [INSERT BRANCH OFFICE THROUGH WHICH THE NOTE IS ISSUED, IF APPLICABLE] | |||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| CERTIFICATE OF AUTHENTICATION
This Note is one of the Securities referred to in the
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Authenticating Agent | ||
| By: | ||
| Authorized Officer | ||
4
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Eligible Liabilities Senior Notes, Series D of the Issuer (the “Notes”). The Notes are issuable under an Amended and Restated Eligible Liabilities Senior Indenture, dated as of August 3, 2021, among the Issuer, The Bank of New York Mellon, as trustee (the “Trustee,” which term includes any successor trustee under the Indenture), and Deutsche Bank Trust Company Americas (“DBTCA”), as paying agent, authenticating agent, issuing agent and registrar, as amended and supplemented by the First Supplemental Eligible Liabilities Senior Indenture dated as of April 26, 2024 (as amended or supplemented from time to time, the “Indenture”), to which Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities of the Issuer, the Trustee and Holders of the Notes and the terms upon which the Notes are, and are to be, authenticated and delivered. The Issuer has appointed DBTCA acting through its principal corporate trust office in the Borough of Manhattan, The City of New York, as its paying agent (the “Paying Agent,” which term includes any additional or successor Paying Agent appointed by the Issuer) with respect to the Notes. The Issuer has appointed DBTCA as the authenticating agent (the “Authenticating Agent,” which term includes any additional or successor Authenticating Agent appointed by the Issuer) to act on behalf of the Trustee to authenticate the Notes. The terms of individual Notes may vary with respect to interest rates, interest rate formulas, issue dates, maturity dates, or otherwise, all as provided in the Indenture. To the extent not inconsistent herewith, the terms of the Indenture are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund. Unless otherwise indicated on the face hereof, this Note will not be redeemable prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole or in part at the option of the Issuer on or after the Initial Redemption Date specified on the face hereof or on the Redemption Dates specified on the face hereof on the terms set forth on the face hereof, together with interest accrued and unpaid hereon to the date of redemption. Any redemption of this Note prior to its scheduled maturity shall be subject to (i) receipt by the Issuer of prior written approval of the competent resolution authority and (ii) compliance with any other regulatory requirements. If this Note is redeemed by the Issuer without the approval of such competent resolution authority, then the amounts paid on this Note must be returned to the Issuer irrespective of any agreement to the contrary.
If this Note is subject to “Annual Redemption Percentage Reduction,” the Initial Redemption Percentage indicated on the face hereof will be reduced on each anniversary of the Initial Redemption Date by the Annual Redemption Percentage Reduction specified on the face hereof until the redemption price of this Note is 100% of the principal amount hereof, together with interest accrued and unpaid hereon to the date of redemption. Notice of redemption shall be mailed to the registered Holders of the Notes designated for redemption at their addresses as the same shall appear on the Note register not less than 30 calendar days nor more than 60 calendar days prior to the date fixed for redemption or within the Redemption Notice Period specified on the face hereof, subject to all the conditions and provisions of the Indenture. In the event of redemption of this Note in part only, a new Note or Notes for the amount of the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
5
Interest payments on this Note will include interest accrued to but excluding the Interest Payment Dates or the Maturity Date (or any earlier redemption date), as the case may be. Unless indicated otherwise on the face hereof, interest payments for this Note will be computed and paid on the basis of a 360-day year of twelve 30-day months.
In the case where the calendar date indicated on the face hereof as the Interest Payment Date or the Maturity Date (or any redemption date) does not fall on a Business Day or where the Interest Payment Date or the Maturity Date (or any redemption date) is postponed according to the terms and procedures specified on the face hereof, payment of interest, premium, if any, or principal otherwise payable on such calendar date need not be made on such date, but may be made on the immediately following Business Day with the same force and effect as if made on the indicated calendar date, and no interest on such payment shall accrue for the period from and after the indicated calendar date to such Business Day.
The Notes are intended to qualify as eligible liabilities instruments within the meaning of Articles 72a and 72b(2) CRR for the minimum requirement for own funds and eligible liabilities as applicable to the Issuer.
The obligations under the Notes constitute unsecured and unsubordinated non-preferred obligations of the Issuer under debt instruments (Schuldtitel) within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) or any successor provision. The obligations of the Issuer under the Notes shall rank pari passu among themselves and with all other unsecured and unsubordinated non-preferred obligations under debt instruments of the Issuer within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including the obligations under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act (Kreditwesengesetz)) or any successor provision.
In accordance with Section 46f(5) of the German Banking Act (Kreditwesengesetz), in the event of any Resolution Measures imposed on the Issuer or in the event of the dissolution, liquidation, insolvency or composition of the Issuer, or if other proceedings are opened for the avoidance of the insolvency of, or against, the Issuer, the obligations of the Issuer under the Notes shall rank junior to (i) the claims of unsubordinated creditors of the Issuer not qualifying as obligations under debt instruments (Schuldtitel) of the Issuer within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including the obligations under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act (Kreditwesengesetz)) or any successor provision, and (ii) eligible liabilities within the meaning of Article 72b(2) CRR where point (d) of such Article does not apply. In any such event, no amounts shall be payable in respect of the Notes until the claims of such unsubordinated creditors of the Issuer have been satisfied in full.
No subsequent agreement may enhance the seniority of the Issuer’s obligations under the Notes or shorten the term of any of the Notes or any applicable notice period. No Holder may set off or net its claims arising under the Notes against any claims of the Issuer. No collateral or guarantee shall be provided at any time to secure the claims of the Holders under the Notes; any collateral or guarantee already provided or granted in the future in connection with other liabilities of the Issuer may not be used for claims under the Notes. If the Notes are redeemed or repurchased otherwise than in accordance with the terms of the Notes, then the amounts paid must be returned to the Issuer irrespective of any agreement to the contrary.
6
This Note, and any Note or Notes issued upon transfer or exchange hereof, is issuable only in fully registered form, without coupons, and unless otherwise specified above, is issuable only in denominations of U.S. $1,000 and any integral multiple of U.S. $1,000 in excess thereof.
If “Office Substitution” is applicable to the Notes as specified on the face hereof, the Issuer may at any time, without the consent of the Holders or the Trustee, designate another Office of the Issuer as substitute for the Office through which the Issuer has acted to issue the Notes with the same effect as if such substitute Office had been originally named as the Office through which the Issuer had acted to issue the Notes for all purposes under the Indenture and the Notes. In order to give effect to such substitution, the Issuer shall give notice of such substitution to the Trustee and the Holders of the Notes. With effect from the substitution date, such substitute Office shall, without any amendment to this Note or entry into any supplemental indenture, assume all of the obligations of the originally-named Office as principal obligor under the Notes. “Office” means the Issuer’s head office or one of the Issuer’s branch offices.
DBTCA has been appointed Registrar for the Notes, and DBTCA will maintain at its office in The City of New York, a register for the registration and transfer of Notes. This Note may be transferred at either the aforesaid New York office of DBTCA by surrendering this Note for cancellation, accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Trustee and the Authenticating Agent and duly executed by the registered Holder hereof in person or by the Holder’s attorney duly authorized in writing, and thereupon the Trustee or the Authenticating Agent shall authenticate and deliver in the name of the transferee or transferees, in exchange herefor, a new Note or Notes having identical terms and provisions and having a like aggregate principal amount in authorized denominations, subject to the terms and conditions set forth herein; provided, however, that neither the Trustee nor the Authenticating Agent will be required to (i) register the transfer of or exchange any Note that has been called for redemption in whole or in part, except the unredeemed portion of Notes being redeemed in part or (ii) register the transfer of or exchange Notes to the extent and during the period so provided in the Indenture with respect to the redemption of Notes. Notes are exchangeable at said offices for other Notes of other authorized denominations of equal aggregate principal amount having identical terms and provisions. All such registrations, exchanges and transfers of Notes will be free of service charge, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge in connection therewith. All Notes surrendered for exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Trustee and the Authenticating Agent and executed by the registered Holder in person or by the Holder’s attorney duly authorized in writing. The date of registration of any Note delivered upon any exchange or transfer of Notes shall be such that no gain or loss of interest results from such exchange or transfer.
In case this Note shall at any time become mutilated, defaced or be destroyed, lost or stolen and this Note or evidence of the loss, theft or destruction thereof (together with the indemnity hereinafter referred to and such other documents or proof as may be required in the premises) shall be delivered to the Trustee and the Authenticating Agent, the Issuer in its discretion may execute a new Note of like tenor in exchange for this Note, but, in the case of any destroyed or lost or stolen Note, only upon receipt of evidence satisfactory to the Trustee, the Authenticating Agent and the Issuer that this Note was destroyed or lost or stolen and, if required, upon receipt also of indemnity satisfactory to each of them. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the owner of the Note mutilated, defaced, destroyed, lost or stolen.
7
An “Event of Default” with respect to this Note means the opening of insolvency proceedings against the Issuer by a German court having jurisdiction over the Issuer. There are no other events of default under this Note. If an Event of Default with respect to this Note occurs and is continuing, then, unless the principal of this Note shall have already become due and payable, either the Trustee or the Holder of not less than 33 1/3% in aggregate principal amount of all outstanding debt securities issued under the Indenture (treated as one class), by notice in writing to the Issuer (and to the Trustee if given by Holders), may declare the principal amount of this Note and interest accrued thereon to be due and payable immediately in accordance with the terms of the Indenture.
Subject to Section 5.02 of the Indenture, the Indenture provides for no right of acceleration in the case of a default in the payment of principal of, or interest on, or other amounts owing under this Note or a default in the performance of any other covenant of the Issuer under this Note or the Indenture (any such default in payment or default in performance, a “default”).
If an Event of Default or a default with respect to this Note occurs and is continuing, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to pursue any available remedy by proceedings at law or in equity to collect any principal of and interest on this Note due and unpaid, or to enforce the performance of any provision of this Note or the Indenture, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon this Note and collect in the manner provided by law out of the property of the Issuer or other obligor upon this Note, wherever situated, the monies adjudged or decreed to be payable.
If the face hereof indicates that this Note is subject to “Redemption for Regulatory Reasons,” then, the Issuer may redeem any series of the Notes in whole, but not in part, solely at the option of the Issuer at any time prior to the maturity date specified in the Related Prospectus at 100% of the applicable principal amount (subject to the imposition of a Resolution Measure) together with any accrued and unpaid interest to (but excluding) the date set for redemption. Any redemption of a Note prior to its scheduled maturity shall be subject to (i) receipt by the Issuer of the prior written approval of the competent resolution authority; (ii) there being a change in the regulatory classification of the Notes that would be likely to result in (1) their exclusion in full or in part from our eligible liabilities under the CRR; or (2) their reclassification as a lower quality of our eligible liabilities than as of the issue date; and (iii) compliance with any other regulatory requirements. If a Note is redeemed without prior written approval of the competent resolution authority, then the amounts paid on this Note must be returned to the Issuer irrespective of any agreement to the contrary. Notice of redemption will be given not less than 30 calendar days nor more than 60 calendar days prior to the date fixed for redemption or within the Redemption Notice Period specified in the Related Prospectus, which date and the applicable redemption price will be specified in the Notice.
8
If the face hereof indicates that this Note is subject to “Tax Redemption,” subject to approval by the competent resolution authority, the Issuer may redeem any series of the Notes in whole but not in part, solely at the option of the Issuer at any time prior to maturity, upon the giving of a Notice of redemption as described below, at a redemption price equal to 100% of the principal amount hereof, together with any accrued interest to the date fixed for redemption, if the Issuer determines that, as a result of any change in or amendment to the laws, or any regulations or rulings promulgated thereunder, of a Tax Jurisdiction (as defined below), or any change in official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment becomes effective on or after the Trade Date hereof, the Issuer has or will become obligated to pay Additional Amounts (as defined below), with respect to this Note as described below, provided that the change in the applicable tax treatment is material and was not reasonably foreseeable at the Original Issue Date. If this Note is redeemed by the Issuer without the approval of such competent resolution authority, then the amounts paid on this Note must be returned to the issuer irrespective of any agreement to the contrary. Prior to the giving of any Notice of redemption pursuant to this paragraph, the Issuer shall deliver to the Trustee (i) a certificate stating that the Issuer is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Issuer to so redeem have occurred, and (ii) an opinion of independent legal counsel satisfactory to the Trustee to such effect based on such statement of facts; provided, that no such Notice of redemption shall be given earlier than 60 calendar days prior to the earliest date on which the Issuer would be obligated to pay such Additional Amounts if a payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 calendar days nor more than 60 calendar days prior to the date fixed for redemption or within the Redemption Notice Period specified on the face hereof, which date and the applicable redemption price will be specified in the Notice.
All interest amounts payable in respect of this Note shall be made without deduction or withholding for or on account of any present or future taxes, duties or governmental charges of any nature whatsoever imposed or levied by way of deduction or withholding by or on behalf of the Tax Jurisdiction (“Withholding Taxes”), unless such deduction or withholding is required by law.
“Tax Jurisdiction” means the Federal Republic of Germany, the United States or the jurisdiction of residence or incorporation of any successor corporation to the Issuer and the jurisdiction of any relevant issuing branch or any political subdivision or any taxing authority thereof or therein.
In the event of such withholding or deduction on payments of interest (but not in respect of the payment of any principal in respect of this Note) and if (but only if) the face hereof indicates that this Note is subject to “Payment of Additional Amounts,” the Issuer shall, to the fullest extent permitted by law, pay such additional amounts (“Additional Amounts”) as will be necessary in order that the net amounts received by the Holders, after such withholding or deduction for or on account of any Withholding Taxes imposed upon or as a result of such payment by the Tax Jurisdiction, will equal the respective amounts which would otherwise have been receivable in the absence of such withholding or deduction; except that no such Additional Amounts shall be payable on account of any taxes, duties or governmental charges which:
| (a) | are payable by any person acting as custodian bank or collecting agent on the Holder’s or the Beneficial Owner’s behalf, or otherwise in any manner which does not constitute a deduction or withholding by the Issuer from payments of interest made by the Issuer; or |
9
| (b) | in the case of U.S. federal income taxes, are imposed on interest received by or on behalf of (1) a 10-percent shareholder (as defined in Section 871(h)(3)(B) of the U.S. Internal Revenue Code of 1986 (the “Code”) and the regulations that may be promulgated thereunder) of the Issuer, (2) a controlled foreign corporation that is related to the Issuer within the meaning of Section 864(d)(4) of the Code, or (3) a bank receiving interest described in Section 881(c)(3)(A) of the Code, to the extent such tax, assessment or other governmental charge would not have been imposed but for the Holder’s or Beneficial Owner’s status as described in clauses (1) through (3) of this paragraph; or |
| (c) | would not be payable to the extent such deduction or withholding could be avoided or reduced if the Holder or the Beneficial Owner (or any financial institution through which the Holder or the Beneficial Owner holds the Notes or through which payment on the Notes is made) (i) makes a declaration of non-residence or other similar claim for exemption to the relevant tax authority or complies with any reasonable certification, documentation, information or other reporting requirement imposed by the relevant tax authority or (ii) enters into or complies with any applicable certification, identification, information, documentation, registration, or other reporting requirement or agreement concerning accounts maintained by the Holder or the Beneficial Owner (or such financial institution) or concerning the Holder’s or the Beneficial Owner’s (or financial institution’s) ownership or concerning the Holder’s or the Beneficial Owner’s (or such financial institution’s) nationality, residence, identity or connection with the jurisdiction imposing such tax; or |
| (d) | are payable by reason of the Holder’s or the Beneficial Owner’s having, or having had, some personal or business connection with the Tax Jurisdiction and not merely by reason of the fact that payments in respect of the Notes are, or for purposes of taxation are deemed to be, derived from sources in, or are secured in, the Tax Jurisdiction; or |
| (e) | are presented for payment more than 30 days after the Relevant Date (as defined below) except to the extent that the Holder or the Beneficial Owner would have been entitled to Additional Amounts on presenting the same for payment on the last day of the period of 30 days assuming that day to have been a Business Day; or |
| (f) | are deducted or withheld by a paying agent from a payment if the payment could have been made by another paying agent without such deduction or withholding; or |
| (g) | would not be payable if the Notes had been kept in safe custody with, and the payments had been collected by, a banking institution; or |
10
| (h) | are required to be deducted or withheld from a payment or deemed payment that is treated as a “dividend equivalent” payment under the Code, Treasury regulations, or other law or official guidance of the United States; or |
| (i) | are imposed or withheld by reason of the application of sections 1471 through 1474 of the Code (or any successor provisions) any regulation, ruling, assessment, or agreement thereunder, official interpretations or administrative guidance thereof or thereunder, or any law, regulation or administrative guidance implementing an intergovernmental approach thereto, whether currently in effect or as published and amended from time to time; or |
| (j) | are payable by reason of a change in law or practice that becomes effective more than 30 days after the relevant payment of interest becomes due, or is duly provided for and notice thereof is given in accordance with the Section 12.04 of the Indenture, whichever occurs later. |
No Additional Amounts or any other amounts shall be payable on account of any such withholding or deduction in respect of payments of principal.
“Relevant Date” means the date on which the payment first becomes due but, if the full amount payable has not been received by the paying agent on or before the due date, it means the date on which, the full amount having been so received.
The terms and conditions set forth in the following paragraphs (a) – (k) shall apply to this Note, and by acquiring this Note, the Holder and each Beneficial Owner of this Note shall be bound by and shall be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority.
| (a) | Under the relevant resolution laws and regulations as applicable to the Issuer from time to time, this Note may be subject to the powers exercised by the competent resolution authority to: |
| (i) | write down, including write down to zero, the claims for payment of the principal amount, the interest amount, if any, or any other amount in respect of this Note; |
| (ii) | convert this Note into ordinary shares of (A) the Issuer or (B) any group entity or (C) any bridge bank or other instruments of ownership of such entities qualifying as common equity tier one capital (and the issue to or conferral on the Holder (including each Beneficial Owner) of such ordinary shares or instruments); and/or |
| (iii) | apply any other resolution measure, including, but not limited to, (A) any transfer of this Note to another entity, (B) the amendment, modification or variation of the terms and conditions of this Note or (C) the cancellation of this Note; |
(each, a “Resolution Measure”).
11
For the avoidance of doubt, any non-payment by the Issuer arising out of any such Resolution Measure will not constitute a failure by the Issuer under the terms of this Note or the Indenture to make a payment of principal of, interest on, or other amounts owing under this Note.
| (b) | By its acquisition of this Note, the Holder (including each Beneficial Owner) of this Note shall be deemed irrevocably to have agreed: |
| (i) | to be bound by, to acknowledge and to accept any Resolution Measure and any amendment, modification or variation of the terms and conditions of this Note to give effect to any Resolution Measure; |
| (ii) | that it will have no claim or other right against the Issuer arising out of any Resolution Measure; and |
| (iii) | that the imposition of any Resolution Measure will not constitute an Event of Default or a default (A) under this Note, (B) under the Indenture or (C) for the purpose of, but only to the fullest extent permitted by, the Trust Indenture Act (including, without limitation, Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act) and applicable law. |
| (c) | The terms and conditions of this Note shall continue to apply in relation to the residual principal amount of, or outstanding amount payable in respect of, this Note, subject to any modification of the amount of interest payable, if any, to reflect the reduction of the principal amount, and any further modification of the terms that the competent resolution authority may decide in accordance with applicable laws and regulations relating to the resolution of banks, banking group companies, credit institutions and/or investment firms incorporated in the Federal Republic of Germany. |
| (d) | No repayment of any then-current principal amount of this Note or payment of interest or any other amount thereon (to the extent of the portion thereof affected by the imposition of a Resolution Measure) shall become due and payable after the imposition of any Resolution Measure by the competent resolution authority, unless such repayment or payment would be permitted to be made by the Issuer under the laws and regulations of the Federal Republic of Germany then applicable to the Issuer. |
| (e) | By its acquisition of this Note, the Holder (and each Beneficial Owner) of this Note waives, to the fullest extent permitted by the Trust Indenture Act and applicable law, any and all claims against the Trustee or the Agents for, agrees not to initiate a suit against the Trustee or the Agents in respect of, and agrees that the Trustee and the Agents shall not be liable for, any action that the Trustee or the Agents take, or abstain from taking, in either case in accordance with the imposition of a Resolution Measure by the competent resolution authority with respect to this Note. |
12
| (f) | Upon the imposition of a Resolution Measure by the competent resolution authority with respect to this Note, the Issuer shall provide a written notice directly to the clearing system or clearing systems and to the Holder in accordance with Section 12.04 of the Indenture as soon as practicable regarding such imposition of a Resolution Measure by the competent resolution authority for purposes of notifying the Holder of such occurrence. The Issuer shall also deliver a copy of such notice to the Trustee and the Agents for information purposes, and the Trustee and the Agents shall be entitled to rely, and will not be liable for relying, on the competent resolution authority and the Resolution Measure identified in such notice. Any delay or failure by the Issuer to give notice shall not affect the validity or enforceability of any Resolution Measure nor the effects thereof on this Note. |
| (g) | If this Note is called or being called for redemption by the Issuer, but the competent resolution authority has imposed a Resolution Measure with respect to this Note prior to the payment of the redemption amount, the relevant redemption notice, if any, shall be automatically rescinded and shall be of no force and effect, and no payment of the redemption amount will be due and payable. |
| (h) | Upon the imposition of any Resolution Measure by the competent resolution authority, the Trustee shall not be required to take any further directions from the Holders under Section 5.09 of the Indenture, which section authorizes Holders of a majority in aggregate principal amount of the debt securities issued under the Indenture at the time Outstanding to direct certain actions relating to such debt securities, and if any such direction was previously given under Section 5.09 of the Indenture to the Trustee by the Holders, it shall automatically cease to be effective, be null and void and have no further effect. The Indenture shall impose no duties, obligations or liabilities upon the Trustee or the Agents whatsoever with respect to the imposition of any Resolution Measure by the competent resolution authority. The Trustee and the Agents shall be fully protected in acting or refraining from acting in accordance with a Resolution Measure. Notwithstanding the foregoing, if, following completion of the imposition of a Resolution Measure by the competent resolution authority, this Note remains outstanding, then the Trustee’s and each Agent’s duties under the Indenture shall remain applicable with respect to this Note following such completion to the extent that the Issuer, the Trustee and the Agents agree pursuant to a supplemental indenture, unless the Issuer, the Trustee and the Agents agree that a supplemental indenture is not necessary. |
| (i) | By the acquisition of this Note, the Holder and each Beneficial Owner of this Note shall be deemed irrevocably to have (i) consented to the imposition of any Resolution Measure as it may be imposed without any prior notice by the competent resolution authority of its decision to exercise such power with respect to this Note, (ii) authorized, directed and requested the Depositary and any direct participant in the Depositary or other intermediary through which it holds this Note to take any and all necessary action, if required, to implement the imposition of any Resolution Measure with respect to this Note as it may be imposed, |
13
| without any further action or direction on the part of the Holder of this Note, the Trustee or the Agents and (iii) acknowledged and accepted that the provisions contained in Article 6 of the Indenture are exhaustive on the matters described in Article 6 of the Indenture to the exclusion of any other agreements, arrangements or understandings between it and the Issuer relating to the terms and conditions of this Note. |
| (j) | If the competent resolution authority imposes a Resolution Measure with respect to less than the total outstanding principal amount of the debt securities issued under the Indenture, unless the Trustee or the Agents are otherwise instructed by the Issuer or the competent resolution authority, any cancellation, write-off or conversion into equity made in respect of such debt securities pursuant to the Resolution Measure will be made on a substantially pro rata basis among any series of debt securities issued under the Indenture. |
| (k) | Any obligations of the Holders to indemnify the Trustee and the Agents under the Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or this Note. To the extent not otherwise specifically precluded by a Resolution Measure (whether or not such Resolution Measure is expressly referring to the relevant indemnities or is precluding the relevant indemnities generally), the Issuer’s obligations to indemnify the Trustee and the Agents in accordance with Sections 7.02 and 7.06 of the Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or this Note. |
The Indenture permits the Issuer and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the debt securities of all series issued under the Indenture then outstanding and affected (voting as one class), to execute supplemental indentures adding any provisions to or changing in any manner the rights of the Holders of each series so affected; provided that the Issuer and the Trustee may not, without the consent of the Holder of each outstanding debt security affected thereby, (a) extend the final maturity of any such debt security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof, or change the currency of payment thereof, or modify or amend the provisions for conversion of any currency into any other currency, or impair or affect the rights of any Holder to institute suit for the payment thereof or (b) reduce the aforesaid percentage in principal amount of debt securities the consent of the Holders of which is required for any such supplemental indenture. The Issuer and the Trustee may, without the consent of the Holder of this Note, conform the terms of this Note to the description thereof in the prospectus and prospectus supplements relating to the offering and sale of this Note. No subsequent agreement shall make the principal and interest payable on any series of the Notes payable in different coins or currencies, i.e., the relevant coin or currency must always be identical for the relevant series of the Notes.
So long as this Note shall be outstanding, the Issuer will cause to be maintained an office or agency for the payment of the principal of and premium, if any, and interest, if any, on this Note as herein provided in the United States, and an office or agency in the United States for the registration, transfer and exchange as aforesaid of this Note. The Issuer may designate other agencies for the payment of said principal, premium and interest at such place or places outside the United States (subject to applicable laws and regulations) as the Issuer may decide. So long as there shall be such an agency, the Issuer shall keep the Trustee advised of the names and locations of such agencies, if any are so designated.
14
With respect to moneys paid by the Issuer and held by the Trustee or any Paying Agent for payment of the principal of or interest or premium, if any, on any Notes that remain unclaimed at the end of two years after such principal, interest or premium shall have become due and payable (whether at maturity or upon call for redemption or otherwise), (i) the Trustee or such Paying Agent shall notify the Holders of such Notes that such moneys shall be repaid to the Issuer and any person claiming such moneys shall thereafter look only to the Issuer for payment thereof and (ii) such moneys shall be so repaid to the Issuer. Upon such repayment all liability of the Trustee or such Paying Agent with respect to such moneys shall thereupon cease, without, however, limiting in any way any obligation that the Issuer may have to pay the principal of or interest or premium, if any, on this Note as the same shall become due.
Subject to the imposition of a Resolution Measure, no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the amount of cash as determined in accordance with the provisions set forth on the face of this Note due with respect to the principal of, premium, if any, and interest, if any, on this Note at the time, place, and rate, and in the coin or currency, herein prescribed unless otherwise agreed between the Issuer and the registered Holder of this Note.
Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Holder in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if any, or the interest, if any, on this Note, for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Issuer or of any successor corporation, either directly or through the Issuer or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
This Note shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the State of New York, except as may otherwise be required by mandatory provisions of law and except with respect to the provisions in this Note and in the second to fourth paragraphs of Section 2.03 of the Indenture, in each case, relating to the ranking of the Notes, which 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.
15
As used herein:
| (a) | the term “Beneficial Owner” shall mean the beneficial owners of this Note (and any interest therein); |
| (b) | the term “bridge bank” means 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 the event of the imposition of Resolution Measures; |
| (c) | the term “Business Day” means, unless otherwise provided on the face of this Note, any day other than a day that (i) is a Saturday or Sunday, (ii) is a day on which banking institutions generally in the City of New York are authorized or obligated by law, regulation or executive order to close, (iii) is a day on which transactions in U.S. Dollars are not conducted in the City of New York or (iv) a day on which T2 is not operating; |
| (d) | the term “competent resolution authority” means any authority with the ability to exercise a Resolution Measure; |
| (e) | the term “CRR” means Regulation (EU) No 575/2013 of the European Parliament and the Council of June 26, 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (including any provisions of regulatory law supplementing this Regulation); to the extent that any provisions of the CRR are amended or replaced, the term CRR as used in this Note shall refer to such amended provisions or successor provisions; |
| (f) | the term “group entity” shall mean an entity that is included in the corporate group subject to a Resolution Measure; |
| (g) | the term “Notices” refers to notices to the Holders of the Notes at each Holder’s address as that address appears in the register for the Notes by first class mail, postage prepaid, and to be given by publication in an authorized newspaper in the English language and of general circulation in the Borough of Manhattan, The City of New York; provided that notice may be made, at the option of the Issuer, through the customary notice provisions of the clearing system or systems through which beneficial interests in this Note are owned. Such Notices will be deemed to have been given on the date of such publication (or other transmission, as applicable), or if published in such newspapers on different dates, on the date of the first such publication; |
| (h) | the term “T2” means the real time gross settlement system operated by the Eurosystem, or any successor system; and |
| (i) | the term “United States” means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction. |
All other terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
16
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
| TEN COM |
– | as tenants in common | ||
| TEN ENT |
– | as tenants by the entireties | ||
| JT TEN |
– | as joint tenants with right of survivorship and not as tenants in common |
UNIF GIFT MIN ACT – Custodian
| (Minor) |
(Cust) |
Under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
17
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and appointing such person attorney to transfer such Note on the books of the Issuer, with full power of substitution in the premises.
Dated:
| NOTICE: | The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever. |
18
Exhibit 4.6(b)
DEUTSCHE BANK AG
[INSERT BRANCH OFFICE THROUGH WHICH THE NOTE IS ISSUED, IF APPLICABLE]
[FORM OF FACE OF DEBT SECURITY]
| FLOATING RATE REGISTERED ELIGIBLE LIABILITIES SENIOR NOTE | ||
| REGISTERED | U.S. $[AGGREGATE PRINCIPAL AMOUNT] | |
| CERTIFICATE No. | CUSIP: | |
| ISIN: | ||
Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
ELIGIBLE LIABILITIES SENIOR NOTES, SERIES D
Floating Rate Registered Eligible Liabilities Senior Note
| Trade Date | [ ] | |
| Original Issue Date | [ ] | |
| Maturity Date | [ ] | |
| Principal Amount | [ ] | |
| Aggregate Principal Amount | [ ] | |
| Minimum Denominations | [ ] | |
| Interest Accrual Date | [ ] | |
| Base Rate | [ ] | |
| Day Count Convention | [ ] | |
| Index Maturity | [ ] | |
| Spread (plus or minus) | [ ] | |
| Spread Multiplier | [ ] | |
| Initial Interest Rate | [ ] | |
| Initial Interest Reset Date | [ ] | |
| Interest Payment Date(s) | [ ] | |
| Interest Payment Period | [ ] | |
| Interest Reset Date(s) | [ ] | |
| Resolution Measures Provisions | This Note will be subject to the Resolution Measures provisions provided in the Indenture and on the reverse hereof | |
| Office Substitution | [Applicable] | |
| Calculation Agent | [ ] | |
| Initial Redemption Date | [ ] | |
| Initial Redemption Percentage | [ ] | |
| Annual Redemption Percentage Reduction | [ ] | |
| Redemption Notice Period | [ ] | |
| Tax Redemption | [ ] | |
| Redemption for Regulatory Reasons | [ ] | |
| Payment of Additional Amounts | [ ] | |
| If yes, state Initial Offering Date | [ ] | |
| Other Provisions | [ ] | |
2
Deutsche Bank Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany, if so specified, acting through the office specified on the front page of this Note, (together with its successors and assigns, the “Issuer”), for value received, hereby promises to pay to Cede & Co., or registered assignees, the amount of cash due with respect to the principal sum specified above on the Maturity Date specified above (except to the extent previously redeemed) and to pay interest thereon at a rate per annum determined in accordance with the provisions specified on the reverse hereof until the principal hereof is paid or duly made available for payment.
The Issuer will pay interest in arrears weekly, monthly, quarterly, semi-annually or annually as specified above as the Interest Payment Period on each Interest Payment Date (as specified above), commencing on the first Interest Payment Date next succeeding the Interest Accrual Date specified above, and on the Maturity Date (or on any redemption date); provided, however, that if the Interest Accrual Date occurs between a Record Date, as defined below, and the next succeeding Interest Payment Date, interest payments will commence on the second Interest Payment Date succeeding the Interest Accrual Date to the registered Holder of this Note on the Record Date with respect to such second Interest Payment Date; and provided, further, that if an Interest Payment Date (other than the Maturity Date or a redemption date) would fall on a day that is not a Business Day, as defined on the reverse hereof, such Interest Payment Date shall be the following day that is a Business Day, except that if the Base Rate specified above is EURIBOR or Compounded SOFR and such next Business Day falls in the next calendar month, such Interest Payment Date shall be the immediately preceding day that is a Business Day; and provided, further, that if the Maturity Date or redemption date would fall on a day that is not a Business Day, such payment shall be made on the following day that is a Business Day and no interest shall accrue for the period from and after such Maturity Date or redemption date; and provided, further, that if an Interest Payment Date or the Maturity Date or redemption date would fall on a day that is not a Business Day, payment of interest, premium, if any, or principal otherwise payable on such date need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the scheduled Interest Payment Date or on the scheduled Maturity Date or redemption date.
Interest on this Note will accrue from, and including, the most recent Interest Payment Date to which interest has been paid or duly provided for, or, if no interest has been paid or duly provided for, from and including, the Interest Accrual Date, to, but excluding the next Interest Payment Date or the date the amount due with respect to the principal hereof has been
3
paid or duly made available for payment (except as provided below) (each such period, an “Interest Period”). The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, subject to certain exceptions described herein, be paid to the person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the date that is one New York Banking Day immediately preceding the relevant date of payment with respect to such Interest Payment Date (each such date, a “Record Date”); provided, however, that any interest payable at maturity (or on any redemption date) will be payable to the person to whom the amount due with respect to the principal hereof shall be payable.
Payment of the amount due with respect to the principal, premium, if any, and any interest due on this Note will be made by wire transfer of immediately available funds at the office or agency of the Paying Agent (as defined on the reverse hereof), maintained for that purpose in the Borough of Manhattan, The City of New York, or at such other paying agency as the Issuer may determine, in U.S. Dollars.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, acting on behalf of the Trustee, referred to on the reverse hereof by manual or electronic signature (in accordance with the requirements of the Indenture), this Note shall not be entitled to any benefit under the Indenture (as defined on the reverse hereof) or be valid or obligatory for any purpose.
4
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
| DATED: [ ] | DEUTSCHE BANK AG [INSERT BRANCH OFFICE THROUGH WHICH THE NOTE IS ISSUED, IF APPLICABLE] | |||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| CERTIFICATE OF AUTHENTICATION
This Note is one of the Securities referred to in the
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Authenticating Agent | ||
| By: | ||
| Authorized Officer | ||
5
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Eligible Liabilities Senior Notes, Series D of the Issuer (the “Notes”). The Notes are issuable under an Amended and Restated Eligible Liabilities Senior Indenture, dated as of August 3, 2021, among the Issuer, The Bank of New York Mellon, as trustee (the “Trustee,” which term includes any successor trustee under the Indenture), and Deutsche Bank Trust Company Americas (“DBTCA”), as paying agent, authenticating agent, issuing agent and registrar, as amended and supplemented by the First Supplemental Eligible Liabilities Senior Indenture dated as of April 26, 2024 (as amended or supplemented from time to time, the “Indenture”), to which Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities of the Issuer, the Trustee and Holders of the Notes and the terms upon which the Notes are, and are to be, authenticated and delivered. The Issuer has appointed DBTCA acting through its principal corporate trust office in the Borough of Manhattan, The City of New York, as its paying agent (the “Paying Agent,” which term includes any additional or successor Paying Agent appointed by the Issuer) with respect to the Notes. The Issuer has appointed DBTCA as the authenticating agent (the “Authenticating Agent,” which term includes any additional or successor Authenticating Agent appointed by the Issuer) to act on behalf of the Trustee to authenticate the Notes. The terms of individual Notes may vary with respect to interest rates, interest rate formulas, issue dates, maturity dates, or otherwise, all as provided in the Indenture. To the extent not inconsistent herewith, the terms of the Indenture are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund. Unless otherwise indicated on the face hereof, this Note will not be redeemable prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole or in part at the option of the Issuer on or after the Initial Redemption Date specified on the face hereof or on the Redemption Dates specified on the face hereof on the terms set forth on the face hereof, together with interest accrued and unpaid hereon to the date of redemption. Any redemption of this Note prior to its scheduled maturity shall be subject to (i) receipt by the Issuer of prior written approval of the competent resolution authority and (ii) compliance with any other regulatory requirements. If this Note is redeemed by the Issuer without the approval of such competent resolution authority, then the amounts paid on this Note must be returned to the Issuer irrespective of any agreement to the contrary.
If this Note is subject to “Annual Redemption Percentage Reduction,” the Initial Redemption Percentage indicated on the face hereof will be reduced on each anniversary of the Initial Redemption Date by the Annual Redemption Percentage Reduction specified on the face hereof until the redemption price of this Note is 100% of the principal amount hereof, together with interest accrued and unpaid hereon to the date of redemption. Notice of redemption shall be mailed to the registered Holders of the Notes designated for redemption at their addresses as the same shall appear on the Note register not less than 30 calendar days nor more than 60 calendar days prior to the date fixed for redemption or within the Redemption Notice Period specified on the face hereof, subject to all the conditions and provisions of the Indenture. In the event of redemption of this Note in part only, a new Note or Notes for the amount of the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
6
This Note will bear interest at the rate determined in accordance with the applicable provisions below by reference to the Base Rate shown on the face hereof based on the Index Maturity, if any, shown on the face hereof (i) plus or minus the Spread, if any, and/or (ii) multiplied by the Spread Multiplier, if any, specified on the face hereof.
How Certain Floating Interest Rates Are Reset. The terms and provisions set forth in this section “How Certain Floating Interest Rates Are Reset” will apply to this Note if the specified Base Rate is EURIBOR or any other Base Rate specified on the face hereof other than Compounded SOFR.
Commencing with the Initial Interest Reset Date specified on the face hereof, the rate at which interest on this Note is payable shall be reset as of each Interest Reset Date specified on the face hereof (as used herein, the term “Interest Reset Date” shall include the Initial Interest Reset Date). The determination of the rate of interest at which this Note will be reset on any Interest Reset Date shall be made on the Interest Determination Date (as defined below) pertaining to such Interest Reset Dates; provided, however, that the interest rate in effect for the period from the Interest Accrual Date to the Initial Interest Reset Date will be the Initial Interest Rate. If any Interest Reset Date would otherwise be a day that is not a Business Day, such Interest Reset Date shall be postponed to the next succeeding day that is a Business Day, except that if the Base Rate specified on the face hereof is EURIBOR and such Business Day is in the next succeeding calendar month, such Interest Reset Date shall be the immediately preceding Business Day.
The Interest Determination Date pertaining to an Interest Reset Date for Notes bearing interest calculated by reference to EURIBOR shall be the second TARGET Settlement Day prior to such Interest Reset Date. The Interest Determination Date pertaining to an Interest Reset Date for Notes bearing interest calculated by reference to two or more Base Rates will be the latest Business Day that is at least two Business Days before the Interest Reset Date for the applicable Note on which each Base Rate is determinable.
Unless otherwise specified on the face hereof, the “Calculation Date” pertaining to an Interest Determination Date will be the earlier of (i) the tenth calendar day after such Interest Determination Date or, if such day is not a Business Day, the next succeeding Business Day, or (ii) the Business Day immediately preceding the applicable Interest Payment Date or Maturity Date (or, with respect to any principal amount to be redeemed, any redemption date), as the case may be. The Calculation Agent shall calculate the interest rate hereon in accordance with the foregoing on or before each Calculation Date.
How Interest Is Calculated.
If the Base Rate specified on the face hereof is EURIBOR, upon the request of the Holder of this Note, the Calculation Agent will provide the interest rate then in effect and, if determined, the interest rate that will become effective on the next Interest Reset Date for this Note. Upon the request of the Holder of this Note if the Base Rate specified on the face hereof is Compounded SOFR, the Calculation Agent will provide Compounded SOFR, the interest rate and the amount of interest accrued with respect to any Interest Period for this Note, after Compounded SOFR and such interest rate and accrued interest have been determined.
7
The amount of accrued interest on a Note for an Interest Period is calculated by multiplying the principal amount of this Note by an accrued interest factor. This accrued interest factor will be determined by multiplying the per annum floating interest rate determined by reference to the applicable Base Rate, as determined for the applicable Interest Period, by a factor resulting from the Day Count Convention that applies with respect to such determination. The factor resulting from the Day Count Convention will be, if so specified on the face hereof, one of the following, or may be any other convention specified on the face hereof:
| • | a factor based on a 360-day year of twelve 30-day months if the Day Count Convention specified on the face hereof is “30/360”; |
| • | a factor equal to the actual number of days in the relevant period divided by 360 if the Day Count Convention specified on the face hereof is “Actual/360”; |
| • | a factor equal to the actual number of days in the relevant period divided by 365, or if any portion of that relevant period falls in a leap year, the sum of (A) the actual number of days in that portion of the relevant period falling in a leap year divided by 366 and (B) the actual number of days in that portion of the relevant period falling in a non-leap year divided by 365, if the Day Count Convention specified on the face hereof is “Actual/Actual”; or |
| • | a factor equal to the actual number of days in the relevant period divided by 365, if the Day Count Convention specified on the face hereof is “Actual/365 (Fixed).” |
If no Day Count Convention is specified on the face hereof, the factor for a note for which the Base Rate specified on the face hereof is EURIBOR or Compounded SOFR will be equal to the actual number of days in the relevant period divided by 360.
All calculations with respect to the amount of interest payable on the Notes will be rounded to the nearest one hundred-thousandth, with five one-millionths rounded upward (e.g., 0.876545 would be rounded to 0.87655); all U.S. dollar amounts related to determination of the payment per principal amount of Notes at maturity will be rounded to the nearest ten-thousandth, with five one hundred-thousandths rounded upward (e.g., 0.76545 would be rounded up to 0.7655); and all U.S. dollar amounts paid on the aggregate principal amount of Notes per Holder or Beneficial Owner will be rounded to the nearest cent, with one-half cent rounded upward.
The interest rate on this Note will in no event be less than 0% per annum or higher than the maximum rate permitted by New York law, as such maximum rate may be modified by United States Federal law of general application.
8
Determination of EURIBOR. If the Base Rate specified on the face hereof is “EURIBOR,” for any Interest Determination Date, EURIBOR with respect to this Note shall be the rate for interbank term deposits in euro, as sponsored, calculated and published jointly by the European Money Markets Institute, having the Index Maturity specified on the face hereof, as such rate appears on Reuters page EURIBOR01 (or any other page as may replace Reuters page EURIBOR01) (“Reuters Page EURIBOR01”) as of 11:00 A.M., Brussels Time, on such Interest Determination Date.
The following procedures shall be followed if EURIBOR cannot be determined as described above:
| (a) | If the Calculation Agent determines that EURIBOR with the Index Maturity specified on the face hereof has been discontinued or ceases to be calculated or published, the Calculation Agent will, in its sole discretion, select an alternative reference rate as a substitute interest rate for the Notes; provided that if the Calculation Agent determines that there is an industry accepted successor interest rate for the discontinued EURIBOR, the Calculation Agent shall use such successor interest rate as the substitute interest rate for the Notes. As part of any such substitution, the Calculation Agent may make adjustments to the terms of the Notes, including, but not limited to, the definition of the Base Rate (including the related fallback mechanism), the applicable currency and/or Index Maturity for such alternative reference rate, the Spread or Spread Multiplier, as well as the business day convention, the definition of Business Day, Interest Determination Dates and related provisions and definitions, in each case consistent with accepted market practice for the use of such alternative reference rate for debt obligations such as the Notes. |
| (b) | If the Calculation Agent has not selected an alternative reference rate as a substitute interest rate for the Notes as provided above, the following will apply: |
| (i) | If the rate described in the second paragraph of this subsection does not appear on Reuters Page EURIBOR01 (or any other page as may replace Reuters page EURIBOR01) or is not so published by 11:00 A.M., Brussels Time, on the applicable Interest Determination Date, EURIBOR for such Interest Determination Date will be the rate calculated by the Calculation Agent as the arithmetic mean of at least two quotations obtained by the Calculation Agent after requesting the principal Euro-zone offices of four major banks in the Euro-zone interbank market, which may include the Issuer, as selected by the Calculation Agent, to provide the Calculation Agent with its offered quotation for interbank term deposits in euro for the Index Maturity designated on the face hereof, commencing on the applicable Interest Reset Date, to prime banks in the Euro-zone interbank market at approximately 11:00 A.M., Brussels Time, on the applicable Interest Determination Date and in a principal amount not less than the equivalent of U.S.$1,000,000 in euro that is representative for a single transaction in euro in such market at such time. |
9
| (ii) | If fewer than two quotations are so provided, EURIBOR for such Interest Determination Date shall be calculated by the Calculation Agent and shall be the arithmetic mean of the rates quoted at approximately 11:00 A.M., Brussels Time, on such Interest Determination Date by four major banks in the Euro-zone interbank market, as selected by the Calculation Agent, for loans in euro to leading European banks, having the Index Maturity designated on the face hereof commencing on the applicable Interest Reset Date in a principal amount not less than the equivalent of U.S.$1,000,000 in euro that is representative for a single transaction in euro in such market at such time. |
| (iii) | If the banks so selected by the Calculation Agent are not providing quotations as set forth above, then the Calculation Agent, after consulting such sources as it deems comparable to any of the foregoing quotations or display page, or any such source as it deems reasonable from which to estimate EURIBOR with the relevant Index Maturity, will determine EURIBOR for that Interest Determination Date in its sole discretion. |
Determination of Compounded SOFR. If the Base Rate specified on the face hereof is “Compounded SOFR,” then the terms and provisions of this section “Determination of Compounded SOFR” will apply.
The Calculation Agent will determine Compounded SOFR, the interest rate and accrued interest for each Interest Period in arrears as soon as reasonably practicable on or after the last day of the applicable Observation Period, and in any event on or prior to the Business Day immediately preceding the relevant Interest Payment Date, and will notify the Issuer of Compounded SOFR and such interest rate and accrued interest for each Interest Period as soon as reasonably practicable after such determination, but in any event by the Business Day immediately prior to the Interest Payment Date.
Unless otherwise specified on the face hereof, the “Observation Period” in respect of each Interest Period for a Note will be the period from, and including, the date that is two U.S. Government Securities Business Days preceding the first date in such Interest Period to, but excluding, the date that is two U.S. Government Securities Business Days preceding the Interest Payment Date for such Interest Period.
“Compounded SOFR” means, with respect to any applicable Interest Period, the rate of return of a daily compounded interest investment over the Observation Period corresponding to that Interest Period, calculated as follows:
“d0”, for any Observation Period, is the number of U.S. Government Securities Business Days in the relevant Observation Period.
“i” is a series of whole numbers from one to d0, each representing the relevant U.S. Government Securities Business Days in chronological order from, and including, the first U.S. Government Securities Business Day in the relevant Observation Period.
10
“SOFRi”, for any U.S. Government Securities Business Day “i” in the relevant Observation Period, is a reference rate equal to SOFR in respect of that day.
“ni” for any U.S. Government Securities Business Day “i” is the number of calendar days from, and including, such U.S. Government Securities Business Day “i” to, but excluding, the following U.S. Government Securities Business Day “i+1”.
“d” is the number of calendar days in the relevant Observation Period.
For these calculations, the daily SOFR in effect on any U.S. Government Securities Business Day will be the applicable SOFR as reset on that date.
For purposes of determining Compounded SOFR, “SOFR” means, with respect to any U.S. Government Securities Business Day:
| (1) | the Secured Overnight Financing Rate in respect of such U.S. Government Securities Business Day as published by the New York Federal Reserve, as the administrator of such rate (or a successor administrator), on the New York Federal Reserve’s Website on or about 5:00 p.m. (New York City time) on the immediately following U.S. Government Securities Business Day; or |
| (2) | if the Secured Overnight Financing Rate in respect of such U.S. Government Securities Business Day does not appear as specified in paragraph (1), unless both a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the Secured Overnight Financing Rate in respect of the last U.S. Government Securities Business Day for which such rate was published on the New York Federal Reserve’s Website; or |
| (3) | if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred: |
| • | the sum of: (a) the alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark and (b) the Benchmark Replacement Adjustment; or |
| • | the sum of: (a) the ISDA Fallback Rate and (b) the Benchmark Replacement Adjustment; or |
| • | the sum of: (a) the alternate rate of interest that has been selected by the Issuer or its designee as the replacement for the then-current Benchmark giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar-denominated floating rate notes at such time and (b) the Benchmark Replacement Adjustment. |
“Benchmark” means the Compounded SOFR as defined above; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the Compounded SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement.
11
“Benchmark Replacement” means the first alternative set forth in the order presented in clause (3) of the definition of “SOFR” that can be determined by the Issuer or its designee as of the Benchmark Replacement Date. In connection with the implementation of a Benchmark Replacement, the Issuer or its designee will have the right to make Benchmark Replacement Conforming Changes from time to time.
“Benchmark Replacement Adjustment” means the first alternative set forth in the order below that can be determined by the Issuer or its designee as of the Benchmark Replacement Date:
| (1) | the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement; |
| (2) | if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, then the ISDA Fallback Adjustment; |
| (3) | the spread adjustment (which may be a positive or negative value or zero) that has been selected by the Issuer or its designee giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated floating rate notes at such time. |
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definitions of “Interest Period” and “Observation Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that the Issuer or its designee decides may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if the Issuer or its designee decides that adoption of any portion of such market practice is not administratively feasible or if the Issuer or its designee determines that no market practice for use of the Benchmark Replacement exists, in such other manner as the Issuer or its designee determines is reasonably necessary).
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
| (1) | in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark; or |
| (2) | in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein. |
12
For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
| (1) | a public statement or publication of information by or on behalf of the administrator of the Benchmark announcing that such administrator has ceased or will cease to provide the Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark; |
| (2) | a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark, the central bank for the currency of the Benchmark, an insolvency official with jurisdiction over the administrator for the Benchmark, a resolution authority with jurisdiction over the administrator for the Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark, which states that the administrator of the Benchmark has ceased or will cease to provide the Benchmark permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark; or |
| (3) | a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative. |
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
“ISDA Fallback Adjustment” means the spread adjustment (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark.
“ISDA Fallback Rate” means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an index cessation date with respect to the Benchmark excluding the applicable ISDA Fallback Adjustment.
“New York Federal Reserve” means the Federal Reserve Bank of New York.
“New York Federal Reserve’s Website” means the website of the New York Federal Reserve, currently at http://www.newyorkfed.org, or any successor source.
“Reference Time” with respect to any determination of the Benchmark means the time determined by the Issuer or its designee in accordance with the Benchmark Replacement Conforming Changes.
13
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
“U.S. Government Securities Business Day” means any day except for a Saturday, Sunday or a day on which the Securities Industry and Financial Markets Association (or any successor thereto) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S. government securities.
“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
If a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, any determination, decision or election that may be made by the Issuer or its designee pursuant to this section “Compounded SOFR,” including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection:
| • | will be conclusive and binding absent manifest error; |
| • | will be made in the Issuer’s or its designee’s sole discretion; and |
| • | notwithstanding anything to the contrary in the documentation relating to the Notes, shall become effective without consent from the holders of the Notes or any other party. |
14
The Notes are intended to qualify as eligible liabilities instruments within the meaning of Articles 72a and 72b(2) CRR for the minimum requirement for own funds and eligible liabilities as applicable to the Issuer.
The obligations under the Notes constitute unsecured and unsubordinated non-preferred obligations of the Issuer under debt instruments (Schuldtitel) within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) or any successor provision. The obligations of the Issuer under the Notes shall rank pari passu among themselves and with all other unsecured and unsubordinated non-preferred obligations under debt instruments of the Issuer within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including the obligations under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act (Kreditwesengesetz)) or any successor provision.
In accordance with Section 46f(5) of the German Banking Act (Kreditwesengesetz), in the event of any Resolution Measures imposed on the Issuer or in the event of the dissolution, liquidation, insolvency or composition of the Issuer, or if other proceedings are opened for the avoidance of the insolvency of, or against, the Issuer, the obligations of the Issuer under the Notes shall rank junior to (i) the claims of unsubordinated creditors of the Issuer not qualifying as obligations under debt instruments (Schuldtitel) of the Issuer within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including the obligations under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act (Kreditwesengesetz)) or any successor provision, and (ii) eligible liabilities within the meaning of Article 72b(2) CRR where point (d) of such Article does not apply. In any such event, no amounts shall be payable in respect of the Notes until the claims of such unsubordinated creditors of the Issuer have been satisfied in full.
No subsequent agreement may enhance the seniority of the Issuer’s obligations under the Notes or shorten the term of any of the Notes or any applicable notice period. No Holder may set off or net its claims arising under the Notes against any claims of the Issuer. No collateral or guarantee shall be provided at any time to secure the claims of the Holders under the Notes; any collateral or guarantee already provided or granted in the future in connection with other liabilities of the Issuer may not be used for claims under the Notes. If the Notes are redeemed or repurchased otherwise than in accordance with the terms of the Notes, then the amounts paid must be returned to the Issuer irrespective of any agreement to the contrary.
This Note, and any Note or Notes issued upon transfer or exchange hereof, is issuable only in fully registered form, without coupons, and unless otherwise specified above, is issuable only in denominations of U.S. $1,000 and any integral multiple of U.S. $1,000 in excess thereof.
If “Office Substitution” is applicable to the Notes as specified on the face hereof, the Issuer may at any time, without the consent of the Holders or the Trustee, designate another Office of the Issuer as substitute for the Office through which the Issuer has acted to issue the Notes with the same effect as if such substitute Office had been originally named as the Office through which the Issuer had acted to issue the Notes for all purposes under the Indenture and the Notes. In order to give effect to such substitution, the Issuer shall give notice of such substitution to the Trustee and the Holders of the Notes. With effect from the substitution date, such substitute Office shall, without any amendment to this Note or entry into any supplemental indenture, assume all of the obligations of the originally-named Office as principal obligor under the Notes. “Office” means the Issuer’s head office or one of the Issuer’s branch offices.
15
DBTCA has been appointed Registrar for the Notes, and DBTCA will maintain at its office in The City of New York, a register for the registration and transfer of Notes. This Note may be transferred at either the aforesaid New York office of DBTCA by surrendering this Note for cancellation, accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Trustee and the Authenticating Agent and duly executed by the registered Holder hereof in person or by the Holder’s attorney duly authorized in writing, and thereupon the Trustee or the Authenticating Agent shall authenticate and deliver in the name of the transferee or transferees, in exchange herefor, a new Note or Notes having identical terms and provisions and having a like aggregate principal amount in authorized denominations, subject to the terms and conditions set forth herein; provided, however, that neither the Trustee nor the Authenticating Agent will be required to (i) register the transfer of or exchange any Note that has been called for redemption in whole or in part, except the unredeemed portion of Notes being redeemed in part or (ii) register the transfer of or exchange Notes to the extent and during the period so provided in the Indenture with respect to the redemption of Notes. Notes are exchangeable at said offices for other Notes of other authorized denominations of equal aggregate principal amount having identical terms and provisions. All such registrations, exchanges and transfers of Notes will be free of service charge, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge in connection therewith. All Notes surrendered for exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Trustee and the Authenticating Agent and executed by the registered Holder in person or by the Holder’s attorney duly authorized in writing. The date of registration of any Note delivered upon any exchange or transfer of Notes shall be such that no gain or loss of interest results from such exchange or transfer.
In case this Note shall at any time become mutilated, defaced or be destroyed, lost or stolen and this Note or evidence of the loss, theft or destruction thereof (together with the indemnity hereinafter referred to and such other documents or proof as may be required in the premises) shall be delivered to the Trustee and the Authenticating Agent, the Issuer in its discretion may execute a new Note of like tenor in exchange for this Note, but, in the case of any destroyed or lost or stolen Note, only upon receipt of evidence satisfactory to the Trustee, the Authenticating Agent and the Issuer that this Note was destroyed or lost or stolen and, if required, upon receipt also of indemnity satisfactory to each of them. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the owner of the Note mutilated, defaced, destroyed, lost or stolen.
An “Event of Default” with respect to this Note means the opening of insolvency proceedings against the Issuer by a German court having jurisdiction over the Issuer. There are no other events of default under this Note. If an Event of Default with respect to this Note occurs and is continuing, then, unless the principal of this Note shall have already become due and payable, either the Trustee or the Holder of not less than 33 1/3% in aggregate principal amount of all outstanding debt securities issued under the Indenture (treated as one class), by notice in writing to the Issuer (and to the Trustee if given by Holders), may declare the principal amount of this Note and interest accrued thereon to be due and payable immediately in accordance with the terms of the Indenture.
16
Subject to Section 5.02 of the Indenture, the Indenture provides for no right of acceleration in the case of a default in the payment of principal of, or interest on, or other amounts owing under this Note or a default in the performance of any other covenant of the Issuer under this Note or the Indenture (any such default in payment or default in performance, a “default”).
If an Event of Default or a default with respect to this Note occurs and is continuing, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to pursue any available remedy by proceedings at law or in equity to collect any principal of and interest on this Note due and unpaid, or to enforce the performance of any provision of this Note or the Indenture, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon this Note and collect in the manner provided by law out of the property of the Issuer or other obligor upon this Note, wherever situated, the monies adjudged or decreed to be payable.
If the face hereof indicates that this Note is subject to “Redemption for Regulatory Reasons,” then, the Issuer may redeem any series of the Notes in whole, but not in part, solely at the option of the Issuer at any time prior to the maturity date specified in the Related Prospectus at 100% of the applicable principal amount (subject to the imposition of a Resolution Measure) together with any accrued and unpaid interest to (but excluding) the date set for redemption. Any redemption of a Note prior to its scheduled maturity shall be subject to (i) receipt by the Issuer of the prior written approval of the competent resolution authority; (ii) there being a change in the regulatory classification of the Notes that would be likely to result in (1) their exclusion in full or in part from our eligible liabilities under the CRR; or (2) their reclassification as a lower quality of our eligible liabilities than as of the issue date; and (iii) compliance with any other regulatory requirements. If a Note is redeemed without prior written approval of the competent resolution authority, then the amounts paid on this Note must be returned to the Issuer irrespective of any agreement to the contrary. Notice of redemption will be given not less than 30 calendar days nor more than 60 calendar days prior to the date fixed for redemption or within the Redemption Notice Period specified in the Related Prospectus, which date and the applicable redemption price will be specified in the Notice.
If the face hereof indicates that this Note is subject to “Tax Redemption,” subject to approval by the competent resolution authority, the Issuer may redeem any series of the Notes in whole but not in part, solely at the option of the Issuer at any time prior to maturity, upon the giving of a Notice of redemption as described below, at a redemption price equal to 100% of the principal amount hereof, together with any accrued interest to the date fixed for redemption, if the Issuer determines that, as a result of any change in or amendment to the laws, or any regulations or rulings promulgated thereunder, of a Tax Jurisdiction (as defined below), or any change in official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment becomes effective on or after the Trade Date hereof, the Issuer has or will become obligated to pay Additional Amounts (as defined below), with respect to this Note as described below, provided that the change in the applicable tax treatment is material and was not reasonably foreseeable at the Original Issue Date. If this Note is redeemed by the Issuer without the approval of such competent resolution authority, then the amounts paid on this Note must be returned to the issuer irrespective of any agreement to the contrary. Prior to the giving of any Notice of redemption pursuant to this paragraph, the Issuer shall deliver to the Trustee (i) a certificate stating that the Issuer is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Issuer to so
17
redeem have occurred, and (ii) an opinion of independent legal counsel satisfactory to the Trustee to such effect based on such statement of facts; provided, that no such Notice of redemption shall be given earlier than 60 calendar days prior to the earliest date on which the Issuer would be obligated to pay such Additional Amounts if a payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 calendar days nor more than 60 calendar days prior to the date fixed for redemption or within the Redemption Notice Period specified on the face hereof, which date and the applicable redemption price will be specified in the Notice.
All interest amounts payable in respect of this Note shall be made without deduction or withholding for or on account of any present or future taxes, duties or governmental charges of any nature whatsoever imposed or levied by way of deduction or withholding by or on behalf of the Tax Jurisdiction (“Withholding Taxes”), unless such deduction or withholding is required by law.
“Tax Jurisdiction” means the Federal Republic of Germany, the United States or the jurisdiction of residence or incorporation of any successor corporation to the Issuer and the jurisdiction of any relevant issuing branch or any political subdivision or any taxing authority thereof or therein.
In the event of such withholding or deduction on payments of interest (but not in respect of the payment of any principal in respect of this Note) and if (but only if) the face hereof indicates that this Note is subject to “Payment of Additional Amounts,” the Issuer shall, to the fullest extent permitted by law, pay such additional amounts (“Additional Amounts”) as will be necessary in order that the net amounts received by the Holders, after such withholding or deduction for or on account of any Withholding Taxes imposed upon or as a result of such payment by the Tax Jurisdiction, will equal the respective amounts which would otherwise have been receivable in the absence of such withholding or deduction; except that no such Additional Amounts shall be payable on account of any taxes, duties or governmental charges which:
| (a) | are payable by any person acting as custodian bank or collecting agent on the Holder’s or the Beneficial Owner’s behalf, or otherwise in any manner which does not constitute a deduction or withholding by the Issuer from payments of interest made by the Issuer; or |
| (b) | in the case of U.S. federal income taxes, are imposed on interest received by or on behalf of (1) a 10-percent shareholder (as defined in Section 871(h)(3)(B) of the U.S. Internal Revenue Code of 1986 (the “Code”) and the regulations that may be promulgated thereunder) of the Issuer, (2) a controlled foreign corporation that is related to the Issuer within the meaning of Section 864(d)(4) of the Code, or (3) a bank receiving interest described in Section 881(c)(3)(A) of the Code, to the extent such tax, assessment or other governmental charge would not have been imposed but for the Holder’s or Beneficial Owner’s status as described in clauses (1) through (3) of this paragraph; or |
18
| (c) | would not be payable to the extent such deduction or withholding could be avoided or reduced if the Holder or the Beneficial Owner (or any financial institution through which the Holder or the Beneficial Owner holds the Notes or through which payment on the Notes is made) (i) makes a declaration of non-residence or other similar claim for exemption to the relevant tax authority or complies with any reasonable certification, documentation, information or other reporting requirement imposed by the relevant tax authority or (ii) enters into or complies with any applicable certification, identification, information, documentation, registration, or other reporting requirement or agreement concerning accounts maintained by the Holder or the Beneficial Owner (or such financial institution) or concerning the Holder’s or the Beneficial Owner’s (or financial institution’s) ownership or concerning the Holder’s or the Beneficial Owner’s (or such financial institution’s) nationality, residence, identity or connection with the jurisdiction imposing such tax; or |
| (d) | are payable by reason of the Holder’s or the Beneficial Owner’s having, or having had, some personal or business connection with the Tax Jurisdiction and not merely by reason of the fact that payments in respect of the Notes are, or for purposes of taxation are deemed to be, derived from sources in, or are secured in, the Tax Jurisdiction; or |
| (e) | are presented for payment more than 30 days after the Relevant Date (as defined below) except to the extent that the Holder or the Beneficial Owner would have been entitled to Additional Amounts on presenting the same for payment on the last day of the period of 30 days assuming that day to have been a Business Day; or |
| (f) | are deducted or withheld by a paying agent from a payment if the payment could have been made by another paying agent without such deduction or withholding; or |
| (g) | would not be payable if the Notes had been kept in safe custody with, and the payments had been collected by, a banking institution; or |
| (h) | are required to be deducted or withheld from a payment or deemed payment that is treated as a “dividend equivalent” payment under the Code, Treasury regulations, or other law or official guidance of the United States; or |
| (i) | are imposed or withheld by reason of the application of sections 1471 through 1474 of the Code (or any successor provisions) any regulation, ruling, assessment, or agreement thereunder, official interpretations or administrative guidance thereof or thereunder, or any law, regulation or administrative guidance implementing an intergovernmental approach thereto, whether currently in effect or as published and amended from time to time; or |
| (j) | are payable by reason of a change in law or practice that becomes effective more than 30 days after the relevant payment of interest becomes due, or is duly provided for and notice thereof is given in accordance with the Section 12.04 of the Indenture, whichever occurs later. |
No Additional Amounts or any other amounts shall be payable on account of any such withholding or deduction in respect of payments of principal.
19
“Relevant Date” means the date on which the payment first becomes due but, if the full amount payable has not been received by the paying agent on or before the due date, it means the date on which, the full amount having been so received.
The terms and conditions set forth in the following paragraphs (a) – (k) shall apply to this Note, and by acquiring this Note, the Holder and each Beneficial Owner of this Note shall be bound by and shall be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority.
| (a) | Under the relevant resolution laws and regulations as applicable to the Issuer from time to time, this Note may be subject to the powers exercised by the competent resolution authority to: |
| (i) | write down, including write down to zero, the claims for payment of the principal amount, the interest amount, if any, or any other amount in respect of this Note; |
| (ii) | convert this Note into ordinary shares of (A) the Issuer or (B) any group entity or (C) any bridge bank or other instruments of ownership of such entities qualifying as common equity tier one capital (and the issue to or conferral on the Holder (including each Beneficial Owner) of such ordinary shares or instruments); and/or |
| (iii) | apply any other resolution measure, including, but not limited to, (A) any transfer of this Note to another entity, (B) the amendment, modification or variation of the terms and conditions of this Note or (C) the cancellation of this Note; |
(each, a “Resolution Measure”).
For the avoidance of doubt, any non-payment by the Issuer arising out of any such Resolution Measure will not constitute a failure by the Issuer under the terms of this Note or the Indenture to make a payment of principal of, interest on, or other amounts owing under this Note.
| (b) | By its acquisition of this Note, the Holder (including each Beneficial Owner) of this Note shall be deemed irrevocably to have agreed: |
| (i) | to be bound by, to acknowledge and to accept any Resolution Measure and any amendment, modification or variation of the terms and conditions of this Note to give effect to any Resolution Measure; |
| (ii) | that it will have no claim or other right against the Issuer arising out of any Resolution Measure; and |
| (iii) | that the imposition of any Resolution Measure will not constitute an Event of Default or a default (A) under this Note, (B) under the Indenture or (C) for the purpose of, but only to the fullest extent permitted by, the Trust Indenture Act (including, without limitation, Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act) and applicable law. |
20
| (c) | The terms and conditions of this Note shall continue to apply in relation to the residual principal amount of, or outstanding amount payable in respect of, this Note, subject to any modification of the amount of interest payable, if any, to reflect the reduction of the principal amount, and any further modification of the terms that the competent resolution authority may decide in accordance with applicable laws and regulations relating to the resolution of banks, banking group companies, credit institutions and/or investment firms incorporated in the Federal Republic of Germany. |
| (d) | No repayment of any then-current principal amount of this Note or payment of interest or any other amount thereon (to the extent of the portion thereof affected by the imposition of a Resolution Measure) shall become due and payable after the imposition of any Resolution Measure by the competent resolution authority, unless such repayment or payment would be permitted to be made by the Issuer under the laws and regulations of the Federal Republic of Germany then applicable to the Issuer. |
| (e) | By its acquisition of this Note, the Holder (and each Beneficial Owner) of this Note waives, to the fullest extent permitted by the Trust Indenture Act and applicable law, any and all claims against the Trustee or the Agents for, agrees not to initiate a suit against the Trustee or the Agents in respect of, and agrees that the Trustee and the Agents shall not be liable for, any action that the Trustee or the Agents take, or abstain from taking, in either case in accordance with the imposition of a Resolution Measure by the competent resolution authority with respect to this Note. |
| (f) | Upon the imposition of a Resolution Measure by the competent resolution authority with respect to this Note, the Issuer shall provide a written notice directly to the clearing system or clearing systems and to the Holder in accordance with Section 12.04 of the Indenture as soon as practicable regarding such imposition of a Resolution Measure by the competent resolution authority for purposes of notifying the Holder of such occurrence. The Issuer shall also deliver a copy of such notice to the Trustee and the Agents for information purposes, and the Trustee and the Agents shall be entitled to rely, and will not be liable for relying, on the competent resolution authority and the Resolution Measure identified in such notice. Any delay or failure by the Issuer to give notice shall not affect the validity or enforceability of any Resolution Measure nor the effects thereof on this Note. |
| (g) | If this Note is called or being called for redemption by the Issuer, but the competent resolution authority has imposed a Resolution Measure with respect to this Note prior to the payment of the redemption amount, the relevant redemption notice, if any, shall be automatically rescinded and shall be of no force and effect, and no payment of the redemption amount will be due and payable. |
| (h) | Upon the imposition of any Resolution Measure by the competent resolution authority, the Trustee shall not be required to take any further directions from the Holders under Section 5.09 of the Indenture, which section authorizes Holders of a majority in aggregate principal amount of the debt securities issued under the Indenture at the time Outstanding to direct certain actions relating to such debt |
21
| securities, and if any such direction was previously given under Section 5.09 of the Indenture to the Trustee by the Holders, it shall automatically cease to be effective, be null and void and have no further effect. The Indenture shall impose no duties, obligations or liabilities upon the Trustee or the Agents whatsoever with respect to the imposition of any Resolution Measure by the competent resolution authority. The Trustee and the Agents shall be fully protected in acting or refraining from acting in accordance with a Resolution Measure. Notwithstanding the foregoing, if, following completion of the imposition of a Resolution Measure by the competent resolution authority, this Note remains outstanding, then the Trustee’s and each Agent’s duties under the Indenture shall remain applicable with respect to this Note following such completion to the extent that the Issuer, the Trustee and the Agents agree pursuant to a supplemental indenture, unless the Issuer, the Trustee and the Agents agree that a supplemental indenture is not necessary. |
| (i) | By the acquisition of this Note, the Holder and each Beneficial Owner of this Note shall be deemed irrevocably to have (i) consented to the imposition of any Resolution Measure as it may be imposed without any prior notice by the competent resolution authority of its decision to exercise such power with respect to this Note, (ii) authorized, directed and requested the Depositary and any direct participant in the Depositary or other intermediary through which it holds this Note to take any and all necessary action, if required, to implement the imposition of any Resolution Measure with respect to this Note as it may be imposed, without any further action or direction on the part of the Holder of this Note, the Trustee or the Agents and (iii) acknowledged and accepted that the provisions contained in Article 6 of the Indenture are exhaustive on the matters described in Article 6 of the Indenture to the exclusion of any other agreements, arrangements or understandings between it and the Issuer relating to the terms and conditions of this Note. |
| (j) | If the competent resolution authority imposes a Resolution Measure with respect to less than the total outstanding principal amount of the debt securities issued under the Indenture, unless the Trustee or the Agents are otherwise instructed by the Issuer or the competent resolution authority, any cancellation, write-off or conversion into equity made in respect of such debt securities pursuant to the Resolution Measure will be made on a substantially pro rata basis among any series of debt securities issued under the Indenture. |
| (k) | Any obligations of the Holders to indemnify the Trustee and the Agents under the Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or this Note. To the extent not otherwise specifically precluded by a Resolution Measure (whether or not such Resolution Measure is expressly referring to the relevant indemnities or is precluding the relevant indemnities generally), the Issuer’s obligations to indemnify the Trustee and the Agents in accordance with Sections 7.02 and 7.06 of the Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or this Note. |
22
The Indenture permits the Issuer and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the debt securities of all series issued under the Indenture then outstanding and affected (voting as one class), to execute supplemental indentures adding any provisions to or changing in any manner the rights of the Holders of each series so affected; provided that the Issuer and the Trustee may not, without the consent of the Holder of each outstanding debt security affected thereby, (a) extend the final maturity of any such debt security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof, or change the currency of payment thereof, or modify or amend the provisions for conversion of any currency into any other currency, or impair or affect the rights of any Holder to institute suit for the payment thereof or (b) reduce the aforesaid percentage in principal amount of debt securities the consent of the Holders of which is required for any such supplemental indenture. The Issuer and the Trustee may, without the consent of the Holder of this Note, conform the terms of this Note to the description thereof in the prospectus and prospectus supplements relating to the offering and sale of this Note. No subsequent agreement shall make the principal and interest payable on any series of the Notes payable in different coins or currencies, i.e., the relevant coin or currency must always be identical for the relevant series of the Notes.
So long as this Note shall be outstanding, the Issuer will cause to be maintained an office or agency for the payment of the principal of and premium, if any, and interest, if any, on this Note as herein provided in the United States, and an office or agency in the United States for the registration, transfer and exchange as aforesaid of this Note. The Issuer may designate other agencies for the payment of said principal, premium and interest at such place or places outside the United States (subject to applicable laws and regulations) as the Issuer may decide. So long as there shall be such an agency, the Issuer shall keep the Trustee advised of the names and locations of such agencies, if any are so designated.
23
With respect to moneys paid by the Issuer and held by the Trustee or any Paying Agent for payment of the principal of or interest or premium, if any, on any Notes that remain unclaimed at the end of two years after such principal, interest or premium shall have become due and payable (whether at maturity or upon call for redemption or otherwise), (i) the Trustee or such Paying Agent shall notify the Holders of such Notes that such moneys shall be repaid to the Issuer and any person claiming such moneys shall thereafter look only to the Issuer for payment thereof and (ii) such moneys shall be so repaid to the Issuer. Upon such repayment all liability of the Trustee or such Paying Agent with respect to such moneys shall thereupon cease, without, however, limiting in any way any obligation that the Issuer may have to pay the principal of or interest or premium, if any, on this Note as the same shall become due.
Subject to the imposition of a Resolution Measure, no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the amount of cash as determined in accordance with the provisions set forth on the face of this Note due with respect to the principal of, premium, if any, and interest, if any, on this Note at the time, place, and rate, and in the coin or currency, herein prescribed unless otherwise agreed between the Issuer and the registered Holder of this Note.
Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Holder in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if any, or the interest, if any, on this Note, for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Issuer or of any successor corporation, either directly or through the Issuer or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
This Note shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the State of New York, except as may otherwise be required by mandatory provisions of law and except with respect to the provisions in this Note and in the second to fourth paragraphs of Section 2.03 of the Indenture, in each case, relating to the ranking of the Notes, which 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.
As used herein:
| (a) | the term “Beneficial Owner” shall mean the beneficial owners of this Note (and any interest therein); |
| (b) | the term “bridge bank” means 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 the event of the imposition of Resolution Measures; |
24
| (c) | the term “Business Day” means, unless otherwise provided on the face of this Note, any day other than a day that (i) is a Saturday or Sunday, (ii) is a day on which banking institutions generally in the City of New York are authorized or obligated by law, regulation or executive order to close, (iii) is a day on which transactions in U.S. Dollars are not conducted in the City of New York or (iv) a day on which T2 is not operating; |
| (d) | the term “competent resolution authority” means any authority with the ability to exercise a Resolution Measure; |
| (e) | the term “CRR” means Regulation (EU) No 575/2013 of the European Parliament and the Council of June 26, 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (including any provisions of regulatory law supplementing this Regulation); to the extent that any provisions of the CRR are amended or replaced, the term CRR as used in this Note shall refer to such amended provisions or successor provisions; |
| (f) | the term “Euro-zone” means the region comprising member states of the European Union that have adopted the single currency in accordance with the relevant treaty of the European Union, as amended; |
| (g) | the term “group entity” shall mean an entity that is included in the corporate group subject to a Resolution Measure; |
| (h) | the term “Notices” refers to notices to the Holders of the Notes at each Holder’s address as that address appears in the register for the Notes by first class mail, postage prepaid, and to be given by publication in an authorized newspaper in the English language and of general circulation in the Borough of Manhattan, The City of New York; provided that notice may be made, at the option of the Issuer, through the customary notice provisions of the clearing system or systems through which beneficial interests in this Note are owned. Such Notices will be deemed to have been given on the date of such publication (or other transmission, as applicable), or if published in such newspapers on different dates, on the date of the first such publication; |
| (i) | the term “Reuters page” means the display on Thomson Reuters Eikon, or any successor service, on the page or pages specified on the face hereof, or any replacement page or pages on that service; |
| (j) | the term “T2” means the real time gross settlement system operated by the Eurosystem, or any successor system; |
| (k) | the term “TARGET Settlement Day” means any day on which T2 is operating; and |
| (l) | the term “United States” means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction. |
All other terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
25
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
| TEN COM |
– | as tenants in common | ||
| TEN ENT |
– | as tenants by the entireties | ||
| JT TEN |
– | as joint tenants with right of survivorship and not as tenants in common |
UNIF GIFT MIN ACT – Custodian
| (Minor) |
(Cust) |
Under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
26
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and appointing such person attorney to transfer such Note on the books of the Issuer, with full power of substitution in the premises.
Dated:
| NOTICE: | The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever. |
27
EXHIBIT 4.7(b)
FIRST SUPPLEMENTAL SUBORDINATED INDENTURE
AMONG
DEUTSCHE BANK AKTIENGESELLSCHAFT
Issuer
AND
WILMINGTON TRUST, NATIONAL ASSOCIATION
Trustee
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
Paying Agent, Transfer Agent, Registrar and Authenticating Agent
Dated as of April 26, 2024
Supplemental to the Amended and Restated Subordinated Indenture
Dated as of August 3, 2021
TABLE OF CONTENTS
| ARTICLE 1 AMENDMENTS TO THE INDENTURE | 1 | |||||
| Section 1.01 | Modification of Certain Terms Defined |
1 | ||||
| Section 1.02 | Amount Unlimited; Issuable in Series |
2 | ||||
| Section 1.03 | Supplemental Indentures With Consent of Securityholders |
5 | ||||
| Section 1.04 | Governing Law |
6 | ||||
| Section 1.05 | Submission to Jurisdiction |
6 | ||||
| Section 1.06 | Redemption of Securities |
6 | ||||
| ARTICLE 2 MISCELLANEOUS PROVISIONS | 7 | |||||
| Section 2.01 | Further Assurances |
7 | ||||
| Section 2.02 | Other Terms of Indenture |
7 | ||||
| Section 2.03 | Terms Defined |
7 | ||||
| Section 2.04 | Governing Law |
7 | ||||
| Section 2.05 | Counterparts |
7 | ||||
| Section 2.06 | Responsibility of the Trustee |
8 | ||||
i
THIS FIRST SUPPLEMENTAL SUBORDINATED INDENTURE, dated as of April 26, 2024 among DEUTSCHE BANK AKTIENGESELLSCHAFT (the “Issuer”), WILMINGTON TRUST, NATIONAL ASSOCIATION, as trustee (the “Trustee”), and DEUTSCHE BANK TRUST COMPANY AMERICAS (“DBTCA”), as Paying Agent, Transfer Agent, 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 Amended and Restated Subordinated Indenture, dated as of August 3, 2021, among the Issuer, the Trustee and DBTCA (the “Indenture”);
WHEREAS, Section 9.01(c) of the Indenture provides that, without the consent of the Holders of any Securities, the Issuer and the Trustee may enter into indentures supplemental to the Indenture for the purpose of, among other things, making any provisions as the Issuer may deem necessary or desirable; provided that no such action shall adversely affect the interests of the Holders of the Securities or Coupons;
WHEREAS, there are no Outstanding Securities of any series created prior to the execution of this First Supplemental Subordinated Indenture which are entitled to the benefit of the provisions set forth herein or would be adversely affected by such provisions;
WHEREAS, the Issuer desires and the Trustee has agreed to amend Sections 1.01, 2.03, 9.02, 12.06, 12.08 and 13.01 of the Indenture with respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Subordinated Indenture;
WHEREAS, the entry into this First Supplemental Subordinated Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture; and
WHEREAS, all things necessary to make this First Supplemental Subordinated Indenture a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises, the Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Securities as follows:
ARTICLE 1
AMENDMENTS TO THE INDENTURE
Section 1.01 Modification of Certain Terms Defined. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Subordinated Indenture, the definitions of “Priority Claims” and “Responsible Officer” in Section 1.01 of the Indenture are amended and restated as follows (which shall be deemed to arise in Section 1.01 in its proper alphabetical order):
““Priority Claims” means claims against, and obligations of, the Issuer which do not qualify as Own Funds Instruments; this includes (i) all claims of unsubordinated creditors of the Issuer (including claims against the Issuer under its unsecured and unsubordinated non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including obligations of the Issuer under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) sentence 2 of the German Banking Act) (or any successor provision thereof)), (ii) the claims specified in Section 39(1) nos. 1 to 5 of the German Insolvency Code (Insolvenzordnung) (or any successor provision thereof), (iii) contractually subordinated obligations of the Issuer within the meaning of Section 39(2) of the German Insolvency Code (or any successor provision thereof) which do not qualify as Own Funds Instruments at the time Resolution Measures are imposed on the Issuer or in the event of a dissolution, liquidation, insolvency, composition or other proceedings for the avoidance of insolvency of, or against, the Issuer, and (iv) other contractually subordinated obligations of the Issuer within the meaning of Section 46f(7a) sentences 3 and 4 of the German Banking Act (or any successor provision thereto).”
““Responsible Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of such Trustee, including any vice president, assistant vice president, trust officer or any other officer of such Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers who shall have direct responsibility for the administration of this Indenture, or any other officer of such Trustee to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject.”
Section 1.02 Amount Unlimited; Issuable in Series. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Subordinated Indenture, Section 2.03 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities are intended to qualify as Own Funds Instruments of the Issuer in the form of Tier 2 instruments (Instrumente des Ergänzungskapitals) within the meaning of Article 63 of the CRR (“Tier 2 Instruments”). The obligations under the Securities shall constitute unsecured and subordinated obligations of the Issuer, ranking pari passu among themselves and, pari passu with all other equally subordinated obligations of the Issuer from time to time constituting Own Funds Instruments in the form of Tier 2 Instruments. In the event of Resolution Measures being imposed on the Issuer or in the event of the dissolution, liquidation, insolvency (Insolvenzverfahren), composition or other proceedings for the avoidance of insolvency of, or against, the Issuer, the obligations under the Securities shall be fully subordinated to all Priority Claims. In any such event, no amounts shall be payable in respect of the Securities until all Priority Claims have been satisfied in full. If the Securities are deemed not to have qualified as Tier 2 Instruments or other Own Funds Instruments or at any time cease to so qualify, the obligations under the Securities will rank, pursuant to Section 46f(7a) sentence 3 of the German Banking Act, senior to all obligations under Own Funds Instruments.
2
The Securities may be issued in one or more series and each such series shall rank equally and pari passu with all other unsecured and equally subordinated debt (it being understood that no Priority Claims constitute such equally subordinated obligations) of the Issuer, except as otherwise provided by applicable law or the terms of any other indebtedness, and in particular, if such debt is expressed to rank junior to the Securities, then the Securities shall rank senior to such junior debt, but junior to the Priority Claims, except as otherwise provided by applicable law.
Notwithstanding anything to the contrary set forth herein, but to the extent not otherwise precluded by a Resolution Measure or the application of mandatory aspects of insolvency law, the prior claims against the Issuer under Section 7.06 of this Indenture shall not be subordinated to the Priority Claims and shall survive the imposition of a Resolution Measure by the competent resolution authority in the priority set forth in Section 5.03 hereof, in each case.
No subsequent agreement shall (i) limit, or shall have the effect of limiting, the subordination of the Securities as provided for herein; (ii) amend any provision establishing the maturity date or any date on which a redemption option, if any, may be exercised with respect to any of the Securities to provide for an earlier date; or (iii) shorten any applicable notice period.
No Holder may set off or net its claims arising under the Securities against any claims of the Issuer. No collateral or guarantee shall be provided at any time to secure the claims of the Holders under the Securities; any collateral or guarantee already provided or granted in the future in connection with other liabilities of the Issuer may not be used for claims under the Securities.
If the Securities are redeemed or repurchased otherwise than in accordance with the terms of the Securities, then the amounts paid must be returned to the Issuer irrespective of any agreement to the contrary.
There shall be established in one or more Board Resolutions, in one or more Officers’ Certificates detailing such establishment or in one or more indentures supplemental hereto, prior to the initial issuance of Securities of any series:
(a) the designation of the Securities of the series, which shall distinguish the Securities of the series from the Securities of all other series;
(b) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09, 2.11, 9.05 or 13.03);
(c) if other than U.S. Dollars, the coin or currency in which the Securities of that series are denominated (including, but not limited to, any Non-U.S. Currency);
3
(d) the date or dates on which the principal of the Securities of the series is payable (and any provisions relating to extending or shortening the date on which the principal of the Securities is payable);
(e) the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, on which such interest shall be payable and (in the case of Registered Securities) on which a record shall be taken for the determination of Holders to whom interest is payable and/or the method by which such rate or rates or date or dates shall be determined;
(f) the place or places where the principal of and any interest on Securities of the series shall be payable (if other than as provided in Section 3.02);
(g) the right, if any, of the Issuer to redeem Securities, in whole or in part, at its option and the period or periods within which, the price or prices at which and any terms and conditions, including the Redemption Notice Period, upon which Securities of the series may be so redeemed;
(h) [intentionally omitted]
(i) if other than denominations of $1,000 and any integral multiple thereof in the case of Registered Securities, or $1,000 and any integral multiple thereof in the case of Bearer Securities, the denominations in which Securities of the series shall be issuable;
(j) [intentionally omitted]
(k) [intentionally omitted]
(l) [intentionally omitted]
(m) [intentionally omitted]
(n) whether the Securities of the series will be issuable as Registered Securities (and if so, whether such Securities will be issuable as Registered Global Securities) or Bearer Securities (with or without Coupons), or any combination of the foregoing, any restrictions applicable to the offer, sale, transfer, exchange or delivery of Bearer Securities or Registered Securities or the payment of interest thereon and, if other than as provided in Section 2.08, the terms upon which Bearer Securities of any series may be exchanged for Registered Securities of such series and vice versa;
(o) whether and under what circumstances the Issuer will pay additional amounts on the Securities of the series held by a Person who is not a U.S. Person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem such Securities rather than pay such additional amounts;
(p) if the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
4
(q) any trustees, depositaries, authenticating or Paying Agents, transfer agents or registrars or any other agents with respect to the Securities of such series;
(r) any deletions from, additions to or modifications of the covenants of the Issuer with respect to the Securities of such series;
(s) [intentionally omitted]
(t) whether the debt securities qualify for regulatory capital treatment and, if so, the category of capital for which they qualify; and
(u) any other terms of the series.
All Securities of any one series and Coupons, if any, appertaining thereto, shall be substantially identical, except in the case of Registered Securities as to denomination and except as may otherwise be provided by the Board Resolution or Officers’ Certificate referred to above or as set forth in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by such Board Resolution, such Officers’ Certificate or in any such indenture supplemental hereto; provided, however, that additional Securities shall be issued under a separate CUSIP or ISIN number unless the additional Securities are issued pursuant to a “qualified reopening” of the original series, are otherwise treated as part of the same “issue” of debt instruments as the original series or are issued with less than a de minimis amount of original issue discount, in each case for U.S. federal income tax purposes.”
Section 1.03 Supplemental Indentures With Consent of Securityholders. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Subordinated Indenture, the first paragraph of Section 9.02 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 9.02. Supplemental Indentures With Consent of Securityholders. Subject to the prior consent of the competent supervisory authority in respect of Outstanding Securities of any series, if required under the CRR or other applicable laws and regulations for the recognition of the Securities as Tier 2 capital, and with the consent (evidenced as provided in Article 8) of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series affected by such supplemental indenture (voting as one class), the Issuer, when authorized by a resolution of its Board (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order), and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series or of the Coupons appertaining to such Securities; provided, that no such supplemental indenture shall
5
(a) (i) change the final maturity of any Security, (ii) reduce the principal amount thereof, (iii) reduce the rate or change the time of payment of interest thereon, (iv) reduce any amount payable on redemption thereof, (v) make the principal thereof (including any amount in respect of original issue discount), and interest thereon payable in any coin or currency other than that provided in the Securities and Coupons or in accordance with the terms thereof, (vi) modify or amend any provisions for converting any currency into any other currency as provided in the Securities or Coupons or in accordance with the terms thereof, (vii) reduce the amount of the principal of an Original Issue Discount Security that would be provable in bankruptcy pursuant to Section 5.02, (viii) alter the provisions of Section 12.11 or 12.12 or impair or affect the right of any Securityholder to institute suit for the payment thereof or, if the Securities provide therefor, any right of repayment at the option of the Securityholder, (ix) modify the provisions of this Indenture with respect to the subordination of the Securities in a manner adverse to the Holders, in each case without the consent of the Holder of each Security so affected; or (b) reduce the aforesaid percentage of Securities of any series, the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holders of each Security so affected. No subsequent agreement shall make the principal and interest payable on any Securities or Coupons, as the case may be, payable in different coins or currencies, i.e., the relevant coin or currency must always be identical for the relevant series of Securities and Coupons, as the case may be.”
Section 1.04 Governing Law. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Subordinated Indenture, Section 12.08 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 12.08. Governing Law. This Indenture and each Security and Coupon 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 the State of New York, except with respect to the provisions relating to the subordination of the Securities set forth in the second and third paragraph of Section 2.03, which 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 1.05 Submission to Jurisdiction. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Subordinated Indenture, the first sentence of Section 12.11 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 12.11. Submission to Jurisdiction. The Issuer agrees that any legal suit, action or proceeding arising out of or based upon this Indenture may be instituted in any U.S. state or federal court 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 jurisdiction of such court in any suit, action or proceeding.”
Section 1.06 Redemption of Securities. With respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Subordinated Indenture, Section 13.01 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
6
“Section 13.01. Applicability of Article; Approval by Competent Supervisory Authority. The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity except as otherwise contemplated by Section 2.03 for Securities of such series. Any redemption of Securities of any series prior to their stated maturity shall be at the option of the Issuer only and subject to (i) receipt by the Issuer of prior written approval of the competent supervisory authority, and no redemption shall occur before the fifth anniversary of the respective issuance date, except where the conditions set out in Article 78(4) of the CRR are met; (ii) compliance with any other regulatory requirements; and (iii) the requirements set forth in Section 2.03.”
ARTICLE 2
MISCELLANEOUS PROVISIONS
Section 2.01 Further Assurances. The Issuer will upon request by the Trustee, execute and deliver such further instruments and do such further acts as may reasonably be necessary or proper to carry out more effectively the purposes of this First Supplemental Subordinated Indenture.
Section 2.02 Other Terms of Indenture. Except insofar as herein otherwise expressly provided, all provisions, terms and conditions of the Indenture are in all respects ratified and confirmed and shall remain in full force and effect.
Section 2.03 Terms Defined. All terms defined elsewhere in the Indenture shall have the same meanings when used herein.
Section 2.04 Governing Law. This First Supplemental Subordinated Indenture shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the State of New York, except with respect to the provisions relating to the subordination of the Securities set forth in the second and third paragraph of Section 2.03 of the Indenture, which 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 First Supplemental Subordinated Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective as delivery of a manually executed counterpart of this First Supplemental Subordinated Indenture. Each of the parties to this First Supplemental Subordinated Indenture represents that it has undertaken commercially reasonable steps to verify the identity of each individual person executing any such counterparts via electronic signature on behalf of such party and has and will maintain sufficient records of the same. This First Supplemental Subordinated Indenture shall become effective when each party shall have received a counterpart hereof signed by all of the other parties to this First Supplemental Subordinated Indenture.
7
Section 2.06 Responsibility of the Trustee. The recitals contained herein shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Subordinated Indenture or the Securities.
[SIGNATURE PAGE FOLLOWS]
8
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Subordinated Indenture to be duly executed, all as of the date first written above.
| DEUTSCHE BANK AKTIENGESELLSCHAFT | ||
| By: | /s/ Andrew Rivas | |
| Name: Andrew Rivas | ||
| Title: Director | ||
| By: | /s/ VyVy Huynh | |
| Name: VyVy Huynh | ||
| Title: Vice President | ||
| WILMINGTON TRUST, | ||
| NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Barry D. Somrock | |
| Name: Barry D. Somrock | ||
| Title: Vice President | ||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Paying Agent, Transfer Agent, Registrar and Authenticating Agent | ||
| By: | /s/ Chris Niesz | |
| Name: Chris Niesz | ||
| Title: Vice President | ||
| By: | /s/ Sebastian Hidalgo | |
| Name: Sebastian Hidalgo | ||
| Title: Assistant Vice President | ||
Exhibit 4.8(a)
DEUTSCHE BANK AG
[INSERT BRANCH OFFICE THROUGH WHICH THE NOTE IS ISSUED, IF APPLICABLE]
[FORM OF FACE OF DEBT SECURITY]
FIXED RATE REGISTERED SUBORDINATED TIER 2 NOTE
| REGISTERED | U.S. $[AGGREGATE PRINCIPAL AMOUNT] | |
| CERTIFICATE No. | CUSIP: | |
| ISIN: |
Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
SUBORDINATED TIER 2 NOTES
Fixed Rate Registered Subordinated Tier 2 Note
| Trade Date | [ ] | |
| Original Issue Date | [ ] | |
| Maturity Date | [ ] | |
| Principal Amount | [ ] | |
| Aggregate Principal Amount | [ ] | |
| Minimum Denominations | [ ] | |
| Interest Rate | [ ] | |
| Interest Payment Date(s) | [ ] | |
| Interest Period(s) | [ ] | |
| Interest Accrual Date | [ ] | |
| Resolution Measures Provisions | This Note will be subject to the Resolution Measures provisions provided in the Indenture and on the reverse hereof | |
| Office Substitution | [Applicable] | |
| Initial Redemption Date | [ ] | |
| Redemption Dates | [ ] | |
| Redemption Notice Period | [ ] | |
| Initial Redemption Percentage | [ ] | |
| Annual Redemption Percentage Reduction | [ ] | |
| Original Yield to Maturity | [ ] | |
| Tax Redemption | [ ] | |
| Redemption for Regulatory Reasons | [ ] | |
| Payment of Additional Amounts | [ ] | |
| Other Provisions | [ ] | |
2
Deutsche Bank Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany, if so specified, acting through the office specified on the front page of this Note, (together with its successors and assigns, the “Issuer”), for value received, hereby promises to pay to Cede & Co., or registered assignees, the amount of cash due with respect to the principal sum specified above on the Maturity Date specified above (except to the extent previously redeemed) and to pay interest thereon at the Interest Rate per annum specified above from and including the Interest Accrual Date specified above until but excluding the date the amount due with respect to the principal amount is paid or duly made available for payment (except as provided below) weekly, monthly, quarterly, semi-annually or annually in arrears on the Interest Payment Dates specified above in each year commencing on the Interest Payment Date next succeeding the Interest Accrual Date specified above, and at maturity (or on any redemption date); provided, however, that if the Interest Accrual Date occurs between a Record Date, as defined below, and the next succeeding Interest Payment Date, interest payments will commence on the second Interest Payment Date succeeding the Interest Accrual Date to the registered Holder of this Note on the Record Date with respect to such second Interest Payment Date.
Interest on this Note will accrue from, and including, the most recent Interest Payment Date to which interest has been paid or duly provided for, or, if no interest has been paid or duly provided for, from and including, the Interest Accrual Date, to, but excluding the next Interest Payment Date or the date the amount due with respect to the principal hereof has been paid or duly made available for payment (except as provided below). The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, subject to certain exceptions described herein, be paid to the person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the date that is one New York Banking Day immediately preceding the relevant date of payment with respect to such Interest Payment Date (each such date, a “Record Date”); provided, however, that any interest payable at maturity (or on any redemption date) will be payable to the person to whom the amount due with respect to the principal hereof shall be payable.
Payment of the amount due with respect to the principal, premium, if any, and any interest due on this Note will be made by wire transfer of immediately available funds at the office or agency of the Paying Agent (as defined on the reverse hereof), maintained for that purpose in the Borough of Manhattan, The City of New York, or at such other paying agency as the Issuer may determine, in U.S. Dollars.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, acting on behalf of the Trustee, referred to on the reverse hereof by manual or electronic signature (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com), this Note shall not be entitled to any benefit under the Indenture (as defined on the reverse hereof) or be valid or obligatory for any purpose.
3
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
| DATED: [ ] | DEUTSCHE BANK AG [INSERT BRANCH OFFICE THROUGH WHICH THE NOTE IS ISSUED, IF APPLICABLE] | |||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| CERTIFICATE OF AUTHENTICATION
This Note is one of the Securities referred to in the
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Authenticating Agent | ||
| By: | ||
| Authorized Officer | ||
4
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Subordinated Tier 2 Notes of the Issuer (the “Notes”). The Notes are issuable under an Amended and Restated Subordinated Indenture, dated as of August 3, 2021, among the Issuer, Wilmington Trust, National Association, as trustee (the “Trustee,” which term includes any successor trustee under the Indenture), and Deutsche Bank Trust Company Americas (“DBTCA”), as paying agent, transfer agent, registrar and authenticating agent, as amended and supplemented by the First Supplemental Subordinated Indenture dated as of April 26, 2024 (as amended or supplemented from time to time, the “Indenture”), to which Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities of the Issuer, the Trustee and Holders of the Notes and the terms upon which the Notes are, and are to be, authenticated and delivered. The Issuer has appointed DBTCA acting through its principal corporate trust office in the Borough of Manhattan, The City of New York, as its paying agent (the “Paying Agent,” which term includes any additional or successor Paying Agent appointed by the Issuer) with respect to the Notes. The Issuer has appointed DBTCA as the authenticating agent (the “Authenticating Agent,” which term includes any additional or successor Authenticating Agent appointed by the Issuer) to act on behalf of the Trustee to authenticate the Notes. The terms of individual Notes may vary with respect to interest rates, interest rate formulas, issue dates, maturity dates, or otherwise, all as provided in the Indenture. To the extent not inconsistent herewith, the terms of the Indenture are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund. Unless otherwise indicated on the face hereof, this Note will not be redeemable prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole or in part at the option of the Issuer on or after the Initial Redemption Date specified on the face hereof or on the Redemption Dates specified on the face hereof on the terms set forth on the face hereof, together with interest accrued and unpaid hereon to the date of redemption. Any redemption of this Note prior to its stated maturity shall be at the option of the Issuer only and subject to (i) receipt by the Issuer of prior written approval of the competent supervisory authority, and no redemption shall occur before the fifth anniversary of the respective issuance date, except where the conditions set out in Article 78(4) of the CRR are met; (ii) compliance with any other regulatory requirements; and (iii) the requirements set forth in Section 2.03 of the Indenture.
If this Note is subject to “Annual Redemption Percentage Reduction,” the Initial Redemption Percentage indicated on the face hereof will be reduced on each anniversary of the Initial Redemption Date by the Annual Redemption Percentage Reduction specified on the face hereof until the redemption price of this Note is 100% of the principal amount hereof, together with interest accrued and unpaid hereon to the date of redemption. Notice of redemption shall be mailed to the registered Holders of the Notes designated for redemption at their addresses as the same shall appear on the Note register not less than 30 calendar days nor more than 60 calendar days prior to the date fixed for redemption or within the Redemption Notice Period specified on the face hereof, subject to all the conditions and provisions of the Indenture. In the event of redemption of this Note in part only, a new Note or Notes for the amount of the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
5
Interest payments on this Note will include interest accrued to but excluding the Interest Payment Dates or the Maturity Date (or any earlier redemption date), as the case may be. Unless indicated otherwise on the face hereof, interest payments for this Note will be computed and paid on the basis of a 360-day year of twelve 30-day months.
In the case where the calendar date indicated on the face hereof as the Interest Payment Date or the Maturity Date (or any redemption date) does not fall on a Business Day or where the Interest Payment Date or the Maturity Date (or any redemption date) is postponed according to the terms and procedures specified on the face hereof, payment of interest, premium, if any, or principal otherwise payable on such calendar date need not be made on such date, but may be made on the immediately following Business Day with the same force and effect as if made on the indicated calendar date, and no interest on such payment shall accrue for the period from and after the indicated calendar date to such Business Day.
The Notes are intended to qualify as Own Funds Instruments of the Issuer in the form of Tier 2 instruments (Instrumente des Ergänzungskapitals) within the meaning of Article 63 of the CRR (“Tier 2 Instruments”).
The obligations under the Notes shall constitute unsecured and subordinated obligations of the Issuer, ranking pari passu among themselves and, pari passu with all other equally subordinated obligations of the Issuer from time to time constituting Own Funds Instruments in the form of Tier 2 Instruments. In the event of Resolution Measures being imposed on the Issuer or in the event of the dissolution, liquidation, insolvency (Insolvenzverfahren), composition or other proceedings for the avoidance of insolvency of, or against, the Issuer, the obligations under the Securities shall be fully subordinated to all Priority Claims. In any such event, no amounts shall be payable in respect of the Notes until all Priority Claims have been satisfied in full. If the Securities are deemed not to have qualified as Tier 2 Instruments or other Own Funds Instruments or at any time cease to so qualify, the obligations under the Securities will rank, pursuant to Section 46f(7a) sentence 3 of the German Banking Act (Kreditwesengesetz), senior to all obligations under Own Funds Instruments.
The Notes may be issued in one or more series and each such series shall rank equally and pari passu with all other unsecured and equally subordinated debt (it being understood that no Priority Claims constitute such equally subordinated obligations) of the Issuer, except as otherwise provided by applicable law or the terms of any other indebtedness, and in particular, if such debt is expressed to rank junior to the Notes, then the Notes shall rank senior to such junior debt, but junior to the Priority Claims, except as otherwise provided by applicable law.
Notwithstanding anything to the contrary set forth herein, but to the extent not otherwise precluded by a Resolution Measure or the application of mandatory aspects of insolvency law, the prior claims against the Issuer under Section 7.06 of the Indenture shall not be subordinated to the Priority Claims and shall survive the imposition of a Resolution Measure by the competent resolution authority in the priority set forth in Section 5.03 of the Indenture.
No subsequent agreement shall (i) limit, or shall have the effect of limiting, the subordination of the Notes as provided for herein; (ii) amend any provision establishing the maturity date or any date on which a redemption option, if any, may be exercised with respect to the Notes to provide for an earlier date; or (iii) shorten any applicable notice period.
6
No Holder may set off or net its claims arising under the Notes against any claims of the Issuer. No collateral or guarantee shall be provided at any time to secure the claims of the Holders under the Notes; any collateral or guarantee already provided or granted in the future in connection with other liabilities of the Issuer may not be used for claims under the Notes.
If the Notes are redeemed or repurchased otherwise than in accordance with the terms of the Notes, then the amounts paid must be returned to the Issuer irrespective of any agreement to the contrary.
This Note, and any Note or Notes issued upon transfer or exchange hereof, is issuable only in fully registered form, without coupons, and unless otherwise specified above, is issuable only in denominations of U.S. $1,000 and any integral multiple of U.S. $1,000 in excess thereof.
If “Office Substitution” is applicable to the Notes as specified on the face hereof, the Issuer may at any time, without the consent of the Holders or the Trustee, designate another Office of the Issuer as substitute for the Office through which the Issuer has acted to issue the Notes with the same effect as if such substitute Office had been originally named as the Office through which the Issuer had acted to issue the Notes for all purposes under the Indenture and the Notes. In order to give effect to such substitution, the Issuer shall give notice of such substitution to the Trustee and the Holders of the Notes. With effect from the substitution date, such substitute Office shall, without any amendment to this Note or entry into any supplemental indenture, assume all of the obligations of the originally-named Office as principal obligor under the Notes. “Office” means the Issuer’s head office or one of the Issuer’s branch offices.
DBTCA has been appointed Registrar for the Notes, and DBTCA will maintain at its office in The City of New York, a register for the registration and transfer of Notes. This Note may be transferred at either the aforesaid New York office of DBTCA by surrendering this Note for cancellation, accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Trustee and the Authenticating Agent and duly executed by the registered Holder hereof in person or by the Holder’s attorney duly authorized in writing, and thereupon the Trustee or the Authenticating Agent shall authenticate and deliver in the name of the transferee or transferees, in exchange herefor, a new Note or Notes having identical terms and provisions and having a like aggregate principal amount in authorized denominations, subject to the terms and conditions set forth herein; provided, however, that neither the Trustee nor the Authenticating Agent will be required to (i) register the transfer of or exchange any Note that has been called for redemption in whole or in part, except the unredeemed portion of Notes being redeemed in part or (ii) register the transfer of or exchange Notes to the extent and during the period so provided in the Indenture with respect to the redemption of Notes. Notes are exchangeable at said offices for other Notes of other authorized denominations of equal aggregate principal amount having identical terms and provisions. All such registrations, exchanges and transfers of Notes will be free of service charge, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge in connection therewith. All Notes surrendered for exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Trustee and the Authenticating Agent and executed by the registered Holder in person or by the Holder’s attorney duly authorized in writing. The date of registration of any Note delivered upon any exchange or transfer of Notes shall be such that no gain or loss of interest results from such exchange or transfer.
7
In case this Note shall at any time become mutilated, defaced or be destroyed, lost or stolen and this Note or evidence of the loss, theft or destruction thereof (together with the indemnity hereinafter referred to and such other documents or proof as may be required in the premises) shall be delivered to the Trustee and the Authenticating Agent, the Issuer in its discretion may execute a new Note of like tenor in exchange for this Note, but, in the case of any destroyed or lost or stolen Note, only upon receipt of evidence satisfactory to the Trustee, the Authenticating Agent and the Issuer that this Note was destroyed or lost or stolen and, if required, upon receipt also of indemnity satisfactory to each of them. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the owner of the Note mutilated, defaced, destroyed, lost or stolen.
There are no defaults or events of default with respect to the Notes, there is no right of acceleration in the case of any non-payment of principal of, interest on or other amounts owing under the Notes or a failure by the Issuer to perform any other covenant under the Notes or under this Indenture, and under no circumstances may the Holders or the Trustee declare the principal amount of the Notes and interest accrued thereon to be due and payable. If the Issuer becomes subject to German insolvency proceedings, neither the Trustee (on behalf of the Holders for amounts due to them) nor any Holder will have any right to file a claim against the Issuer unless the competent insolvency court allows the filing of subordinated claims that rank on parity with the claims in respect of the Notes.
If the Issuer fails to make any payment of principal of, interest on, or other amounts owing under the Notes at such time as such payment is required to be made pursuant to the terms of the Notes (any such failure, a “Non-Payment Event”) and such Non-Payment Event is continuing, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to pursue any available remedy by proceedings at law or in equity to collect any principal of and interest on this Note due and unpaid, or to enforce the performance of any provision of this Note or the Indenture, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon this Note and collect in the manner provided by law out of the property of the Issuer or other obligor upon this Note, wherever situated, the monies adjudged or decreed to be payable.
If the face hereof indicates that this Note is subject to “Redemption for Regulatory Reasons,” then subject to the prior consent of the Issuer’s competent supervisory authority, the Issuer may redeem any series of the Notes, in whole but not in part, solely at the option of the Issuer at any time prior to the Maturity Date, at 100% of their then outstanding Principal Amount (subject to the imposition of any Resolution Measure) together with any accrued and unpaid interest to (but excluding) the date set for redemption if there is a change in the regulatory classification of the Notes that would be likely to result in (i) its exclusion in full or in part from the Issuer’s own funds under the CRR or any successor legislation, other than for reasons of an amortization in accordance with Article 64(2) of the CRR or as a consequence of a write down or conversion, as the case may be, or (ii) their reclassification as a lower quality of the Issuer’s own funds than as of the Original Issue Date, provided that the conditions in Article 78(4)(a) of the CRR are met, pursuant to which the Issuer’s competent supervisory authority may permit any such redemption only if it considers the change in the regulatory classification to be sufficiently certain and is satisfied that the regulatory reclassification of the Notes was not reasonably foreseeable at the Original Issue Date. Notice of such redemption will be given to the Holders of the Notes upon not less than 30 calendar days and not more than 60 calendar days prior to the
8
date fixed of redemption to the address of each Holder as that address appears upon the books maintained by the paying agent. Any such notice will be given in accordance with Section 13.02 of the Indenture only after the Issuer’s having received the consent of its competent supervisory authority. Subject to the imposition of any Resolution Measures, such notice will be irrevocable and shall state the date set for redemption and set forth a statement in summary form of the facts constituting the basis for the right to redeem.
If the face hereof indicates that this Note is subject to “Tax Redemption,” subject to the prior consent of the competent supervisory authority, the Issuer may redeem any series of the Notes, in whole but not in part, solely at the option of the Issuer at any time prior to maturity, upon the giving of a Notice of redemption as described below, at 100% of the then outstanding principal amount hereof (subject to the imposition of any Resolution Measure) together with any accrued and unpaid interest to (but excluding) the date set for redemption if, as a result of any change in, or amendment to, the laws or regulations prevailing in the Tax Jurisdiction (as defined below), which becomes effective on or after the Original Issue Date, or as a result of any application or official interpretation of such laws or regulations not generally known before the Original Issue Date, Withholding Taxes are or there is a substantial probability that they will be leviable on payments of interest in respect of this Note, and the Issuer would be obligated to pay Additional Amounts (as defined below), with respect to such Withholding Taxes, as described below, provided that the conditions in Article 78(4)(b) of the CRR are met, pursuant to which the Issuer’s competent supervisory authority may permit any such redemption only if it is satisfied that the change in the applicable tax treatment is material and was not reasonably foreseeable at the Original Issue Date. The Issuer may exercise such redemption right on giving not less than 30 days’ notice to the holder of this Note. No such notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Issuer would be obligated to withhold or pay Withholding Taxes in respect of payments of interest, were a payment in respect of this Note then made.
All interest amounts payable in respect of this Note shall be made without deduction or withholding for or on account of any present or future taxes, duties or governmental charges of any nature whatsoever imposed or levied by way of deduction or withholding by or on behalf of the Tax Jurisdiction (“Withholding Taxes”), unless such deduction or withholding is required by law.
“Tax Jurisdiction” means the Federal Republic of Germany, the United States or the jurisdiction of residence or incorporation of any successor corporation to the Issuer and the jurisdiction of any relevant issuing branch or any political subdivision or any taxing authority thereof or therein.
In the event of such withholding or deduction on payments of interest (but not in respect of the payment of any principal in respect of this Note) and if (but only if) the face hereof indicates that this Note is subject to “Payment of Additional Amounts,” the Issuer shall, to the fullest extent permitted by law, pay such additional amounts (“Additional Amounts”) as will be necessary in order that the net amounts received by the Holders, after such withholding or deduction for or on account of any Withholding Taxes imposed upon or as a result of such payment by the Tax Jurisdiction, will equal the respective amounts which would otherwise have been receivable in the absence of such withholding or deduction; except that no such Additional Amounts shall be payable on account of any taxes, duties or governmental charges which:
| (a) | are payable by any person acting as custodian bank or collecting agent on the Holder’s or the Beneficial Owner’s behalf, or otherwise in any manner which does not constitute a deduction or withholding by the Issuer from payments of interest made by the Issuer; or |
9
| (b) | in the case of U.S. federal income taxes, are imposed on interest received by or on behalf of (1) a 10-percent shareholder (as defined in Section 871(h)(3)(B) of the U.S. Internal Revenue Code of 1986 (the “Code”) and the regulations that may be promulgated thereunder) of the Issuer, (2) a controlled foreign corporation that is related to the Issuer within the meaning of Section 864(d)(4) of the Code, or (3) a bank receiving interest described in Section 881(c)(3)(A) of the Code, to the extent such tax, assessment or other governmental charge would not have been imposed but for the Holder’s or Beneficial Owner’s status as described in clauses (1) through (3) of this paragraph; or |
| (c) | would not be payable to the extent such deduction or withholding could be avoided or reduced if the Holder or the Beneficial Owner (or any financial institution through which the Holder or the Beneficial Owner holds the Notes or through which payment on the Notes is made) (i) makes a declaration of non-residence or other similar claim for exemption to the relevant tax authority or complies with any reasonable certification, documentation, information or other reporting requirement imposed by the relevant tax authority or (ii) enters into or complies with any applicable certification, identification, information, documentation, registration, or other reporting requirement or agreement concerning accounts maintained by the Holder or the Beneficial Owner (or such financial institution) or concerning the Holder’s or the Beneficial Owner’s (or financial institution’s) ownership or concerning the Holder’s or the Beneficial Owner’s (or such financial institution’s) nationality, residence, identity or connection with the jurisdiction imposing such tax; or |
| (d) | are payable by reason of the Holder’s or the Beneficial Owner’s having, or having had, some personal or business connection with the Tax Jurisdiction and not merely by reason of the fact that payments in respect of the Notes are, or for purposes of taxation are deemed to be, derived from sources in, or are secured in, the Tax Jurisdiction; or |
| (e) | are presented for payment more than 30 days after the Relevant Date (as defined below) except to the extent that the Holder or the Beneficial Owner would have been entitled to Additional Amounts on presenting the same for payment on the last day of the period of 30 days assuming that day to have been a Business Day; or |
| (f) | are deducted or withheld by a paying agent from a payment if the payment could have been made by another paying agent without such deduction or withholding; or |
| (g) | would not be payable if the Notes had been kept in safe custody with, and the payments had been collected by, a banking institution; or |
| (h) | are required to be deducted or withheld from a payment or deemed payment that is treated as a “dividend equivalent” payment under the Code, Treasury regulations, or other law or official guidance of the United States; or |
| (i) | are imposed or withheld by reason of the application of sections 1471 through 1474 of the Code (or any successor provisions) any regulation, ruling, assessment, or agreement thereunder, official interpretations or administrative guidance thereof or thereunder, or any law, regulation or administrative guidance implementing an intergovernmental approach thereto, whether currently in effect or as published and amended from time to time; or |
10
| (j) | are payable by reason of a change in law or practice that becomes effective more than 30 days after the relevant payment of interest becomes due, or is duly provided for and notice thereof is given in accordance with the Section 12.04 of the Indenture, whichever occurs later. |
No Additional Amounts or any other amounts shall be payable on account of any such withholding or deduction in respect of payments of principal.
“Relevant Date” means the date on which the payment first becomes due but, if the full amount payable has not been received by the paying agent on or before the due date, it means the date on which, the full amount having been so received.
The terms and conditions set forth in the following paragraphs (a) – (k) shall apply to this Note, and by acquiring this Note, the Holder and each Beneficial Owner of this Note shall be bound by and shall be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority.
| (a) | Under the relevant resolution laws and regulations as applicable to the Issuer from time to time, this Note may be subject to the powers exercised by the competent resolution authority to: |
| (i) | write down, including write down to zero, the claims for payment of the principal amount, the interest amount, if any, or any other amount in respect of this Note; |
| (ii) | convert this Note into ordinary shares of (A) the Issuer or (B) any group entity or (C) any bridge bank or other instruments of ownership of such entities qualifying as common equity tier one capital (and the issue to or conferral on the Holder (including each Beneficial Owner) of such ordinary shares or instruments); and/or |
| (iii) | apply any other resolution measure, including, but not limited to, (A) any transfer of this Note to another entity, (B) the amendment, modification or variation of the terms and conditions of this Note or (C) the cancellation of this Note; |
(each, a “Resolution Measure”).
For the avoidance of doubt, any non-payment by the Issuer arising out of any such Resolution Measure will not constitute a failure by the Issuer under the terms of this Note or the Indenture to make a payment of principal of, interest on, or other amounts owing under this Note.
11
| (b) | By its acquisition of this Note, the Holder (including each Beneficial Owner) of this Note shall be deemed irrevocably to have agreed: |
| (i) | to be bound by, to acknowledge and to accept any Resolution Measure and any amendment, modification or variation of the terms and conditions of this Note to give effect to any Resolution Measure; |
| (ii) | that it will have no claim or other right against the Issuer arising out of any Resolution Measure; and |
| (iii) | that the imposition of any Resolution Measure will not constitute a default or an event of default (A) under this Note, (B) under the Indenture or (C) for the purpose of, but only to the fullest extent permitted by, the Trust Indenture Act (including, without limitation, Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act) and applicable law. |
| (c) | The terms and conditions of this Note shall continue to apply in relation to the residual principal amount of, or outstanding amount payable in respect of, this Note, subject to any modification of the amount of interest payable, if any, to reflect the reduction of the principal amount, and any further modification of the terms that the competent resolution authority may decide in accordance with applicable laws and regulations relating to the resolution of banks, banking group companies, credit institutions and/or investment firms incorporated in the Federal Republic of Germany. |
| (d) | No repayment of any then-current principal amount of this Note or payment of interest or any other amount thereon (to the extent of the portion thereof affected by the imposition of a Resolution Measure) shall become due and payable after the imposition of any Resolution Measure by the competent resolution authority, unless such repayment or payment would be permitted to be made by the Issuer under the laws and regulations of the Federal Republic of Germany then applicable to the Issuer. |
| (e) | By its acquisition of this Note, the Holder (and each Beneficial Owner) of this Note waives, to the fullest extent permitted by the Trust Indenture Act and applicable law, any and all claims against the Trustee or the Agents for, agrees not to initiate a suit against the Trustee or the Agents in respect of, and agrees that the Trustee and the Agents shall not be liable for, any action that the Trustee or the Agents take, or abstain from taking, in either case in accordance with the imposition of a Resolution Measure by the competent resolution authority with respect to this Note. |
| (f) | Upon the imposition of a Resolution Measure by the competent resolution authority with respect to this Note, the Issuer shall provide a written notice directly to the Holder in accordance with Section 12.04 of the Indenture as soon as practicable regarding such imposition of a Resolution Measure by the competent resolution authority for purposes of notifying the Holder of such |
12
| occurrence. The Issuer shall also deliver a copy of such notice to the Trustee and the Agents for information purposes only, and the Trustee and the Agents shall be entitled to rely, and will not be liable for relying, on the competent resolution authority and the Resolution Measure identified in such notice. Any delay or failure by the Issuer to give notice shall not affect the validity or enforceability of any Resolution Measure nor the effects thereof on this Note. |
| (g) | If this Note is called or being called for redemption or repurchase by the Issuer, but the competent resolution authority has imposed a Resolution Measure with respect to this Note prior to the payment of the redemption or repurchase amount, the relevant redemption or repurchase notice, if any, shall be automatically rescinded and shall be of no force and effect, and no payment of the redemption or repurchase amount will be due and payable. |
| (h) | Upon the imposition of any Resolution Measure by the competent resolution authority, the Trustee shall not be required to take any further directions from the Holders under Section 5.09 of the Indenture, which section authorizes Holders of a majority in aggregate principal amount of the debt securities issued under the Indenture at the time Outstanding to direct certain actions relating to such debt securities, and if any such direction was previously given under Section 5.09 of the Indenture to the Trustee by the Holders, it shall automatically cease to be effective, be null and void and have no further effect. The Indenture shall impose no duties, obligations or liabilities upon the Trustee or the Agents whatsoever with respect to the imposition of any Resolution Measure by the competent resolution authority. The Trustee and the Agents shall be fully protected in acting or refraining from acting in accordance with a Resolution Measure. Notwithstanding the foregoing, if, following completion of the imposition of a Resolution Measure by the competent resolution authority, this Note remains outstanding, then the Trustee’s and each Agent’s duties under the Indenture shall remain applicable with respect to this Note following such completion to the extent that the Issuer, the Trustee and the Agents agree pursuant to a supplemental indenture, unless the Issuer, the Trustee and the Agents agree that a supplemental indenture is not necessary. |
| (i) | By the acquisition of this Note, the Holder and each Beneficial Owner of this Note shall be deemed irrevocably to have (i) consented to the imposition of any Resolution Measure as it may be imposed without any prior notice by the competent resolution authority of its decision to exercise such power with respect to this Note, (ii) authorized, directed and requested the Depositary and any direct participant in the Depositary or other intermediary through which it holds this Note to take any and all necessary action, if required, to implement the imposition of any Resolution Measure with respect to this Note as it may be imposed, without any further action or direction on the part of the Holder of this Note, the Trustee or the Agents and (iii) acknowledged and accepted that the provisions contained in Article 6 of the Indenture are exhaustive on the matters described in Article 6 of the Indenture to the exclusion of any other agreements, arrangements or understandings between it and the Issuer relating to the terms and conditions of this Note. |
13
| (j) | If the competent resolution authority imposes a Resolution Measure with respect to less than the total outstanding principal amount of the debt securities issued under the Indenture, unless the Trustee or the Agents are otherwise instructed by the Issuer or the competent resolution authority, any cancellation, write-off or conversion into equity made in respect of such debt securities pursuant to the Resolution Measure will be made on a substantially pro rata basis among any series of debt securities issued under the Indenture. |
| (k) | Any obligations of the Holders to indemnify the Trustee and the Agents under the Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or this Note. To the extent not otherwise precluded by a Resolution Measure, the Issuer’s obligations to indemnify the Trustee and the Agents in accordance with Sections 7.02 and 7.06 of the Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or this Note. |
The Indenture permits the Issuer and the Trustee, subject to the prior consent of the competent supervisory authority in respect of this Note, if required under the CRR or other applicable laws and regulations for the recognition of the Securities as Tier 2 capital, and with the consent of the Holders of not less than a majority in aggregate principal amount of the debt securities of all series issued under the Indenture then outstanding and affected (voting as one class), to execute supplemental indentures adding any provisions to or changing in any manner the rights of the Holders of each series so affected; provided that the Issuer and the Trustee may not, without the consent of the Holder of each outstanding debt security affected thereby, (a) extend the final maturity of any such debt security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof, or change the currency of payment thereof, or modify or amend the provisions for conversion of any currency into any other currency, or impair or affect the rights of any Holder to institute suit for the payment thereof, modify the provisions of the Indenture with respect to the subordination of this Note in a manner adverse to the Holder or (b) reduce the aforesaid percentage in principal amount of debt securities the consent of the Holders of which is required for any such supplemental indenture. The Issuer and the Trustee may, without the consent of the Holder of this Note, conform the terms of this Note to the description thereof in the prospectus and prospectus supplements relating to the offering and sale of this Note. No subsequent agreement shall make the principal and interest payable on any series of the Notes, payable in different coins or currencies, i.e., the relevant coin or currency must always be identical for the relevant series of the Notes.
So long as this Note shall be outstanding, the Issuer will cause to be maintained an office or agency for the payment of the principal of and premium, if any, and interest, if any, on this Note as herein provided in the United States, and an office or agency in the United States for the registration, transfer and exchange as aforesaid of this Note. The Issuer may designate other agencies for the payment of said principal, premium and interest at such place or places outside the United States (subject to applicable laws and regulations) as the Issuer may decide. So long as there shall be such an agency, the Issuer shall keep the Trustee advised of the names and locations of such agencies, if any are so designated.
14
With respect to moneys paid by the Issuer and held by the Trustee or any Paying Agent for payment of the principal of or interest or premium, if any, on any Notes that remain unclaimed at the end of two years after such principal, interest or premium shall have become due and payable (whether at maturity or upon call for redemption or otherwise), (i) the Trustee or such Paying Agent shall notify the Holders of such Notes that such moneys shall be repaid to the Issuer and any person claiming such moneys shall thereafter look only to the Issuer for payment thereof and (ii) such moneys shall be so repaid to the Issuer. Upon such repayment all liability of the Trustee or such Paying Agent with respect to such moneys shall thereupon cease, without, however, limiting in any way any obligation that the Issuer may have to pay the principal of or interest or premium, if any, on this Note as the same shall become due.
Subject to the imposition of a Resolution Measure, no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the amount of cash as determined in accordance with the provisions set forth on the face of this Note due with respect to the principal of, premium, if any, and interest, if any, on this Note at the time, place, and rate, and in the coin or currency, herein prescribed unless otherwise agreed between the Issuer and the registered Holder of this Note.
Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Holder in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if any, or the interest, if any, on this Note, for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Issuer or of any successor corporation, either directly or through the Issuer or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
This Note shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the State of New York, except with respect to the provisions relating to the subordination of the Notes set forth in the second and third paragraph of Section 2.03 of the Indenture, which 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.
As used herein:
| (a) | the term “Beneficial Owner” shall mean the beneficial owners of this Note (and any interest therein); |
| (b) | the term “bridge bank” means 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 the event of the imposition of Resolution Measures; |
15
| (c) | the term “Business Day” means, unless otherwise provided on the face of this Note, any day other than a day that (i) is a Saturday or Sunday, (ii) is a day on which banking institutions generally in the City of New York are authorized or obligated by law, regulation or executive order to close, (iii) is a day on which transactions in U.S. Dollars are not conducted in the City of New York or (iv) a day on which T2 is not operating; |
| (d) | the term “competent resolution authority” means any authority with the ability to exercise a Resolution Measure; |
| (e) | the term “CRR” means Regulation (EU) No 575/2013 of the European Parliament and the Council of June 26, 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (including any provisions of regulatory law supplementing this Regulation); to the extent that any provisions of the CRR are amended or replaced, the term CRR as used in this Note shall refer to such amended provisions or successor provisions; |
| (f) | the term “competent supervisory authority” means any authority that bears primary responsibility for the prudential supervision of the Issuer; |
| (g) | the term “group entity” shall mean an entity that is included in the corporate group subject to a Resolution Measure; |
| (h) | the term “Notices” refers to notices to the Holders of the Notes at each Holder’s address as that address appears in the register for the Notes by first class mail, postage prepaid, and to be given by publication in an authorized newspaper in the English language and of general circulation in the Borough of Manhattan, The City of New York; provided that notice may be made, at the option of the Issuer, through the customary notice provisions of the clearing system or systems through which beneficial interests in this Note are owned. Such Notices will be deemed to have been given on the date of such publication (or other transmission, as applicable), or if published in such newspapers on different dates, on the date of the first such publication; |
| (i) | the term “Own Funds Instruments” means own funds instruments of the Issuer within the meaning of the CRR; |
| (j) | the term “Priority Claims” means claims against, and obligations of, the Issuer which do not qualify as Own Funds Instruments; this includes (i) all claims of unsubordinated creditors of the Issuer (including claims against the Issuer under its unsecured and unsubordinated non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including obligations of the Issuer under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) sentence 2 of the German Banking Act) (or any successor provision thereof)), (ii) the claims specified in Section 39(1) nos. 1 to 5 of the German Insolvency Code (Insolvenzordnung) (or any successor provision thereof), (iii) contractually subordinated obligations of the Issuer within the meaning of Section 39(2) of the German Insolvency Code (or any successor provision thereof) which do not qualify as Own Funds Instruments at the time Resolution Measures are imposed on the Issuer or in the event of a dissolution, liquidation, insolvency, composition or other proceedings for the avoidance of insolvency of, or against, the Issuer, and (iv) other contractually subordinated obligations of the Issuer within the meaning of Section 46f(7a) sentences 3 and 4 of the German Banking Act (or any successor provision thereto); |
16
| (k) | the term “T2” means the real time gross settlement system operated by the Eurosystem, or any successor system; and |
| (l) | the term “United States” means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction. |
All other terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
17
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
| TEN COM |
– | as tenants in common | ||
| TEN ENT |
– | as tenants by the entireties | ||
| JT TEN |
– | as joint tenants with right of survivorship and not as tenants in common |
UNIF GIFT MIN ACT – Custodian
| (Minor) |
(Cust) |
Under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
18
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and appointing such person attorney to transfer such Note on the books of the Issuer, with full power of substitution in the premises.
Dated:
| NOTICE: | The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever. |
19
Exhibit 4.8(b)
DEUTSCHE BANK AG
[INSERT BRANCH OFFICE THROUGH WHICH THE NOTE IS ISSUED, IF APPLICABLE]
[FORM OF FACE OF DEBT SECURITY]
| FLOATING RATE REGISTERED SUBORDINATED TIER 2 NOTE | ||
| REGISTERED | U.S. $[AGGREGATE PRINCIPAL AMOUNT] | |
| CERTIFICATE No. | CUSIP: | |
| ISIN: | ||
Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
SUBORDINATED TIER 2 NOTES
Floating Rate Registered Subordinated Tier 2 Note
| Trade Date | [ ] | |
| Original Issue Date | [ ] | |
| Maturity Date | [ ] | |
| Principal Amount | [ ] | |
| Aggregate Principal Amount | [ ] | |
| Minimum Denominations | [ ] | |
| Interest Accrual Date | [ ] | |
| Base Rate | [ ] | |
| Day Count Convention | [ ] | |
| Index Maturity | [ ] | |
| Spread (plus or minus) | [ ] | |
| Spread Multiplier | [ ] | |
| Initial Interest Rate | [ ] | |
| Initial Interest Reset Date | [ ] | |
| Interest Payment Date(s) | [ ] | |
| Interest Payment Period | [ ] | |
| Interest Reset Date(s) | [ ] | |
| Resolution Measures Provisions | This Note will be subject to the Resolution Measures provisions provided in the Indenture and on the reverse hereof | |
| Office Substitution | [Applicable] | |
| Calculation Agent | [ ] | |
| Initial Redemption Date | [ ] | |
| Initial Redemption Percentage | [ ] | |
| Annual Redemption Percentage Reduction | [ ] | |
| Redemption Notice Period | [ ] | |
| Tax Redemption | [ ] | |
| Redemption for Regulatory Reasons | [ ] | |
| Payment of Additional Amounts | [ ] | |
| If yes, state Initial Offering Date | [ ] | |
| Other Provisions | [ ] | |
2
Deutsche Bank Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany, if so specified, acting through the office specified on the front page of this Note, (together with its successors and assigns, the “Issuer”), for value received, hereby promises to pay to Cede & Co., or registered assignees, the amount of cash due with respect to the principal sum specified above on the Maturity Date specified above (except to the extent previously redeemed) and to pay interest thereon at a rate per annum determined in accordance with the provisions specified on the reverse hereof until the principal hereof is paid or duly made available for payment.
The Issuer will pay interest in arrears weekly, monthly, quarterly, semi-annually or annually as specified above as the Interest Payment Period on each Interest Payment Date (as specified above), commencing on the first Interest Payment Date next succeeding the Interest Accrual Date specified above, and on the Maturity Date (or on any redemption date); provided, however, that if the Interest Accrual Date occurs between a Record Date, as defined below, and the next succeeding Interest Payment Date, interest payments will commence on the second Interest Payment Date succeeding the Interest Accrual Date to the registered Holder of this Note on the Record Date with respect to such second Interest Payment Date; and provided, further, that if an Interest Payment Date (other than the Maturity Date or a redemption date) would fall on a day that is not a Business Day, as defined on the reverse hereof, such Interest Payment Date shall be the following day that is a Business Day, except that if the Base Rate specified above is EURIBOR or Compounded SOFR and such next Business Day falls in the next calendar month, such Interest Payment Date shall be the immediately preceding day that is a Business Day; and provided, further, that if the Maturity Date or redemption date would fall on a day that is not a Business Day, such payment shall be made on the following day that is a Business Day and no interest shall accrue for the period from and after such Maturity Date or redemption date; and provided, further, that if an Interest Payment Date or the Maturity Date or redemption date would fall on a day that is not a Business Day, payment of interest, premium, if any, or principal otherwise payable on such date need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the scheduled Interest Payment Date or on the scheduled Maturity Date or redemption date.
Interest on this Note will accrue from, and including, the most recent Interest Payment Date to which interest has been paid or duly provided for, or, if no interest has been paid or duly provided for, from and including, the Interest Accrual Date, to, but excluding the next Interest Payment Date or the date the amount due with respect to the principal hereof has been
3
paid or duly made available for payment (except as provided below) (each such period, an “Interest Period”). The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, subject to certain exceptions described herein, be paid to the person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the date that is one New York Banking Day immediately preceding the relevant date of payment with respect to such Interest Payment Date (each such date, a “Record Date”); provided, however, that any interest payable at maturity (or on any redemption date) will be payable to the person to whom the amount due with respect to the principal hereof shall be payable.
Payment of the amount due with respect to the principal, premium, if any, and any interest due on this Note will be made by wire transfer of immediately available funds at the office or agency of the Paying Agent (as defined on the reverse hereof), maintained for that purpose in the Borough of Manhattan, The City of New York, or at such other paying agency as the Issuer may determine, in U.S. Dollars.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, acting on behalf of the Trustee, referred to on the reverse hereof by manual or electronic signature (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com), this Note shall not be entitled to any benefit under the Indenture (as defined on the reverse hereof) or be valid or obligatory for any purpose.
4
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
| DATED: [ ] | DEUTSCHE BANK AG [INSERT BRANCH OFFICE THROUGH WHICH THE NOTE IS ISSUED, IF APPLICABLE] | |||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| CERTIFICATE OF AUTHENTICATION
This Note is one of the Securities referred to in the within-mentioned Subordinated Indenture.
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Authenticating Agent | ||
| By: | ||
| Authorized Officer | ||
5
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Subordinated Tier 2 Notes of the Issuer (the “Notes”). The Notes are issuable under an Amended and Restated Subordinated Indenture, dated as of August 3, 2021, among the Issuer, Wilmington Trust, National Association, as trustee (the “Trustee,” which term includes any successor trustee under the Indenture), and Deutsche Bank Trust Company Americas (“DBTCA”), as paying agent, transfer agent, registrar and authenticating agent, as amended and supplemented by the First Supplemental Subordinated Indenture dated as of April 26, 2024 (as amended or supplemented from time to time, the “Indenture”), to which Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities of the Issuer, the Trustee and Holders of the Notes and the terms upon which the Notes are, and are to be, authenticated and delivered. The Issuer has appointed DBTCA acting through its principal corporate trust office in the Borough of Manhattan, The City of New York, as its paying agent (the “Paying Agent,” which term includes any additional or successor Paying Agent appointed by the Issuer) with respect to the Notes. The Issuer has appointed DBTCA as the authenticating agent (the “Authenticating Agent,” which term includes any additional or successor Authenticating Agent appointed by the Issuer) to act on behalf of the Trustee to authenticate the Notes. The terms of individual Notes may vary with respect to interest rates, interest rate formulas, issue dates, maturity dates, or otherwise, all as provided in the Indenture. To the extent not inconsistent herewith, the terms of the Indenture are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund. Unless otherwise indicated on the face hereof, this Note will not be redeemable prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole or in part at the option of the Issuer on or after the Initial Redemption Date specified on the face hereof or on the Redemption Dates specified on the face hereof on the terms set forth on the face hereof, together with interest accrued and unpaid hereon to the date of redemption. Any redemption of this Note prior to its stated maturity shall be at the option of the Issuer only and subject to (i) receipt by the Issuer of prior written approval of the competent supervisory authority, and no redemption shall occur before the fifth anniversary of the respective issuance date, except where the conditions set out in Article 78(4) of the CRR are met; (ii) compliance with any other regulatory requirements; and (iii) the requirements set forth in Section 2.03 of the Indenture.
If this Note is subject to “Annual Redemption Percentage Reduction,” the Initial Redemption Percentage indicated on the face hereof will be reduced on each anniversary of the Initial Redemption Date by the Annual Redemption Percentage Reduction specified on the face hereof until the redemption price of this Note is 100% of the principal amount hereof, together with interest accrued and unpaid hereon to the date of redemption. Notice of redemption shall be mailed to the registered Holders of the Notes designated for redemption at their addresses as the same shall appear on the Note register not less than 30 calendar days nor more than 60 calendar days prior to the date fixed for redemption or within the Redemption Notice Period specified on the face hereof, subject to all the conditions and provisions of the Indenture. In the event of redemption of this Note in part only, a new Note or Notes for the amount of the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
6
This Note will bear interest at the rate determined in accordance with the applicable provisions below by reference to the Base Rate shown on the face hereof based on the Index Maturity, if any, shown on the face hereof (i) plus or minus the Spread, if any, and/or (ii) multiplied by the Spread Multiplier, if any, specified on the face hereof.
How Certain Floating Interest Rates Are Reset. The terms and provisions set forth in this section “How Certain Floating Interest Rates Are Reset” will apply to this Note if the specified Base Rate is EURIBOR or any other Base Rate specified on the face hereof other than Compounded SOFR.
Commencing with the Initial Interest Reset Date specified on the face hereof, the rate at which interest on this Note is payable shall be reset as of each Interest Reset Date specified on the face hereof (as used herein, the term “Interest Reset Date” shall include the Initial Interest Reset Date). The determination of the rate of interest at which this Note will be reset on any Interest Reset Date shall be made on the Interest Determination Date (as defined below) pertaining to such Interest Reset Dates; provided, however, that the interest rate in effect for the period from the Interest Accrual Date to the Initial Interest Reset Date will be the Initial Interest Rate. If any Interest Reset Date would otherwise be a day that is not a Business Day, such Interest Reset Date shall be postponed to the next succeeding day that is a Business Day, except that if the Base Rate specified on the face hereof is EURIBOR and such Business Day is in the next succeeding calendar month, such Interest Reset Date shall be the immediately preceding Business Day.
The Interest Determination Date pertaining to an Interest Reset Date for Notes bearing interest calculated by reference to EURIBOR shall be the second TARGET Settlement Day prior to such Interest Reset Date. The Interest Determination Date pertaining to an Interest Reset Date for Notes bearing interest calculated by reference to two or more Base Rates will be the latest Business Day that is at least two Business Days before the Interest Reset Date for the applicable Note on which each Base Rate is determinable.
Unless otherwise specified on the face hereof, the “Calculation Date” pertaining to an Interest Determination Date will be the earlier of (i) the tenth calendar day after such Interest Determination Date or, if such day is not a Business Day, the next succeeding Business Day, or (ii) the Business Day immediately preceding the applicable Interest Payment Date or Maturity Date (or, with respect to any principal amount to be redeemed, any redemption date), as the case may be. The Calculation Agent shall calculate the interest rate hereon in accordance with the foregoing on or before each Calculation Date.
How Interest Is Calculated.
If the Base Rate specified on the face hereof is EURIBOR, upon the request of the Holder of this Note, the Calculation Agent will provide the interest rate then in effect and, if determined, the interest rate that will become effective on the next Interest Reset Date for this Note. Upon the request of the Holder of this Note if the Base Rate specified on the face hereof is Compounded SOFR, the Calculation Agent will provide Compounded SOFR, the interest rate and the amount of interest accrued with respect to any Interest Period for this Note, after Compounded SOFR and such interest rate and accrued interest have been determined.
7
The amount of accrued interest on a Note for an Interest Period is calculated by multiplying the principal amount of this Note by an accrued interest factor. This accrued interest factor will be determined by multiplying the per annum floating interest rate determined by reference to the applicable Base Rate, as determined for the applicable Interest Period, by a factor resulting from the Day Count Convention that applies with respect to such determination. The factor resulting from the Day Count Convention will be, if so specified on the face hereof, one of the following, or may be any other convention specified on the face hereof:
| • | a factor based on a 360-day year of twelve 30-day months if the Day Count Convention specified on the face hereof is “30/360”; |
| • | a factor equal to the actual number of days in the relevant period divided by 360 if the Day Count Convention specified on the face hereof is “Actual/360”; |
| • | a factor equal to the actual number of days in the relevant period divided by 365, or if any portion of that relevant period falls in a leap year, the sum of (A) the actual number of days in that portion of the relevant period falling in a leap year divided by 366 and (B) the actual number of days in that portion of the relevant period falling in a non-leap year divided by 365, if the Day Count Convention specified on the face hereof is “Actual/Actual”; or |
| • | a factor equal to the actual number of days in the relevant period divided by 365, if the Day Count Convention specified on the face hereof is “Actual/365 (Fixed).” |
If no Day Count Convention is specified on the face hereof, the factor for a note for which the Base Rate specified on the face hereof is EURIBOR or Compounded SOFR will be equal to the actual number of days in the relevant period divided by 360.
All calculations with respect to the amount of interest payable on the Notes will be rounded to the nearest one hundred-thousandth, with five one-millionths rounded upward (e.g., 0.876545 would be rounded to 0.87655); all U.S. dollar amounts related to determination of the payment per principal amount of Notes at maturity will be rounded to the nearest ten-thousandth, with five one hundred-thousandths rounded upward (e.g., 0.76545 would be rounded up to 0.7655); and all U.S. dollar amounts paid on the aggregate principal amount of Notes per Holder or Beneficial Owner will be rounded to the nearest cent, with one-half cent rounded upward.
The interest rate on this Note will in no event be less than 0% per annum or higher than the maximum rate permitted by New York law, as such maximum rate may be modified by United States Federal law of general application.
8
Determination of EURIBOR. If the Base Rate specified on the face hereof is “EURIBOR,” for any Interest Determination Date, EURIBOR with respect to this Note shall be the rate for interbank term deposits in euro, as sponsored, calculated and published jointly by the European Money Markets Institute, having the Index Maturity specified on the face hereof, as such rate appears on Reuters page EURIBOR01 (or any other page as may replace Reuters page EURIBOR01) (“Reuters Page EURIBOR01”) as of 11:00 A.M., Brussels Time, on such Interest Determination Date.
The following procedures shall be followed if EURIBOR cannot be determined as described above:
| (a) | If the Calculation Agent determines that EURIBOR with the Index Maturity specified on the face hereof has been discontinued or ceases to be calculated or published, the Calculation Agent will, in its sole discretion, select an alternative reference rate as a substitute interest rate for the Notes; provided that if the Calculation Agent determines that there is an industry accepted successor interest rate for the discontinued EURIBOR, the Calculation Agent shall use such successor interest rate as the substitute interest rate for the Notes. As part of any such substitution, the Calculation Agent may make adjustments to the terms of the Notes, including, but not limited to, the definition of the Base Rate (including the related fallback mechanism), the applicable currency and/or Index Maturity for such alternative reference rate, the Spread or Spread Multiplier, as well as the business day convention, the definition of Business Day, Interest Determination Dates and related provisions and definitions, in each case consistent with accepted market practice for the use of such alternative reference rate for debt obligations such as the Notes. |
| (b) | If the Calculation Agent has not selected an alternative reference rate as a substitute interest rate for the Notes as provided above, the following will apply: |
| (i) | If the rate described in the second paragraph of this subsection does not appear on Reuters Page EURIBOR01 (or any other page as may replace Reuters page EURIBOR01) or is not so published by 11:00 A.M., Brussels Time, on the applicable Interest Determination Date, EURIBOR for such Interest Determination Date will be the rate calculated by the Calculation Agent as the arithmetic mean of at least two quotations obtained by the Calculation Agent after requesting the principal Euro-zone offices of four major banks in the Euro-zone interbank market, which may include the Issuer, as selected by the Calculation Agent, to provide the Calculation Agent with its offered quotation for interbank term deposits in euro for the Index Maturity designated on the face hereof, commencing on the applicable Interest Reset Date, to prime banks in the Euro-zone interbank market at approximately 11:00 A.M., Brussels Time, on the applicable Interest Determination Date and in a principal amount not less than the equivalent of U.S.$1,000,000 in euro that is representative for a single transaction in euro in such market at such time. |
9
| (ii) | If fewer than two quotations are so provided, EURIBOR for such Interest Determination Date shall be calculated by the Calculation Agent and shall be the arithmetic mean of the rates quoted at approximately 11:00 A.M., Brussels Time, on such Interest Determination Date by four major banks in the Euro-zone interbank market, as selected by the Calculation Agent, for loans in euro to leading European banks, having the Index Maturity designated on the face hereof commencing on the applicable Interest Reset Date in a principal amount not less than the equivalent of U.S.$1,000,000 in euro that is representative for a single transaction in euro in such market at such time. |
| (iii) | If the banks so selected by the Calculation Agent are not providing quotations as set forth above, then the Calculation Agent, after consulting such sources as it deems comparable to any of the foregoing quotations or display page, or any such source as it deems reasonable from which to estimate EURIBOR with the relevant Index Maturity, will determine EURIBOR for that Interest Determination Date in its sole discretion. |
Determination of Compounded SOFR. If the Base Rate specified on the face hereof is “Compounded SOFR,” then the terms and provisions of this section “Determination of Compounded SOFR” will apply.
The Calculation Agent will determine Compounded SOFR, the interest rate and accrued interest for each Interest Period in arrears as soon as reasonably practicable on or after the last day of the applicable Observation Period, and in any event on or prior to the Business Day immediately preceding the relevant Interest Payment Date, and will notify the Issuer of Compounded SOFR and such interest rate and accrued interest for each Interest Period as soon as reasonably practicable after such determination, but in any event by the Business Day immediately prior to the Interest Payment Date.
Unless otherwise specified on the face hereof, the “Observation Period” in respect of each Interest Period for a Note will be the period from, and including, the date that is two U.S. Government Securities Business Days preceding the first date in such Interest Period to, but excluding, the date that is two U.S. Government Securities Business Days preceding the Interest Payment Date for such Interest Period.
“Compounded SOFR” means, with respect to any applicable Interest Period, the rate of return of a daily compounded interest investment over the Observation Period corresponding to that Interest Period, calculated as follows:
“d0”, for any Observation Period, is the number of U.S. Government Securities Business Days in the relevant Observation Period.
“i” is a series of whole numbers from one to d0, each representing the relevant U.S. Government Securities Business Days in chronological order from, and including, the first U.S. Government Securities Business Day in the relevant Observation Period.
10
“SOFRi”, for any U.S. Government Securities Business Day “i” in the relevant Observation Period, is a reference rate equal to SOFR in respect of that day.
“ni” for any U.S. Government Securities Business Day “i” is the number of calendar days from, and including, such U.S. Government Securities Business Day “i” to, but excluding, the following U.S. Government Securities Business Day “i+1”.
“d” is the number of calendar days in the relevant Observation Period.
For these calculations, the daily SOFR in effect on any U.S. Government Securities Business Day will be the applicable SOFR as reset on that date.
For purposes of determining Compounded SOFR, “SOFR” means, with respect to any U.S. Government Securities Business Day:
| (1) | the Secured Overnight Financing Rate in respect of such U.S. Government Securities Business Day as published by the New York Federal Reserve, as the administrator of such rate (or a successor administrator), on the New York Federal Reserve’s Website on or about 5:00 p.m. (New York City time) on the immediately following U.S. Government Securities Business Day; or |
| (2) | if the Secured Overnight Financing Rate in respect of such U.S. Government Securities Business Day does not appear as specified in paragraph (1), unless both a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the Secured Overnight Financing Rate in respect of the last U.S. Government Securities Business Day for which such rate was published on the New York Federal Reserve’s Website; or |
| (3) | if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred: |
| • | the sum of: (a) the alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark and (b) the Benchmark Replacement Adjustment; or |
| • | the sum of: (a) the ISDA Fallback Rate and (b) the Benchmark Replacement Adjustment; or |
| • | the sum of: (a) the alternate rate of interest that has been selected by the Issuer or its designee as the replacement for the then-current Benchmark giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar-denominated floating rate notes at such time and (b) the Benchmark Replacement Adjustment. |
“Benchmark” means the Compounded SOFR as defined above; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the Compounded SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement.
11
“Benchmark Replacement” means the first alternative set forth in the order presented in clause (3) of the definition of “SOFR” that can be determined by the Issuer or its designee as of the Benchmark Replacement Date. In connection with the implementation of a Benchmark Replacement, the Issuer or its designee will have the right to make Benchmark Replacement Conforming Changes from time to time.
“Benchmark Replacement Adjustment” means the first alternative set forth in the order below that can be determined by the Issuer or its designee as of the Benchmark Replacement Date:
| (1) | the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement; |
| (2) | if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, then the ISDA Fallback Adjustment; |
| (3) | the spread adjustment (which may be a positive or negative value or zero) that has been selected by the Issuer or its designee giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated floating rate notes at such time. |
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definitions of “Interest Period” and “Observation Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that the Issuer or its designee decides may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if the Issuer or its designee decides that adoption of any portion of such market practice is not administratively feasible or if the Issuer or its designee determines that no market practice for use of the Benchmark Replacement exists, in such other manner as the Issuer or its designee determines is reasonably necessary).
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
| (1) | in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark; or |
| (2) | in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein. |
12
For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
| (1) | a public statement or publication of information by or on behalf of the administrator of the Benchmark announcing that such administrator has ceased or will cease to provide the Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark; |
| (2) | a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark, the central bank for the currency of the Benchmark, an insolvency official with jurisdiction over the administrator for the Benchmark, a resolution authority with jurisdiction over the administrator for the Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark, which states that the administrator of the Benchmark has ceased or will cease to provide the Benchmark permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark; or |
| (3) | a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative. |
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
“ISDA Fallback Adjustment” means the spread adjustment (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark.
“ISDA Fallback Rate” means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an index cessation date with respect to the Benchmark excluding the applicable ISDA Fallback Adjustment.
“New York Federal Reserve” means the Federal Reserve Bank of New York.
“New York Federal Reserve’s Website” means the website of the New York Federal Reserve, currently at http://www.newyorkfed.org, or any successor source.
13
“Reference Time” with respect to any determination of the Benchmark means the time determined by the Issuer or its designee in accordance with the Benchmark Replacement Conforming Changes.
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
“U.S. Government Securities Business Day” means any day except for a Saturday, Sunday or a day on which the Securities Industry and Financial Markets Association (or any successor thereto) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S. government securities.
“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
If a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, any determination, decision or election that may be made by the Issuer or its designee pursuant to this section “Compounded SOFR,” including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection:
| • | will be conclusive and binding absent manifest error; |
| • | will be made in the Issuer’s or its designee’s sole discretion; and |
| • | notwithstanding anything to the contrary in the documentation relating to the Notes, shall become effective without consent from the holders of the Notes or any other party. |
14
The Notes are intended to qualify as Own Funds Instruments of the Issuer in the form of Tier 2 instruments (Instrumente des Ergänzungskapitals) within the meaning of Article 63 of the CRR (“Tier 2 Instruments”).
The obligations under the Notes shall constitute unsecured and subordinated obligations of the Issuer, ranking pari passu among themselves and, pari passu with all other equally subordinated obligations of the Issuer from time to time constituting Own Funds Instruments in the form of Tier 2 Instruments. In the event of Resolution Measures being imposed on the Issuer or in the event of the dissolution, liquidation, insolvency (Insolvenzverfahren), composition or other proceedings for the avoidance of insolvency of, or against, the Issuer, the obligations under the Securities shall be fully subordinated to all Priority Claims. In any such event, no amounts shall be payable in respect of the Notes until all Priority Claims have been satisfied in full. If the Securities are deemed not to have qualified as Tier 2 Instruments or other Own Funds Instruments or at any time cease to so qualify, the obligations under the Securities will rank, pursuant to Section 46f(7a) sentence 3 of the German Banking Act (Kreditwesengesetz), senior to all obligations under Own Funds Instruments.
The Notes may be issued in one or more series and each such series shall rank equally and pari passu with all other unsecured and equally subordinated debt (it being understood that no Priority Claims constitute such equally subordinated obligations) of the Issuer, except as otherwise provided by applicable law or the terms of any other indebtedness, and in particular, if such debt is expressed to rank junior to the Notes, then the Notes shall rank senior to such junior debt, but junior to the Priority Claims, except as otherwise provided by applicable law.
Notwithstanding anything to the contrary set forth herein, but to the extent not otherwise precluded by a Resolution Measure or the application of mandatory aspects of insolvency law, the prior claims against the Issuer under Section 7.06 of the Indenture shall not be subordinated to the Priority Claims and shall survive the imposition of a Resolution Measure by the competent resolution authority in the priority set forth in Section 5.03 of the Indenture.
No subsequent agreement shall (i) limit, or shall have the effect of limiting, the subordination of the Notes as provided for herein; (ii) amend any provision establishing the maturity date or any date on which a redemption option, if any, may be exercised with respect to the Notes to provide for an earlier date; or (iii) shorten any applicable notice period.
No Holder may set off or net its claims arising under the Notes against any claims of the Issuer. No collateral or guarantee shall be provided at any time to secure the claims of the Holders under the Notes; any collateral or guarantee already provided or granted in the future in connection with other liabilities of the Issuer may not be used for claims under the Notes.
If the Notes are redeemed or repurchased otherwise than in accordance with the terms of the Notes, then the amounts paid must be returned to the Issuer irrespective of any agreement to the contrary.
This Note, and any Note or Notes issued upon transfer or exchange hereof, is issuable only in fully registered form, without coupons, and unless otherwise specified above, is issuable only in denominations of U.S. $1,000 and any integral multiple of U.S. $1,000 in excess thereof.
15
If “Office Substitution” is applicable to the Notes as specified on the face hereof, the Issuer may at any time, without the consent of the Holders or the Trustee, designate another Office of the Issuer as substitute for the Office through which the Issuer has acted to issue the Notes with the same effect as if such substitute Office had been originally named as the Office through which the Issuer had acted to issue the Notes for all purposes under the Indenture and the Notes. In order to give effect to such substitution, the Issuer shall give notice of such substitution to the Trustee and the Holders of the Notes. With effect from the substitution date, such substitute Office shall, without any amendment to this Note or entry into any supplemental indenture, assume all of the obligations of the originally-named Office as principal obligor under the Notes. “Office” means the Issuer’s head office or one of the Issuer’s branch offices.
DBTCA has been appointed Registrar for the Notes, and DBTCA will maintain at its office in The City of New York, a register for the registration and transfer of Notes. This Note may be transferred at either the aforesaid New York office of DBTCA by surrendering this Note for cancellation, accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Trustee and the Authenticating Agent and duly executed by the registered Holder hereof in person or by the Holder’s attorney duly authorized in writing, and thereupon the Trustee or the Authenticating Agent shall authenticate and deliver in the name of the transferee or transferees, in exchange herefor, a new Note or Notes having identical terms and provisions and having a like aggregate principal amount in authorized denominations, subject to the terms and conditions set forth herein; provided, however, that neither the Trustee nor the Authenticating Agent will be required to (i) register the transfer of or exchange any Note that has been called for redemption in whole or in part, except the unredeemed portion of Notes being redeemed in part or (ii) register the transfer of or exchange Notes to the extent and during the period so provided in the Indenture with respect to the redemption of Notes. Notes are exchangeable at said offices for other Notes of other authorized denominations of equal aggregate principal amount having identical terms and provisions. All such registrations, exchanges and transfers of Notes will be free of service charge, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge in connection therewith. All Notes surrendered for exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Trustee and the Authenticating Agent and executed by the registered Holder in person or by the Holder’s attorney duly authorized in writing. The date of registration of any Note delivered upon any exchange or transfer of Notes shall be such that no gain or loss of interest results from such exchange or transfer.
In case this Note shall at any time become mutilated, defaced or be destroyed, lost or stolen and this Note or evidence of the loss, theft or destruction thereof (together with the indemnity hereinafter referred to and such other documents or proof as may be required in the premises) shall be delivered to the Trustee and the Authenticating Agent, the Issuer in its discretion may execute a new Note of like tenor in exchange for this Note, but, in the case of any destroyed or lost or stolen Note, only upon receipt of evidence satisfactory to the Trustee, the Authenticating Agent and the Issuer that this Note was destroyed or lost or stolen and, if required, upon receipt also of indemnity satisfactory to each of them. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the owner of the Note mutilated, defaced, destroyed, lost or stolen.
16
There are no defaults or events of default with respect to the Notes, there is no right of acceleration in the case of any non-payment of principal of, interest on or other amounts owing under the Notes or a failure by the Issuer to perform any other covenant under the Notes or under this Indenture, and under no circumstances may the Holders or the Trustee declare the principal amount of the Notes and interest accrued thereon to be due and payable. If the Issuer becomes subject to German insolvency proceedings, neither the Trustee (on behalf of the Holders for amounts due to them) nor any Holder will have any right to file a claim against the Issuer unless the competent insolvency court allows the filing of subordinated claims that rank on parity with the claims in respect of the Notes.
If the Issuer fails to make any payment of principal of, interest on, or other amounts owing under the Notes at such time as such payment is required to be made pursuant to the terms of the Notes (any such failure, a “Non-Payment Event”) and such Non-Payment Event is continuing, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to pursue any available remedy by proceedings at law or in equity to collect any principal of and interest on this Note due and unpaid, or to enforce the performance of any provision of this Note or the Indenture, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon this Note and collect in the manner provided by law out of the property of the Issuer or other obligor upon this Note, wherever situated, the monies adjudged or decreed to be payable.
If the face hereof indicates that this Note is subject to “Redemption for Regulatory Reasons,” then subject to the prior consent of the Issuer’s competent supervisory authority, the Issuer may redeem any series of the Notes, in whole but not in part, solely at the option of the Issuer at any time prior to the Maturity Date, at 100% of their then outstanding Principal Amount (subject to the imposition of any Resolution Measure) together with any accrued and unpaid interest to (but excluding) the date set for redemption if there is a change in the regulatory classification of the Notes that would be likely to result in (i) its exclusion in full or in part from the Issuer’s own funds under the CRR or any successor legislation, other than for reasons of an amortization in accordance with Article 64(2) of the CRR or as a consequence of a write down or conversion, as the case may be, or (ii) their reclassification as a lower quality of the Issuer’s own funds than as of the Original Issue Date, provided that the conditions in Article 78(4)(a) of the CRR are met, pursuant to which the Issuer’s competent supervisory authority may permit any such redemption only if it considers the change in the regulatory classification to be sufficiently certain and is satisfied that the regulatory reclassification of the Notes was not reasonably foreseeable at the Original Issue Date. Notice of such redemption will be given to the Holders of the Notes upon not less than 30 calendar days and not more than 60 calendar days prior to the date fixed of redemption to the address of each Holder as that address appears upon the books maintained by the paying agent. Any such notice will be given in accordance with Section 13.02 of the Indenture only after the Issuer’s having received the consent of its competent supervisory authority. Subject to the imposition of any Resolution Measures, such notice will be irrevocable and shall state the date set for redemption and set forth a statement in summary form of the facts constituting the basis for the right to redeem.
If the face hereof indicates that this Note is subject to “Tax Redemption,” subject to the prior consent of the competent supervisory authority, the Issuer may redeem any series of the Notes, in whole but not in part, solely at the option of the Issuer at any time prior to maturity, upon the giving of a Notice of redemption as described below, at 100% of the then outstanding principal amount hereof (subject to the imposition of any Resolution Measure) together with any accrued and unpaid interest to (but excluding) the date set for redemption if, as a result of any
17
change in, or amendment to, the laws or regulations prevailing in the Tax Jurisdiction (as defined below), which becomes effective on or after the Original Issue Date, or as a result of any application or official interpretation of such laws or regulations not generally known before the Original Issue Date, Withholding Taxes are or there is a substantial probability that they will be leviable on payments of interest in respect of this Note, and the Issuer would be obligated to pay Additional Amounts (as defined below), with respect to such Withholding Taxes, as described below, provided that the conditions in Article 78(4)(b) of the CRR are met, pursuant to which the Issuer’s competent supervisory authority may permit any such redemption only if it is satisfied that the change in the applicable tax treatment is material and was not reasonably foreseeable at the Original Issue Date. The Issuer may exercise such redemption right on giving not less than 30 days’ notice to the holder of this Note. No such notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Issuer would be obligated to withhold or pay Withholding Taxes in respect of payments of interest, were a payment in respect of this Note then made.
All interest amounts payable in respect of this Note shall be made without deduction or withholding for or on account of any present or future taxes, duties or governmental charges of any nature whatsoever imposed or levied by way of deduction or withholding by or on behalf of the Tax Jurisdiction (“Withholding Taxes”), unless such deduction or withholding is required by law.
“Tax Jurisdiction” means the Federal Republic of Germany, the United States or the jurisdiction of residence or incorporation of any successor corporation to the Issuer and the jurisdiction of any relevant issuing branch or any political subdivision or any taxing authority thereof or therein.
In the event of such withholding or deduction on payments of interest (but not in respect of the payment of any principal in respect of this Note) and if (but only if) the face hereof indicates that this Note is subject to “Payment of Additional Amounts,” the Issuer shall, to the fullest extent permitted by law, pay such additional amounts (“Additional Amounts”) as will be necessary in order that the net amounts received by the Holders, after such withholding or deduction for or on account of any Withholding Taxes imposed upon or as a result of such payment by the Tax Jurisdiction, will equal the respective amounts which would otherwise have been receivable in the absence of such withholding or deduction; except that no such Additional Amounts shall be payable on account of any taxes, duties or governmental charges which:
| (a) | are payable by any person acting as custodian bank or collecting agent on the Holder’s or the Beneficial Owner’s behalf, or otherwise in any manner which does not constitute a deduction or withholding by the Issuer from payments of interest made by the Issuer; or |
| (b) | in the case of U.S. federal income taxes, are imposed on interest received by or on behalf of (1) a 10-percent shareholder (as defined in Section 871(h)(3)(B) of the U.S. Internal Revenue Code of 1986 (the “Code”) and the regulations that may be promulgated thereunder) of the Issuer, (2) a controlled foreign corporation that is related to the Issuer within the meaning of Section 864(d)(4) of the Code, or (3) a bank receiving interest described in Section 881(c)(3)(A) of the Code, to the extent such tax, assessment or other governmental charge would not have been imposed but for the Holder’s or Beneficial Owner’s status as described in clauses (1) through (3) of this paragraph; or |
18
| (c) | would not be payable to the extent such deduction or withholding could be avoided or reduced if the Holder or the Beneficial Owner (or any financial institution through which the Holder or the Beneficial Owner holds the Notes or through which payment on the Notes is made) (i) makes a declaration of non-residence or other similar claim for exemption to the relevant tax authority or complies with any reasonable certification, documentation, information or other reporting requirement imposed by the relevant tax authority or (ii) enters into or complies with any applicable certification, identification, information, documentation, registration, or other reporting requirement or agreement concerning accounts maintained by the Holder or the Beneficial Owner (or such financial institution) or concerning the Holder’s or the Beneficial Owner’s (or financial institution’s) ownership or concerning the Holder’s or the Beneficial Owner’s (or such financial institution’s) nationality, residence, identity or connection with the jurisdiction imposing such tax; or |
| (d) | are payable by reason of the Holder’s or the Beneficial Owner’s having, or having had, some personal or business connection with the Tax Jurisdiction and not merely by reason of the fact that payments in respect of the Notes are, or for purposes of taxation are deemed to be, derived from sources in, or are secured in, the Tax Jurisdiction; or |
| (e) | are presented for payment more than 30 days after the Relevant Date (as defined below) except to the extent that the Holder or the Beneficial Owner would have been entitled to Additional Amounts on presenting the same for payment on the last day of the period of 30 days assuming that day to have been a Business Day; or |
| (f) | are deducted or withheld by a paying agent from a payment if the payment could have been made by another paying agent without such deduction or withholding; or |
| (g) | would not be payable if the Notes had been kept in safe custody with, and the payments had been collected by, a banking institution; or |
| (h) | are required to be deducted or withheld from a payment or deemed payment that is treated as a “dividend equivalent” payment under the Code, Treasury regulations, or other law or official guidance of the United States; or |
| (i) | are imposed or withheld by reason of the application of sections 1471 through 1474 of the Code (or any successor provisions) any regulation, ruling, assessment, or agreement thereunder, official interpretations or administrative guidance thereof or thereunder, or any law, regulation or administrative guidance implementing an intergovernmental approach thereto, whether currently in effect or as published and amended from time to time; or |
| (j) | are payable by reason of a change in law or practice that becomes effective more than 30 days after the relevant payment of interest becomes due, or is duly provided for and notice thereof is given in accordance with the Section 12.04 of the Indenture, whichever occurs later. |
No Additional Amounts or any other amounts shall be payable on account of any such withholding or deduction in respect of payments of principal.
19
“Relevant Date” means the date on which the payment first becomes due but, if the full amount payable has not been received by the paying agent on or before the due date, it means the date on which, the full amount having been so received.
The terms and conditions set forth in the following paragraphs (a) – (k) shall apply to this Note, and by acquiring this Note, the Holder and each Beneficial Owner of this Note shall be bound by and shall be deemed to consent to the imposition of any Resolution Measure by the competent resolution authority.
| (a) | Under the relevant resolution laws and regulations as applicable to the Issuer from time to time, this Note may be subject to the powers exercised by the competent resolution authority to: |
| (i) | write down, including write down to zero, the claims for payment of the principal amount, the interest amount, if any, or any other amount in respect of this Note; |
| (ii) | convert this Note into ordinary shares of (A) the Issuer or (B) any group entity or (C) any bridge bank or other instruments of ownership of such entities qualifying as common equity tier one capital (and the issue to or conferral on the Holder (including each Beneficial Owner) of such ordinary shares or instruments); and/or |
| (iii) | apply any other resolution measure, including, but not limited to, (A) any transfer of this Note to another entity, (B) the amendment, modification or variation of the terms and conditions of this Note or (C) the cancellation of this Note; |
(each, a “Resolution Measure”).
For the avoidance of doubt, any non-payment by the Issuer arising out of any such Resolution Measure will not constitute a failure by the Issuer under the terms of this Note or the Indenture to make a payment of principal of, interest on, or other amounts owing under this Note.
| (b) | By its acquisition of this Note, the Holder (including each Beneficial Owner) of this Note shall be deemed irrevocably to have agreed: |
| (i) | to be bound by, to acknowledge and to accept any Resolution Measure and any amendment, modification or variation of the terms and conditions of this Note to give effect to any Resolution Measure; |
| (ii) | that it will have no claim or other right against the Issuer arising out of any Resolution Measure; and |
| (iii) | that the imposition of any Resolution Measure will not constitute a default or an event of default (A) under this Note, (B) under the Indenture or (C) for the purpose of, but only to the fullest extent permitted by, the Trust Indenture Act (including, without limitation, Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act) and applicable law. |
20
| (c) | The terms and conditions of this Note shall continue to apply in relation to the residual principal amount of, or outstanding amount payable in respect of, this Note, subject to any modification of the amount of interest payable, if any, to reflect the reduction of the principal amount, and any further modification of the terms that the competent resolution authority may decide in accordance with applicable laws and regulations relating to the resolution of banks, banking group companies, credit institutions and/or investment firms incorporated in the Federal Republic of Germany. |
| (d) | No repayment of any then-current principal amount of this Note or payment of interest or any other amount thereon (to the extent of the portion thereof affected by the imposition of a Resolution Measure) shall become due and payable after the imposition of any Resolution Measure by the competent resolution authority, unless such repayment or payment would be permitted to be made by the Issuer under the laws and regulations of the Federal Republic of Germany then applicable to the Issuer. |
| (e) | By its acquisition of this Note, the Holder (and each Beneficial Owner) of this Note waives, to the fullest extent permitted by the Trust Indenture Act and applicable law, any and all claims against the Trustee or the Agents for, agrees not to initiate a suit against the Trustee or the Agents in respect of, and agrees that the Trustee and the Agents shall not be liable for, any action that the Trustee or the Agents take, or abstain from taking, in either case in accordance with the imposition of a Resolution Measure by the competent resolution authority with respect to this Note. |
| (f) | Upon the imposition of a Resolution Measure by the competent resolution authority with respect to this Note, the Issuer shall provide a written notice directly to the Holder in accordance with Section 12.04 of the Indenture as soon as practicable regarding such imposition of a Resolution Measure by the competent resolution authority for purposes of notifying the Holder of such occurrence. The Issuer shall also deliver a copy of such notice to the Trustee and the Agents for information purposes only, and the Trustee and the Agents shall be entitled to rely, and will not be liable for relying, on the competent resolution authority and the Resolution Measure identified in such notice. Any delay or failure by the Issuer to give notice shall not affect the validity or enforceability of any Resolution Measure nor the effects thereof on this Note. |
| (g) | If this Note is called or being called for redemption or repurchase by the Issuer, but the competent resolution authority has imposed a Resolution Measure with respect to this Note prior to the payment of the redemption or repurchase amount, the relevant redemption or repurchase notice, if any, shall be automatically rescinded and shall be of no force and effect, and no payment of the redemption or repurchase amount will be due and payable. |
21
| (h) | Upon the imposition of any Resolution Measure by the competent resolution authority, the Trustee shall not be required to take any further directions from the Holders under Section 5.09 of the Indenture, which section authorizes Holders of a majority in aggregate principal amount of the debt securities issued under the Indenture at the time Outstanding to direct certain actions relating to such debt securities, and if any such direction was previously given under Section 5.09 of the Indenture to the Trustee by the Holders, it shall automatically cease to be effective, be null and void and have no further effect. The Indenture shall impose no duties, obligations or liabilities upon the Trustee or the Agents whatsoever with respect to the imposition of any Resolution Measure by the competent resolution authority. The Trustee and the Agents shall be fully protected in acting or refraining from acting in accordance with a Resolution Measure. Notwithstanding the foregoing, if, following completion of the imposition of a Resolution Measure by the competent resolution authority, this Note remains outstanding, then the Trustee’s and each Agent’s duties under the Indenture shall remain applicable with respect to this Note following such completion to the extent that the Issuer, the Trustee and the Agents agree pursuant to a supplemental indenture, unless the Issuer, the Trustee and the Agents agree that a supplemental indenture is not necessary. |
| (i) | By the acquisition of this Note, the Holder and each Beneficial Owner of this Note shall be deemed irrevocably to have (i) consented to the imposition of any Resolution Measure as it may be imposed without any prior notice by the competent resolution authority of its decision to exercise such power with respect to this Note, (ii) authorized, directed and requested the Depositary and any direct participant in the Depositary or other intermediary through which it holds this Note to take any and all necessary action, if required, to implement the imposition of any Resolution Measure with respect to this Note as it may be imposed, without any further action or direction on the part of the Holder of this Note, the Trustee or the Agents and (iii) acknowledged and accepted that the provisions contained in Article 6 of the Indenture are exhaustive on the matters described in Article 6 of the Indenture to the exclusion of any other agreements, arrangements or understandings between it and the Issuer relating to the terms and conditions of this Note. |
| (j) | If the competent resolution authority imposes a Resolution Measure with respect to less than the total outstanding principal amount of the debt securities issued under the Indenture, unless the Trustee or the Agents are otherwise instructed by the Issuer or the competent resolution authority, any cancellation, write-off or conversion into equity made in respect of such debt securities pursuant to the Resolution Measure will be made on a substantially pro rata basis among any series of debt securities issued under the Indenture. |
| (k) | Any obligations of the Holders to indemnify the Trustee and the Agents under the Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or this Note. To the extent not otherwise precluded by a Resolution Measure, the Issuer’s obligations to indemnify the Trustee and the Agents in accordance with Sections 7.02 and 7.06 of the Indenture shall survive the imposition of a Resolution Measure by the competent resolution authority with respect to the Issuer or this Note. |
22
The Indenture permits the Issuer and the Trustee, subject to the prior consent of the competent supervisory authority in respect of this Note, if required under the CRR or other applicable laws and regulations for the recognition of the Securities as Tier 2 capital, and with the consent of the Holders of not less than a majority in aggregate principal amount of the debt securities of all series issued under the Indenture then outstanding and affected (voting as one class), to execute supplemental indentures adding any provisions to or changing in any manner the rights of the Holders of each series so affected; provided that the Issuer and the Trustee may not, without the consent of the Holder of each outstanding debt security affected thereby, (a) extend the final maturity of any such debt security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof, or change the currency of payment thereof, or modify or amend the provisions for conversion of any currency into any other currency, or impair or affect the rights of any Holder to institute suit for the payment thereof, modify the provisions of the Indenture with respect to the subordination of this Note in a manner adverse to the Holder or (b) reduce the aforesaid percentage in principal amount of debt securities the consent of the Holders of which is required for any such supplemental indenture. The Issuer and the Trustee may, without the consent of the Holder of this Note, conform the terms of this Note to the description thereof in the prospectus and prospectus supplements relating to the offering and sale of this Note. No subsequent agreement shall make the principal and interest payable on any series of the Notes, payable in different coins or currencies, i.e., the relevant coin or currency must always be identical for the relevant series of the Notes.
So long as this Note shall be outstanding, the Issuer will cause to be maintained an office or agency for the payment of the principal of and premium, if any, and interest, if any, on this Note as herein provided in the United States, and an office or agency in the United States for the registration, transfer and exchange as aforesaid of this Note. The Issuer may designate other agencies for the payment of said principal, premium and interest at such place or places outside the United States (subject to applicable laws and regulations) as the Issuer may decide. So long as there shall be such an agency, the Issuer shall keep the Trustee advised of the names and locations of such agencies, if any are so designated.
23
With respect to moneys paid by the Issuer and held by the Trustee or any Paying Agent for payment of the principal of or interest or premium, if any, on any Notes that remain unclaimed at the end of two years after such principal, interest or premium shall have become due and payable (whether at maturity or upon call for redemption or otherwise), (i) the Trustee or such Paying Agent shall notify the Holders of such Notes that such moneys shall be repaid to the Issuer and any person claiming such moneys shall thereafter look only to the Issuer for payment thereof and (ii) such moneys shall be so repaid to the Issuer. Upon such repayment all liability of the Trustee or such Paying Agent with respect to such moneys shall thereupon cease, without, however, limiting in any way any obligation that the Issuer may have to pay the principal of or interest or premium, if any, on this Note as the same shall become due.
Subject to the imposition of a Resolution Measure, no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the amount of cash as determined in accordance with the provisions set forth on the face of this Note due with respect to the principal of, premium, if any, and interest, if any, on this Note at the time, place, and rate, and in the coin or currency, herein prescribed unless otherwise agreed between the Issuer and the registered Holder of this Note.
Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Holder in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if any, or the interest, if any, on this Note, for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Issuer or of any successor corporation, either directly or through the Issuer or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
This Note shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the State of New York, except with respect to the provisions relating to the subordination of the Notes set forth in the second and third paragraph of Section 2.03 of the Indenture, which 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.
As used herein:
| (a) | the term “Beneficial Owner” shall mean the beneficial owners of this Note (and any interest therein); |
| (b) | the term “bridge bank” means 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 the event of the imposition of Resolution Measures; |
24
| (c) | the term “Business Day” means, unless otherwise provided on the face of this Note, any day other than a day that (i) is a Saturday or Sunday, (ii) is a day on which banking institutions generally in the City of New York are authorized or obligated by law, regulation or executive order to close, (iii) is a day on which transactions in U.S. Dollars are not conducted in the City of New York or (iv) a day on which T2 is not operating; |
| (d) | the term “competent resolution authority” means any authority with the ability to exercise a Resolution Measure; |
| (e) | the term “CRR” means Regulation (EU) No 575/2013 of the European Parliament and the Council of June 26, 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (including any provisions of regulatory law supplementing this Regulation); to the extent that any provisions of the CRR are amended or replaced, the term CRR as used in this Note shall refer to such amended provisions or successor provisions; |
| (f) | the term “competent supervisory authority” means any authority that bears primary responsibility for the prudential supervision of the Issuer; |
| (g) | the term “Euro-zone” means the region comprising member states of the European Union that have adopted the single currency in accordance with the relevant treaty of the European Union, as amended; |
| (h) | the term “group entity” shall mean an entity that is included in the corporate group subject to a Resolution Measure; |
| (i) | the term “Notices” refers to notices to the Holders of the Notes at each Holder’s address as that address appears in the register for the Notes by first class mail, postage prepaid, and to be given by publication in an authorized newspaper in the English language and of general circulation in the Borough of Manhattan, The City of New York; provided that notice may be made, at the option of the Issuer, through the customary notice provisions of the clearing system or systems through which beneficial interests in this Note are owned. Such Notices will be deemed to have been given on the date of such publication (or other transmission, as applicable), or if published in such newspapers on different dates, on the date of the first such publication; |
| (j) | the term “Own Funds Instruments” means own funds instruments of the Issuer within the meaning of the CRR; |
| (k) | the term “Priority Claims” means claims against, and obligations of, the Issuer which do not qualify as Own Funds Instruments; this includes (i) all claims of unsubordinated creditors of the Issuer (including claims against the Issuer under its unsecured and unsubordinated non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including obligations of the Issuer under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) sentence 2 of the German Banking Act) (or any successor provision thereof)), (ii) the claims specified in Section 39(1) nos. 1 to 5 of the German Insolvency Code |
25
| (Insolvenzordnung) (or any successor provision thereof), (iii) contractually subordinated obligations of the Issuer within the meaning of Section 39(2) of the German Insolvency Code (or any successor provision thereof) which do not qualify as Own Funds Instruments at the time Resolution Measures are imposed on the Issuer or in the event of a dissolution, liquidation, insolvency, composition or other proceedings for the avoidance of insolvency of, or against, the Issuer, and (iv) other contractually subordinated obligations of the Issuer within the meaning of Section 46f(7a) sentences 3 and 4 of the German Banking Act (or any successor provision thereto); |
| (l) | the term “Reuters page” means the display on Thomson Reuters Eikon, or any successor service, on the page or pages specified on the face hereof, or any replacement page or pages on that service; |
| (m) | the term “T2” means the real time gross settlement system operated by the Eurosystem, or any successor system; |
| (n) | the term “TARGET Settlement Day” means any day on which T2 is operating; and |
| (o) | the term “United States” means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction. |
All other terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
26
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
| TEN COM |
– | as tenants in common | ||
| TEN ENT |
– | as tenants by the entireties | ||
| JT TEN |
– | as joint tenants with right of survivorship and not as tenants in common |
UNIF GIFT MIN ACT – Custodian
| (Minor) |
(Cust) |
Under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
27
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and appointing such person attorney to transfer such Note on the books of the Issuer, with full power of substitution in the premises.
Dated:
| NOTICE: | The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever. |
28
EXHIBIT 4.9(b)
FIRST SUPPLEMENTAL CAPITAL SECURITIES INDENTURE
AMONG
DEUTSCHE BANK AKTIENGESELLSCHAFT
Issuer
AND
THE BANK OF NEW YORK MELLON
Trustee
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
Paying Agent, Calculation Agent, Transfer Agent, Registrar and Authenticating Agent
Dated as of April 26, 2024
Supplemental to the Amended and Restated Capital Securities Indenture
Dated as of August 3, 2021
TABLE OF CONTENTS
| ARTICLE 1 AMENDMENTS TO THE INDENTURE |
1 | |||||
| Section 1.01 |
Modification of Certain Terms Defined |
1 | ||||
| Section 1.02 |
Amount Unlimited; Issuable in Series |
3 | ||||
| Section 1.03 |
Mutilated, Defaced, Destroyed, Lost and Stolen Capital Securities |
6 | ||||
| Section 1.04 |
Supplemental Capital Securities Indentures With Consent of Securityholders |
7 | ||||
| Section 1.05 |
Notices and Demands on Issuer, Trustee and Holders of Capital Securities and Coupons |
8 | ||||
| Section 1.06 |
Payments Due on Saturdays, Sundays or Holidays |
8 | ||||
| Section 1.07 |
Governing Law |
9 | ||||
| Section 1.08 |
Redemption of Capital Securities |
9 | ||||
| ARTICLE 2 MISCELLANEOUS PROVISIONS |
9 | |||||
| Section 2.01 |
Further Assurances |
9 | ||||
| Section 2.02 |
Other Terms of Indenture |
9 | ||||
| Section 2.03 |
Terms Defined |
9 | ||||
| Section 2.04 |
Governing Law |
10 | ||||
| Section 2.05 |
Counterparts |
10 | ||||
| Section 2.06 |
Responsibility of the Trustee |
10 | ||||
i
THIS FIRST SUPPLEMENTAL CAPITAL SECURITIES INDENTURE, dated as of April 26, 2024 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, 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 Amended and Restated Capital Securities Indenture, dated as of August 3, 2021, among the Issuer, the Trustee and DBTCA (the “Indenture”);
WHEREAS, Section 9.01(c) of the 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 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, the Issuer advises that there are no Outstanding Capital Securities of any series created prior to the execution of this First 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 desires and the Trustee has agreed to amend Sections 1.01, 2.03, 2.09, 9.02, 12.06, 12.08 and 13.01 of the Indenture with respect to the Securities to be issued under the Indenture on or after the date of this First Supplemental Capital Securities Indenture;
WHEREAS, the entry into this First Supplemental Capital Securities Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture; and
WHEREAS, all things necessary to make this First Supplemental 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
AMENDMENTS TO THE INDENTURE
Section 1.01 Modification of Certain Terms Defined. With respect to the Capital Securities to be issued under the Indenture on or after the date of this First Supplemental Capital Securities Indenture, certain definitions in Section 1.01 of the Indenture are amended and restated as follows (which shall be deemed to arise in Section 1.01 in their proper alphabetical order):
1
“Available Distributable Items” means, with respect to any payment of interest, the distributable items as defined in Article 4(1) no. 128 CRR; as of April 26, 2024, such term refers to the profit as of the end of the financial year of the Issuer immediately preceding the relevant interest payment date, for which audited annual financial statements are available, plus any profits brought forward and reserves available for that purpose, before distributions to holders of Own Funds Instruments (as defined below), less any losses brought forward and any profits which are non-distributable pursuant to the applicable laws of the European Union or Germany or the articles of association of the Issuer and any sums placed in non-distributable reserves in accordance with the applicable laws of Germany or the articles of association of the Issuer, in each case with respect to the specific category of own funds of the Capital Securities as Additional Tier 1 Instruments to which the applicable laws of the European Union or Germany or the articles of associations of the Issuer relate, provided that the distributable items and the relevant profits, losses and reserves shall be determined on the basis of the unconsolidated financial statements of the Issuer prepared in accordance with German commercial law (and not on the basis of its consolidated financial statements, if any).”
“Periodic Offering” means an offering of Capital Securities of a series from time to time, the specific terms of which Capital Securities, including, without limitation, the rate or rates of interest, if any, thereon, and the redemption provisions, if any, with respect thereto, are to be determined by the Issuer or its agents upon the issuance of such Capital Securities.”
“Priority Claims” means claims against, and obligations of, the Issuer ranking senior to, and which do not qualify as Additional Tier 1 capital or as Common Equity Tier 1 capital within the meaning of the CRR; this includes (i) all claims of unsubordinated creditors of the Issuer (including claims against the Issuer under its unsecured and unsubordinated non-preferred debt instruments within the meaning of Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz) (including obligations of the Issuer under any such debt instruments that were issued by the Issuer before July 21, 2018 and that are subject to Section 46f(9) sentence 2 of the German Banking Act) (or any successor provision thereof)), (ii) the claims specified in Section 39(1) nos. 1 to 5 of the German Insolvency Code (Insolvenzordnung) (or any successor provision thereof), (iii) contractually subordinated obligations within the meaning of Section 39(2) of the German Insolvency Code of the Issuer (or any successor provision thereof) which do not qualify as Own Funds Instruments at the time Resolution Measures are imposed on the Issuer or in the event of a dissolution, liquidation, insolvency, composition or other proceedings for the avoidance of insolvency of, or against, the Issuer, and (iv) other contractually subordinated obligations of the Issuer within the meaning of Section 46f(7a) sentences 3 and 4 of the German Banking Act (or any successor provision thereto) and (v), the claims under Tier 2 instruments (within the meaning of Article 63 of the CRR) of the Issuer.”
2
Section 1.02 Amount Unlimited; Issuable in Series. With respect to the Capital Securities to be issued under the Indenture on or after the date of this First Supplemental Capital Securities Indenture, Section 2.03 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount of Capital Securities which may be authenticated and delivered under this Capital Securities Indenture is unlimited.
The Capital Securities may be issued in one or more series and each such series shall constitute unsecured and subordinated obligations of the Issuer, and are intended to qualify as own funds instruments of the Issuer within the meaning of Article 4(1) no. 119 of the CRR (“Own Funds Instruments”) in the form of Additional Tier 1 instruments (Instrumente des zusätzlichen Kernkapitals) within the meaning of Article 52 of the CRR (“Additional Tier 1 Instruments”).
The obligations under the Capital Securities shall constitute unsecured and subordinated obligations of the Issuer, ranking pari passu among themselves and, pari passu with all other equally subordinated obligations of the Issuer under other instruments issued as, and qualifying from time to time as, own funds instruments in the form of Additional Tier 1 Instruments. In the event Resolution Measures are imposed on the Issuer or in the event of the dissolution, liquidation, insolvency (Insolvenzverfahren), composition or other proceedings for the avoidance of insolvency of, or against, the Issuer, the obligations under any series of the Capital Securities shall be fully subordinated to the Priority Claims. In any such event, no amounts shall be payable in respect of the Capital Securities until all Priority Claims have been satisfied in full. If the Capital Securities are deemed not to have qualified as Additional Tier 1 instruments or other Own Funds Instruments or at any time cease to so qualify, the obligations under the Capital Securities will, pursuant to Section 46f(7a) sentence 3 of the German Banking Act, rank senior to all obligations under Own Funds Instruments.
Notwithstanding anything to the contrary set forth herein, but to the extent not otherwise precluded by a Resolution Measure or the application of mandatory aspects of insolvency law, the prior claims against the Issuer under Section 7.06 of this Capital Securities Indenture shall not be subordinated to the Priority Claims and shall survive the imposition of a Resolution Measure by the competent resolution authority in the priority set forth in Section 5.03 hereof, in each case.
Subject to the foregoing, the Issuer may satisfy its obligations under the Capital Securities also from other distributable assets (freies Vermögen) of the Issuer.
No Holder may set off or net its claims arising under the Securities against any claims of the Issuer. No collateral or guarantee shall be provided at any time to secure claims of the Holders under the Securities; any collateral or guarantee already provided or granted in the future in connection with other liabilities of the Issuer may not be used for claims under the Securities.
3
No subsequent agreement shall (i) limit, or shall have the effect of limiting, the subordination of the Capital Securities as provided for herein; (ii) amend any date on which a redemption option, if any, may be exercised with respect to any of the Capital Securities to provide for an earlier date; or (iii) shorten any applicable notice period. If the Capital Securities are redeemed or repurchased otherwise than in accordance with the terms of the Capital Securities, then the amounts paid must be returned to the Issuer irrespective of any agreement to the contrary.
There shall be established in one or more Board Resolutions, in one or more Officers’ Certificates detailing such establishment or in one or more indentures supplemental hereto, prior to the initial issuance of Capital Securities of any series:
(a) the designation of the Capital Securities of the series, which shall distinguish the Capital Securities of the series from the Capital Securities of all other series;
(b) any limit upon the aggregate principal amount of the Capital Securities of the series that may be authenticated and delivered under this Capital Securities Indenture (except for Capital Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Capital Securities of the series pursuant to Section 2.08, 2.09, 2.11, 9.05 or 13.03);
(c) if other than U.S. Dollars, the coin or currency in which the Capital Securities of that series are denominated (including, but not limited to, any Non-U.S. Currency);
(d) [intentionally omitted]
(e) the rate or rates at which the Capital Securities of the series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, on which such interest shall be payable and (in the case of Registered Capital Securities) on which a record shall be taken for the determination of Holders to whom interest is payable and/or the method by which such rate or rates or date or dates shall be determined;
(f) the place or places where the principal of and any interest on Capital Securities of the series shall be payable (if other than as provided in Section 3.02);
(g) the right, if any, of the Issuer to redeem Capital Securities, in whole or in part, at its option and the period or periods within which, the price or prices at which and any terms and conditions, including the Redemption Notice Period, upon which Capital Securities of the series may be so redeemed;
(h) if other than denominations of $200,000 and integral multiples of $1,000 in excess thereof in the case of Registered Capital Securities, or $200,000 and integral multiples of $1,000 in excess thereof in the case of Bearer Capital Securities, the denominations in which Capital Securities of the series shall be issuable;
(i) [intentionally omitted]
4
(j) [intentionally omitted]
(k) [intentionally omitted]
(l) [intentionally omitted]
(m) whether the Capital Securities of the series will be issuable as Registered Capital Securities (and if so, whether such Capital Securities will be issuable as Registered Global Capital Securities) or Bearer Capital Securities (with or without Coupons), or any combination of the foregoing, any restrictions applicable to the offer, sale, transfer, exchange or delivery of Bearer Capital Securities or Registered Capital Securities or the payment of interest thereon and, if other than as provided in Section 2.08, the terms upon which Bearer Capital Securities of any series may be exchanged for Registered Capital Securities of such series and vice versa;
(n) whether and under what circumstances, including regulatory requirements, the Issuer will pay additional amounts on the Capital Securities of the series in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem such Capital Securities in compliance with regulatory requirements rather than pay such additional amounts;
(o) if the Capital Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Capital Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
(p) any trustees, depositaries, authenticating or Paying Agents, transfer agents or registrars, calculation agents or any other agents with respect to the Capital Securities of such series;
(q) any other covenants with respect to the Capital Securities of such series;
(r) [intentionally omitted]
(s) [intentionally omitted]
(t) provisions, if any, for the cancellation of all or any portion of any interest payment at the Issuer’s discretion or under other circumstances;
(u) limitations, if any, on the Issuer’s ability to pay principal or interest in respect of the Capital Securities, including situations whereby the Issuer may be prohibited from making such payments;
(v) provisions, if any, for write-downs (and related write-ups, if any) in the principal amount of the Capital Securities and the effect, if any, of such write-downs (and related write-ups, if any) on interest payable on such Capital Securities;
5
(w) [intentionally omitted]
(x) any terms on which the Capital Securities may or will be converted at the Issuer’s option or otherwise into ordinary shares of the Issuer (“Conversion Securities”) and, if so, the nature and terms of the Conversion Securities into which such Capital Securities are convertible and any additional or other provisions relating to such conversion, including any triggering event that may give rise to such conversion (which may include, but shall not be limited to, certain regulatory capital events) and the terms upon which such conversion should occur;
(y) whether the Issuer may conduct an offer of Conversion Securities after any conversion of the Capital Securities in order to deliver cash proceeds to holders of Capital Securities in lieu of the Conversion Securities and the terms upon which any such offer should occur;
(z) any terms relating to the adjustment of the Conversion Securities into which the Capital Securities may be converted; and
(aa) any other terms of the series.
All Capital Securities of any one series and Coupons, if any, appertaining thereto, shall be substantially identical, except in the case of Registered Capital Securities as to denomination and except as may otherwise be provided by the Board Resolution or Officers’ Certificate referred to above or as set forth in any such indenture supplemental hereto. All Capital Securities of any one series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Capital Securities Indenture, if so provided by such Board Resolution, such Officers’ Certificate or in any such indenture supplemental hereto; provided, however, that additional Securities shall be issued under a separate CUSIP or ISIN number unless the additional Securities are issued pursuant to a “qualified reopening” of the original series, are otherwise treated as part of the same “issue” of debt instruments as the original series or are issued with less than a de minimis amount of original issue discount, in each case for U.S. federal income tax purposes.”
Section 1.03 Mutilated, Defaced, Destroyed, Lost and Stolen Capital Securities. With respect to the Capital Securities to be issued under the Indenture on or after the date of this First Supplemental Capital Securities Indenture, the second paragraph of Section 2.09 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“Upon the issuance of any substitute Capital Security or Coupon, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee or any agent) connected therewith. In case any Capital Security or Coupon which has been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead of issuing a substitute Capital Security, pay or authorize the payment of the same or the relevant Coupon (without surrender thereof except in the case of a mutilated or defaced Capital Security or Coupon), if the applicant for such payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security
6
or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to their satisfaction of the destruction, loss or theft of such Capital Security or Coupon and of the ownership thereof.”
Section 1.04 Supplemental Capital Securities Indentures With Consent of Securityholders. With respect to the Capital Securities to be issued under the Indenture on or after the date of this First Supplemental Capital Securities Indenture, the first paragraph of Section 9.02 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 9.02. Supplemental Capital Securities Indentures With Consent of Securityholders. Subject to the prior consent of the competent supervisory authority in respect of Outstanding Capital Securities of any series, if required under the CRR or other applicable laws and regulations for the recognition of the Capital Securities as Additional Tier 1 capital, and with the consent (evidenced as provided in Article 8) of the Holders of not less than a majority in aggregate principal amount of the Capital Securities at the time Outstanding of all series affected by such supplemental indenture (voting as one class), the Issuer, when authorized by a resolution of its Board (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order), and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Capital Securities Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Capital Securities of each such series or of the Coupons appertaining to such Capital Securities; provided, that no such supplemental indenture shall, (a) (i) reduce the principal amount thereof in any manner not permitted pursuant to the terms of such Capital Security, (ii) reduce the rate or change the time of payment of interest thereon in any manner not permitted pursuant to the terms of such Capital Security, (iii) reduce any amount payable on redemption thereof, (iv) make the principal and interest thereon payable in any coin or currency other than that provided in the Capital Securities and Coupons or in accordance with the terms thereof, (v) modify or amend any provisions for converting any currency into any other currency as provided in the Capital Securities or Coupons or in accordance with the terms thereof, (vi) modify or amend any provisions relating to the conversion of the Capital Securities or Coupons for Conversion Securities, including the determination of the amount of Conversion Securities into which the Capital Securities shall be converted, other than as provided in the antidilution provisions or other similar adjustment provisions of the Capital Securities or Coupons or otherwise in accordance with the terms thereof, (vii) alter the provisions of Section 12.12 or 12.14 or impair or affect the right of any Securityholder to institute suit for the payment thereof or, if the Capital Securities provide therefor, any right of repayment at the option of the Securityholder or (viii) modify the provisions of this Capital Securities Indenture with respect to the subordination of the Capital Securities in a manner adverse to the Holders; or (b) reduce the aforesaid percentage of Capital Securities of any series, the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holders of each Capital Security so affected. No subsequent agreement shall make the principal and interest payable on any Capital Securities or Coupons, as the case may be, payable in different coins or currencies, i.e., the relevant coin or currency must always be identical for the relevant series of Capital Securities and Coupons, as the case may be.”
7
Section 1.05 Notices and Demands on Issuer, Trustee and Holders of Capital Securities and Coupons. With respect to the Capital Securities to be issued under the Indenture on or after the date of this First Supplemental Capital Securities Indenture, the first paragraph of Section 12.04 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 12.04. Notices and Demands on Issuer, Trustee and Holders of Capital Securities and Coupons. Any notice or demand which by any provision of this Capital Securities Indenture is required or permitted to be given or served by the Trustee or by the Holders of Capital Securities or Coupons to or on the Issuer may be given or served by being deposited postage prepaid, first-class mail or by overnight delivery (except as otherwise specifically provided herein) addressed (until another address of the Issuer is filed by the Issuer with the Trustee) to Deutsche Bank Americas, c/o Office of the Corporate Secretary, 1 Columbus Circle, Mail Stop NYC01-1950, New York, New York 10019-8735. Any notice, direction, request or demand by the Issuer or any Holder of Capital Securities or Coupons to or upon the Trustee shall be deemed to have been sufficiently given or served by being deposited postage prepaid, first-class mail or by overnight delivery (except as otherwise specifically provided herein) addressed (until another address of the Trustee is filed by the Trustee with the Issuer) to:
| The Bank of New York Mellon, London Branch 160 Queen Victoria Street London EC4V 4LA United Kingdom
| ||
| with a copy to: |
The Bank of New York Mellon | |
| Corporate Trust Administration Internal Corporate Trust Services Merck House Seldown, Poole Dorset BH15 1PX United Kingdom Email: Corpsov1@bnymellon.com” |
Section 1.06 Payments Due on Saturdays, Sundays or Holidays. With respect to the Capital Securities to be issued under the Indenture on or after the date of this First Supplemental Capital Securities Indenture, Section 12.06 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 12.06. Payments Due on Saturdays, Sundays or Holidays. Unless otherwise provided in Capital Securities of a series, if the date for payment of interest on or any Coupons appertaining thereto or the date fixed for redemption or repayment of any such Capital Security or Coupon shall not be a Business Day, then payment of interest or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of payment or the date fixed for redemption, and no interest shall accrue for the period after such date.”
8
Section 1.07 Governing Law. With respect to the Capital Securities to be issued under the Indenture on or after the date of this First Supplemental Capital Securities Indenture, Section 12.08 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 12.08. Governing Law. This Capital Securities Indenture and each Capital Security and Coupon 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 the State of New York, except with respect to the provisions of Section 2.03 paragraphs 2 through 5 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 1.08 Redemption of Capital Securities. With respect to the Capital Securities to be issued under the Indenture on or after the date of this First Supplemental Capital Securities Indenture, Section 13.01 of the Indenture is hereby amended and restated in its entirety and shall read as follows:
“Section 13.01. Applicability of Article; Approval by Competent Supervisory Authority. The provisions of this Article shall be applicable to the Capital Securities of any series which are redeemable at the option of the Issuer. Any redemption of Capital Securities of any series shall be at the exclusive option of the Issuer and subject to (i) receipt by the Issuer of prior written approval of the competent supervisory authority and compliance with the Capital Regulations (in particular, the CRR), other regulations or policies of the competent supervisory authority, and no redemption shall occur before the fifth anniversary of the date of issuance, unless the conditions set out in Article 78(4) of the CRR have been satisfied; (ii) compliance with any other regulatory requirements; and (iii) the requirements set forth in Section 2.03. The Holders of the Securities shall have no right of redemption whatsoever.”
ARTICLE 2
MISCELLANEOUS PROVISIONS
Section 2.01 Further Assurances. The Issuer will, upon request by the Trustee, execute and deliver such further instruments and do such further acts as may reasonably be necessary or proper to carry out more effectively the purposes of this First Supplemental Capital Securities Indenture.
Section 2.02 Other Terms of Indenture. Except insofar as herein otherwise expressly provided, all provisions, terms and conditions of the Indenture are in all respects ratified and confirmed and shall remain in full force and effect.
Section 2.03 Terms Defined. All terms defined elsewhere in the Indenture shall have the same meanings when used herein.
9
Section 2.04 Governing Law. This First 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 the State of New York, except with respect to the provisions of Section 2.03 paragraphs 2 through 5 of the Indenture 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 First 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. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective as delivery of a manually executed counterpart of this First Supplemental Capital Securities Indenture. Each of the parties to this First Supplemental Capital Securities Indenture represents that it has undertaken commercially reasonable steps to verify the identity of each individual person executing any such counterparts via electronic signature on behalf of such party and has and will maintain sufficient records of the same. This First Supplemental Capital Securities Indenture shall become effective when each party shall have received a counterpart hereof signed by all of the other parties to this First Supplemental Capital Securities Indenture.
Section 2.06 Responsibility of the Trustee. The recitals contained herein shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Capital Securities Indenture or the Capital Securities.
[SIGNATURE PAGE FOLLOWS]
10
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Capital Securities Indenture to be duly executed, all as of the date first written above.
| DEUTSCHE BANK AKTIENGESELLSCHAFT | ||
| By: | /s/ Andrew Rivas | |
| Name: Andrew Rivas | ||
| Title: Director | ||
| By: | /s/ VyVy Huynh | |
| Name: VyVy Huynh | ||
| Title: Vice President | ||
| THE BANK OF NEW YORK MELLON, as Trustee | ||
| By: | /s/ Stacey B. Poindexter | |
| Name: Stacey B. Poindexter | ||
| Title: Vice President | ||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Paying Agent, Calculation Agent, Transfer Agent, Registrar and Authenticating Agent | ||
| By: | /s/ Chris Niesz | |
| Name: Chris Niesz | ||
| Title: Vice President | ||
| By: | /s/ Sebastian Hidalgo | |
| Name: Sebastian Hidalgo | ||
| Title: Assistant Vice President | ||
EXHIBIT 5.1(a)
| ||||
|
|
| ||
D: +44 20 7614 2230
dgottlieb@cgsh.com
April 26, 2024
Deutsche Bank Aktiengesellschaft
Taunusanlage 12
60325 Frankfurt am Main
Germany
Ladies and Gentlemen:
We have acted as special United States counsel to Deutsche Bank Aktiengesellschaft, a stock corporation organized under the laws of the Federal Republic of Germany (the “Bank”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of a registration statement on Form F-3 (such registration statement as amended by a pre-effective amendment no. 1 to the registration statement, including the documents incorporated by reference therein, the “Registration Statement”) relating to the offering from time to time, together or separately and in one or more series (if applicable), of (i) ordinary shares with no par value of the Bank (the “Shares”), (ii) tradable subscription rights to subscribe for Shares (the “Subscription Rights”), (iii) capital securities of the Bank (the “Capital Securities”), (iv) unsecured senior debt securities of the Bank (the “Senior Notes”), (v) unsecured subordinated debt securities of the Bank (the “Subordinated Notes”), (vi) warrants of the Bank (the “Warrants”), (vii) purchase contracts of the Bank (the “Purchase Contracts”) and (viii) units of the Bank (the “Units” and, together with the Shares, the Subscription Rights, the Capital Securities, the Senior Notes, the Subordinated Notes, the Warrants and the Purchase Contracts, the “Securities”). The Securities being registered under the Registration Statement will be offered on a continuous or delayed basis pursuant to the provisions of Rule 415 under the Securities Act.
The Capital Securities are to be issued from time to time under an amended and restated capital securities indenture, dated August 3, 2021 (as amended and supplemented by the first supplemental capital securities indenture, dated April 26, 2024), among the Bank, as issuer, The Bank of New York Mellon, as trustee (the “Capital Securities Trustee”), and Deutsche Bank Trust Company Americas, as paying agent, calculation agent, transfer agent and registrar and authenticating agent (the “Capital Securities Indenture”). The Subordinated Notes are to be issued from time to time under an amended and restated subordinated indenture, dated as of August 3, 2021 (as amended and supplemented by the first supplemental subordinated indenture, dated April 26, 2024), among the Bank, as issuer, Wilmington Trust, National Association, as trustee (the “Subordinated Notes Trustee”), and Deutsche Bank Trust Company Americas, as paying agent, transfer agent and registrar and authenticating agent (the “Subordinated Indenture”). The Warrants are to be issued from time to time under a warrant agreement, dated as of November 15, 2007, among the Bank, as issuer, and Deutsche Bank Trust Company Americas, as warrant agent (as amended or supplemented through the date hereof, the “Warrant Agreement”).
In arriving at the opinions expressed below, we have reviewed the following documents:
| (a) | the Registration Statement; |
| (b) | an executed copy of the Capital Securities Indenture; |
| (c) | an executed copy of the Subordinated Indenture; and |
| (d) | an executed copy of the Warrant Agreement, |
in each case filed as exhibits to the Registration Statement. 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 (i) the accuracy as to factual matters of each document we have reviewed and (ii) that the relevant Securities in global form, and any such Securities in definitive form issued in exchange therefor, will conform to the forms thereof that we have reviewed or that are set forth in the board resolution, officers’ certificate or supplemental indenture, as the case may be, pursuant to which such Securities are issued.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that:
1. When the issuance, execution and delivery by the Bank of the Capital Securities of a series have been duly authorized by all necessary corporate action of the Bank in accordance with the provisions of the Capital Securities Indenture, and when such Capital Securities have been duly executed and delivered by the Bank, authenticated by the Capital Securities Trustee and sold as described in the Registration Statement and the supplement or supplements to the prospectus relating to such Capital Securities, such Capital Securities will
2
be valid, binding and enforceable obligations of the Bank, entitled to the benefits of the Capital Securities Indenture (except that we express no opinion with respect to the validity, binding effect or enforceability of the provisions of the Capital Securities relating to their ranking, which provisions are expressed to be governed by the laws of the Federal Republic of Germany).
2. When the issuance, execution and delivery by the Bank of the Subordinated Notes of a series have been duly authorized by all necessary corporate action of the Bank in accordance with the provisions of the Subordinated Indenture, and when such Subordinated Notes have been duly executed and delivered by the Bank, authenticated by the Subordinated Notes Trustee and sold as described in the Registration Statement and the supplement or supplements to the prospectus relating to such Subordinated Notes, such Subordinated Notes will be valid, binding and enforceable obligations of the Bank, entitled to the benefits of the Subordinated Indenture (except that we express no opinion with respect to the validity, binding effect or enforceability of the provisions of the Subordinated Notes relating to their ranking, which provisions are expressed to be governed by the laws of the Federal Republic of Germany).
3. When the issuance, execution and delivery by the Bank of the Warrants of a series have been duly authorized by all necessary corporate action of the Bank in accordance with the provisions of the Warrant Agreement, and when such Warrants have been duly executed and delivered by the Bank, authenticated by the warrant agent and sold as described in the Registration Statement and the supplement or supplements to the prospectus relating to such Warrants, such Warrants will be valid, binding and enforceable obligations of the Bank.
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 or, prior to the issuance of the relevant Securities, will satisfy, 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.
In rendering the opinions expressed above, we have further assumed that (a) the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective and will comply with all applicable laws, (b) the Registration Statement and any amendments thereto (including post-effective amendments) will be effective and will comply with all applicable laws at the time the Capital Securities, the Subordinated Notes and the Warrants are offered or issued as contemplated by the Registration Statement, (c) the Capital Securities, the Subordinated Notes and the Warrants will be offered, issued, sold and delivered in compliance with applicable law and any requirements thereof set forth in any corporate action authorizing such Capital Securities and the Capital Securities Indenture, such Subordinated Notes and the Subordinated Indenture, and such Warrants and the Warrant Agreement, and any other agreement governing such
3
Capital Securities, such Subordinated Notes and such Warrants and in the manner contemplated by the Registration Statement and the prospectus and prospectus supplement, pricing supplement and/or term sheet applicable to such Securities, (d) the Capital Securities, the Subordinated Notes and the Warrants will be sold and delivered to, and paid for by, the purchasers at the price specified in, and in accordance with the terms of, an agreement or agreements duly authorized, executed and delivered by the parties thereto, (e) the Bank will duly authorize the offering and issuance of the Capital Securities, the Subordinated Notes and the Warrants, will duly authorize, approve and establish the final terms and conditions thereof and will take any other appropriate additional corporate action, (f) the terms of all Capital Securities, all Subordinated Notes and all Warrants will conform in all material respects to the descriptions thereof in the Registration Statement and in the prospectus and prospectus supplement, pricing supplement and/or term sheet applicable to such Securities and to the terms of the Capital Securities Indenture, Subordinated Indenture or Warrant Agreement (as any of these may from time to time be amended or supplemented), respectively, (g) the terms of the Capital Securities, the Subordinated Notes and the Warrants will not violate any applicable law, conflict with any matter of public policy, result in a default under, or breach of, any agreement or instrument binding upon the Bank or violate any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank and (h) each series of Capital Securities, Subordinated Notes and Warrants will be issued with an original aggregate principal amount (or in the case of Capital Securities, Subordinated Notes or Warrants issued at original issue discount, an aggregate issue price) of U.S.$2,500,000 or more.
We express no opinion as to the subject matter jurisdiction of any United States Federal court to adjudicate any action relating to the Capital Securities Indenture or the Capital Securities, the Subordinated Indenture or the Subordinated Notes, or the Warrant Agreement or the Warrants, 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 12.13 of the Capital Securities Indenture (or comparable provisions in any of the Capital Securities), Section 12.12 of the Subordinated Indenture (or comparable provisions in any of the Subordinated Notes) or Section 6.10 of the Warrant Agreement (or comparable provisions in any of the Warrants), in each case relating to currency indemnity. We note that the designation in Section 12.13 of the Capital Securities Indenture and Section 12.11 of the Subordinated Indenture of the U.S. federal courts sitting in New York City as the venue for actions or proceedings relating to such indenture is (notwithstanding the waiver in Section 12.13 of the Capital Securities Indenture and Section 12.11 of the Subordinated Indenture, respectively) subject to the power of such courts to transfer actions pursuant to 28 U.S.C. § 1404(a) or to dismiss such actions or proceedings on the grounds that such a federal court is an inconvenient forum for such an action or proceeding.
We express no opinion relating to any ranking provisions in any Capital Security or any Subordinated Note to the extent such provisions of the Subordinated Notes and Capital Securities purport to be governed by the laws of the Federal Republic of Germany.
4
With respect to our opinions expressed above as they relate to Capital Securities, Subordinated Notes or Warrants denominated in a currency other than U.S. dollars, we note that by statute New York provides that a judgment or decree rendered in a currency other than the currency of the United States shall be converted into U.S. dollars at the rate of exchange prevailing on the date of entry of the judgment or decree. There is no corresponding Federal statute and no controlling Federal court decision on this issue. Accordingly, we express no opinion as to whether a Federal court would award a judgment in a currency other than U.S. dollars or, if it did so, whether it would order conversion of the judgment into U.S. dollars.
The foregoing opinions are limited to the federal law of the United States of America and the law of the State of New York. With respect to matters governed by the law of the Federal Republic of Germany, we have relied on the opinion of Group Legal Services of the Bank dated April 26, 2024, as German counsel to the Bank, which has been filed as Exhibit 5.2 to the Registration Statement.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1(a) to the Registration Statement and the use of our name in the Prospectus constituting a part of the Registration Statement and in any prospectus supplements related thereto under the heading “Legal Matters.” In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder. We assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein.
| Very truly yours, | ||
| CLEARY GOTTLIEB STEEN & HAMILTON LLP | ||
| By | /s/ David I. Gottlieb | |
| David I. Gottlieb, a Partner | ||
5
EXHIBIT 5.1(b)
|
| ||||
|
|
|
| ||
D: +44 20 7614 2230
dgottlieb@cgsh.com
April 26, 2024
Deutsche Bank Aktiengesellschaft
Taunusanlage 12
60325 Frankfurt am Main
Germany
Ladies and Gentlemen:
We have acted as special United States counsel to Deutsche Bank Aktiengesellschaft, a stock corporation organized under the laws of the Federal Republic of Germany (the “Bank”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of a registration statement on Form F-3 (such registration statement as amended by a pre-effective amendment no. 1 to the registration statement, including the documents incorporated by reference therein, the “Registration Statement”) relating to the offering from time to time, together or separately and in one or more series (if applicable), of, among other securities, (i) purchase contracts of the Bank (the “Purchase Contracts”) and (ii) units of the Bank (the “Units” and, together with the Purchase Contracts, the “Securities”). The Securities being registered under the Registration Statement will be offered on a continuous or delayed basis pursuant to the provisions of Rule 415 under the Securities Act.
The Purchase Contracts are to be issued from time to time under one or more purchase contract agreements (each, a “Purchase Contract Agreement”) to be entered into by the Bank and one or more institutions, as purchase contract agents (each, a “Purchase Contract Agent”), each to be identified in the applicable Purchase Contract Agreement, on behalf of the holders from time to time of the Purchase Contracts.
The Units are to be issued from time to time under one or more unit agreements (each, a “Unit Agreement”) to be entered into by the Bank and one or more institutions, as unit agents (each, a “Unit Agent”), each to be identified in the applicable Unit Agreement, and the holders from time to time of the Units.
In arriving at the opinions expressed below, we have reviewed the Registration Statement. In addition, we have made such investigations of law as we have deemed appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that:
1. When the issuance, execution and delivery by the Bank of the Purchase Contracts of a series have been duly authorized by all necessary corporate action of the Bank in accordance with the provisions of the applicable Purchase Contract Agreement(s), and when such Purchase Contracts have been duly executed and delivered by the Bank, authenticated (to the extent required by such Purchase Contract Agreement(s)) by the applicable Purchase Contract Agent and sold as described in the Registration Statement and the supplement or supplements to the prospectus relating to such Purchase Contracts, such Purchase Contracts will be valid, binding and enforceable obligations of the Bank (except that we express no opinion with respect to the validity, binding effect or enforceability of any provisions relating to the ranking of the Purchase Contract that are expressed to be governed by the laws of the Federal Republic of Germany).
2. When the issuance, execution and delivery by the Bank of the Units of a series have been duly authorized by all necessary corporate action of the Bank in accordance with the provisions of the applicable Unit Agreement(s), and when such Units have been duly executed and delivered by the Bank, authenticated (to the extent required by such Unit Agreement(s)) by the applicable Unit Agent and sold as described in the Registration Statement and the supplement or supplements to the prospectus relating to such Units, such Units will be valid, binding and enforceable obligations of the Bank (except that we express no opinion with respect to the validity, binding effect or enforceability of any provisions relating to the ranking of the Units that are expressed to be governed by the laws of the Federal Republic of Germany).
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 or, prior to the issuance of the relevant Securities, will satisfy 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.
2
In rendering the opinions expressed above, we have further assumed that (a) the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective and will comply with all applicable laws, (b) the Registration Statement and any amendments thereto (including post-effective amendments) will be effective and will comply with all applicable laws at the time the Purchase Contracts and the Units are offered or issued as contemplated by the Registration Statement, (c) the Purchase Contracts and the Units will be offered, issued and sold under one or more Purchase Contract Agreements or Unit Agreements between the Bank and a financial institution identified as a Purchase Contract Agent and Unit Agent, respectively, (d) the Purchase Contracts and the Units will be offered, issued, sold and delivered in compliance with applicable law and any requirements thereof set forth in any corporate action authorizing such Purchase Contracts and the applicable Purchase Contract Agreement(s), and such Units and the applicable Unit Agreement(s), and any other agreement governing such Purchase Contracts and such Units and in the manner contemplated by the Registration Statement and the prospectus and prospectus supplement, pricing supplement and/or term sheet applicable to such Securities, (e) the Purchase Contracts and the Units will be sold and delivered to, and paid for by, the purchasers at the price specified in, and in accordance with the terms of, an agreement or agreements duly authorized, executed and delivered by the parties thereto, (f) the Bank will duly authorize the offering and issuance of the Purchase Contracts and the Units, will duly authorize, execute and deliver the applicable Purchase Contract Agreement and the applicable Unit Agreement with any amendments thereto and any other document contemplated thereby or by the Registration Statement, will duly authorize, approve and establish the final terms and conditions of the Purchase Contracts and the Units and will take any other appropriate additional corporate action, (g) the terms of all Purchase Contracts and all Units will conform in all material respects to the descriptions thereof in the Registration Statement and in the prospectus and prospectus supplement, pricing supplement and/or term sheet applicable to such Securities and to the terms of the applicable Purchase Contract Agreement(s) or Unit Agreement(s) (as any of these may from time to time be established, amended or supplemented), respectively, (h) the terms of the Purchase Contracts and the Units will not violate any applicable law, conflict with any matter of public policy, result in a default under, or breach of, any agreement or instrument binding upon the Bank or violate any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank and (i) each series of Purchase Contracts and Units will be issued with an original aggregate principal amount (or in the case of Securities issued at original issue discount, an aggregate issue price) of U.S.$2,500,000 or more.
We express no opinion as to (i) the subject matter jurisdiction of any United States Federal court to adjudicate any action relating to the Purchase Contracts or any Purchase Contract Agreement, or the Units or any Unit Agreement, where jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332 does not exist and (ii) the enforceability of the provisions of any Purchase Contract Agreement or any Unit Agreement, relating to currency indemnity. We note that any designation in any Purchase Contract Agreement or any Unit Agreement of the U.S. federal courts sitting in New York City as the venue for actions or proceedings relating to the Purchase Contract Agreement or Unit Agreement is (notwithstanding any waiver in such Purchase Contract Agreement or Unit Agreement) subject to the power of such courts to transfer actions pursuant to 28 U.S.C. § 1404(a) or to dismiss such actions or proceedings on the grounds that such a federal court is an inconvenient forum for such an action or proceeding.
3
With respect to our opinion above as it relates to any Purchase Contracts and Units denominated in a currency other than U.S. dollars, we note that by statute New York provides that a judgment or decree rendered in a currency other than the currency of the United States shall be converted into U.S. dollars at the rate of exchange prevailing on the date of entry of the judgment or decree. There is no corresponding Federal statute and no controlling Federal court decision on this issue. Accordingly, we express no opinion as to whether a Federal court would award a judgment in a currency other than U.S. dollars or, if it did so, whether it would order conversion of the judgment into U.S. dollars.
We express no opinion relating to any ranking provision in any Purchase Contract or any Unit to the extent it purports to be governed by the laws of the Federal Republic of Germany.
The foregoing opinions are limited to the federal law of the United States of America and the law of the State of New York.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1(b) to the Registration Statement and the use of our name in the Prospectus constituting a part of the Registration Statement and in any prospectus supplements related thereto under the heading “Legal Matters.” In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder. We assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein.
| Very truly yours, | ||
| CLEARY GOTTLIEB STEEN & HAMILTON LLP | ||
| By | /s/ David I. Gottlieb | |
| David I. Gottlieb, a Partner | ||
4
Exhibit 5.2
| Deutsche Bank |
|
Deutsche Bank Aktiengesellschaft
Taunusanlage 12
60325 Frankfurt am Main
Germany
April 26, 2024
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 preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”) of a Registration Statement on Form F-3 filed with the Commission on March 28, 2024 and a Pre-Effective Amendment No.1 thereto filed with the Commission on April 26, 2024 (together, the “Registration Statement”) with respect to an unspecified aggregate initial offering price or number of ordinary shares of the Bank (the “Shares”), tradable subscription rights to subscribe for Shares (the “Rights”), capital securities (the “Capital Securities”) of the Bank, unsecured debt securities of the Bank (including subordinated debt securities (the “Subordinated Debt Securities”) of the Bank, eligible liabilities senior debt securities (the “Eligible Liabilities Senior Debt Securities”) of the Bank, senior debt funding securities (the “Senior Debt Funding Securities”) of the Bank and senior debt securities (the “Senior Debt Securities”) of the Bank), warrants (“Warrants”) of the Bank, purchase contracts (“Purchase Contracts”) of the Bank and units (“Units”) of the Bank (collectively, the “Securities”).
Terms not defined herein shall have the same meaning as in the Registration Statement.
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 (the “Documents”):
| (a) | a draft of the Registration Statement and certain exhibits (“Exhibits”) filed with the Registration Statement; |
| (b) | the Articles of Association (Satzung) of the Bank as presently in force (the “Articles”); |
| (c) | copies of (i) the executed amended and restated indenture relating to the Capital Securities, dated as of August 3, 2021, as amended and supplemented by the First Supplemental Capital Securities Indenture dated April 26, 2024 (the “Capital Securities Indenture”), (ii) the executed amended and restated indenture relating to the Subordinated Debt Securities, dated as of August 3, 2021, as amended and supplemented by the First Supplemental Subordinated Indenture dated April 26, 2024 (the “Subordinated Indenture”), (iii) the executed amended and restated indenture relating to the Eligible Liabilities Senior Debt Securities, dated as of August 3, 2021, as amended and supplemented by the First Supplemental Eligibilities Liabilities Indenture dated April 26, 2024 (the “Eligible Liabilities Senior Indenture”), (iv) the executed amended and restated indenture relating to the Senior Debt Securities, dated as of August 3, 2021, as amended and supplemented by the First Supplemental Senior Indenture dated April 26, |
| 2024 (the “Senior Indenture”), and (v) the executed amended and restated indenture relating to the Senior Debt Funding Securities, dated as of August 3, 2021, as amended and supplemented by the First Supplemental Senior Debt Funding Indenture dated April 26, 2024 (the “Senior Debt Funding Indenture,” and, together with the Capital Securities Indenture, the Subordinated Indenture, the Eligible Liabilities Senior Indenture and the Senior Indenture, the “Indentures”); |
| (d) | a scanned copy of the power of attorney issued on behalf of the Bank by Christian Sewing and James von Moltke, members of the Management Board (Vorstand) of the Bank, on February 27, 2024 (the “Power of Attorney”); and |
| (e) | such other documents as we have deemed necessary to enable us to give this opinion. |
We have relied, as to matters of fact, on certificates of the responsible officers of the Bank and public officials. We have assumed that:
| (i) | the Registration Statement will be executed and filed in the form of the draft reviewed by us and the agreements and Indentures filed as Exhibits to the Registration Statement that have been reviewed by us will, when duly executed by all parties thereto in substantially the form filed as an Exhibit to the Registration Statement, be valid, binding and enforceable under the laws of the State of New York, by which they are expressed to be governed, except that no such assumption is made as to the provisions in (1) the Capital Securities and the Capital Securities Indenture, (2) the provisions in the Subordinated Debt Securities and the Subordinated Indenture, (3) the provisions in the Eligible Liabilities Senior Debt Securities and the Eligible Liabilities Senior Indenture, and (4) the provisions in the Senior Debt Funding Securities and Senor Debt Funding Indenture, in each case, that are stated to be governed by the laws of the Federal Republic of Germany; |
| (ii) | all relevant documents are or will be within the capacity and powers of, and have been or will be validly authorized, executed and delivered by, each party thereto, except that no such assumption is made as to the authorization, execution and delivery of any such document by the Bank, and that there has been no breach of any of the terms thereof; |
| (iii) | the Indentures and the Power of Attorney have not subsequently been amended; |
| (iv) | all signatures on all documents submitted to us are genuine and, where provided in electronic format, have been affixed by the individual whose name appears in the signature, and that copies of all documents submitted to us are complete and conform to the originals; |
| (v) | none of the documents furnished to us has been amended, supplemented or terminated; and |
| (vi) | the issuance of the Shares will be made in accordance with the Articles. |
Based upon the foregoing we are of the opinion that:
| (1) | the Bank is duly organized and validly existing as a stock corporation (Aktiengesellschaft) under the laws of the Federal Republic of Germany and has the corporate power to, and has taken all necessary corporate action to, execute, deliver and file the Registration Statement; |
| (2) | upon (i) the adoption of the appropriate resolutions relating to the increase of the Bank’s share capital and their registration in the Commercial Register, (ii) the receipt by the Bank of the consideration specified in the relevant resolution and (iii) the registration of the execution of the capital increase in respect of the Shares with the Commercial Register (Handelsregister) of the District Court of Frankfurt am Main, Germany, the Shares will have been duly authorized by all necessary corporate action and will be validly issued, fully paid and non-assessable; |
- 2 -
| (3) | if and when the Rights come into existence in accordance with the German Stock Corporation Act (Aktiengesetz) and the Articles, they will constitute valid and legally binding obligations of the Bank; |
| (4) | when the Registration Statement has become effective under the Securities Act, the supplemental indentures setting forth the terms of a series of Capital Securities have been duly authorized, executed and delivered, the terms of the Capital Securities and of their issuance and sale have been duly established in conformity with the Capital Securities Indenture and the relevant supplemental indenture so as not to violate the laws of the State of New York or the Federal Republic of Germany, as the case may be, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank, and the Capital Securities have been duly executed and authenticated in accordance with the Capital Securities Indenture and the relevant supplemental indenture and issued and sold as contemplated in the Registration Statement, (i) the Capital Securities, the Capital Securities Indenture and the relevant supplemental indenture will constitute valid, binding and enforceable agreements of the Bank, insofar as they are stated to be governed by the laws of the Federal Republic of Germany, which, if incurred through a branch office of the Bank, are to be performed through such branch office and which are enforceable in accordance with their respective terms and (ii) 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 and, to the extent expressly stated, the laws of the Federal Republic of Germany, as the case may be, to govern the Capital Securities, the Capital Securities Indenture and the relevant supplemental indenture, and such laws will accordingly govern the question whether the Capital Securities, the Capital Securities Indenture and the relevant supplemental indenture constitute legal, valid and binding obligations; |
| (5) | when the Registration Statement has become effective under the Securities Act, the terms of the Subordinated Debt Securities and of their issuance and sale have been duly established in conformity with the Subordinated Indenture so as not to violate the laws of the State of New York or the Federal Republic of Germany, as the case may be, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank, and the Subordinated Debt Securities have been duly executed and authenticated in accordance with the Subordinated Indenture and issued and sold as contemplated in the Registration Statement, (i) the Subordinated Debt Securities and the Subordinated Indenture will constitute valid, binding and enforceable agreements of the Bank, insofar as they are stated to be governed by the laws of the Federal Republic of Germany, which, if incurred through a branch office of the Bank, are to be performed through such branch office and which are enforceable in accordance with their respective terms and (ii) 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 and, to the extent expressly stated, the laws of the Federal Republic of Germany, as the case may be, to govern the Subordinated Debt Securities and the Subordinated Indenture, and such laws will accordingly govern the question whether the Subordinated Debt Securities and the Subordinated Indenture constitute legal, valid and binding obligations; |
| (6) | when the Registration Statement has become effective under the Securities Act, the terms of the Eligible Liabilities Senior Debt Securities and of their issuance and sale have been duly established in conformity with the Eligible Liabilities Senior Indenture so as not to violate the laws of the State of New York law or the Federal Republic of Germany, as the case may be, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank, and the Eligible Liabilities Senior Debt Securities have been duly executed and authenticated in accordance with the Eligible Liabilities Senior Indenture and issued and sold as contemplated in the Registration Statement, (i) the Eligible Liabilities Senior Debt Securities and the Eligible Liabilities Senior Indenture will constitute valid, binding and enforceable agreements of the Bank, insofar as they are stated to be governed by the laws of the Federal Republic of Germany, which, if incurred through a branch office of the Bank, are to be performed through such branch office and which are enforceable in accordance with their respective terms and (ii) the courts in |
- 3 -
| Germany (assuming they accept jurisdiction) would observe and give effect to the choice of the laws of of the State of New York and, to the extent expressly stated, the laws of the Federal Republic of Germany, as the case may be, to govern the Eligible Liabilities Senior Debt Securities and the Eligible Liabilities Indenture, and such laws will accordingly govern the question whether the Eligible Liabilities Senior Debt Securities and the Eligible Liabilities Indenture constitute legal, valid and binding obligations; |
| (7) | when the Registration Statement has become effective under the Securities Act, the terms of the Senior Debt Securities and of their issuance and sale have been duly established in conformity with the Senior Indenture so as not to violate the laws of the State of New York or the Federal Republic of Germany, as the case may be, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank, and the Senior Debt Securities have been duly executed and authenticated in accordance with the Senior Indenture and issued and sold as contemplated in the Registration Statement, 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 to govern the Senior Debt Securities and the Senior Indenture, and such laws will accordingly govern the question whether the Senior Debt Securities and the Senior Indenture constitute legal, valid and binding obligations; |
| (8) | when the Registration Statement has become effective under the Securities Act, the terms of the Senior Debt Funding Securities and of their issuance and sale have been duly established in conformity with the Senior Debt Funding Indenture so as not to violate the laws of the State of New York law or the Federal Republic of Germany, as the case may be, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank, and the Senior Debt Funding Securities have been duly executed and authenticated in accordance with the Senior Debt Funding Indenture and issued and sold as contemplated in the Registration Statement, 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 and, to the extent expressly stated, the laws of the Federal Republic of Germany, as the case may be, to govern the Senior Debt Funding Securities and the Senior Debt Funding Indenture, and such laws will accordingly govern the question whether the Senior Debt Funding Securities and the Senior Debt Funding Indenture constitute legal, valid and binding obligations; |
| (9) | when the Registration Statement has become effective under the Securities Act, the warrant agreements described in the Registration Statement under which Warrants are to be issued have been duly authorized, executed and delivered, the terms of the Warrants and of their issuance and sale have been duly established in conformity with the respective warrant agreement relating to each series of the Warrants so as not to violate the laws of the State of New York or the Federal Republic of Germany, as the case may be, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank, and the Warrants have been duly executed and authenticated in accordance with the respective warrant agreement and issued and sold as contemplated in the Registration Statement, 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 to govern the Warrants and the warrant agreements, and such laws will accordingly govern the question whether the Warrants and the warrant agreements constitute legal, valid and binding obligations; |
| (10) | when the Registration Statement has become effective under the Securities Act, the purchase contracts agreements described in the Registration Statement under which Purchase Contracts are to be issued have been duly authorized, executed and delivered, the terms of the Purchase Contracts and of their issuance and sale have been duly established in conformity with the respective purchase contract agreement relating to each series of the Purchase Contracts so as not to violate the laws of the State of New York law or the Federal Republic of Germany, as the case may be, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction |
- 4 -
| over the Bank, and the Purchase Contracts have been duly executed and authenticated in accordance with the respective purchase contract and issued and sold as contemplated in the Registration Statement, 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 to govern the Purchase Contracts and the purchase contract agreements, and such laws will accordingly govern the question whether the Purchase Contracts and the purchase contract agreements constitute legal, valid and binding obligations; |
| (11) | when the Registration Statement has become effective under the Securities Act, the unit agreements described in the Registration Statement under which Units are to be issued have been duly authorized, executed and delivered, the terms of the Units and of their issuance and sale have been duly established in conformity with the respective unit agreement relating to each series of the Units so as not to violate the laws of the State of New York or the Federal Republic of Germany, as the case may be, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank, and the Units have been duly executed and authenticated in accordance with the respective unit agreement and issued and sold as contemplated in the Registration Statement, 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 to govern the Units and the unit agreements, and such laws will accordingly govern the question whether the Units and the unit agreements constitute legal, valid and binding obligations; |
This opinion is subject to the following qualifications:
| (A) | Enforcement of the Securities 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) | Pursuant to Section 46f(5)-(9) of the German Banking Act (Kreditwesengesetz), obligations of the Bank under instruments of indebtedness issued by it that constitute “debt instruments” (Schuldtitel) within the meaning of Section 46f(6) sentence 1 of the Germany Banking Act (including the senior non-preferred obligations under any debt instruments that were issued by the Bank before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act) will rank, in an insolvency proceeding affecting, or resolution measures involving, the Bank, junior to all other outstanding unsecured unsubordinated obligations of the Bank (including eligible liabilities within the meaning of Article 72b(2) of Regulation (EU) No 575/2013 of the European Parliament and of the Council where point (d) of such Article does not apply), but in priority to any further subordinated liabilities of the Bank (whether by operation of law or contractually). |
| (D) | Enforcement of rights may be limited by statutes of limitation or lapse of time. |
| (E) | 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. |
| (F) | 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. |
| (G) | We do not express an opinion as to any rights and obligations the Bank may have or appears to have against itself. |
- 5 -
We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement and to the use of our name in the prospectus included in the Registration Statement under the heading “Legal Matters”. In giving such consent we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
This opinion is furnished by us, as Counsel of the Bank, in connection with the filing of the Registration Statement 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, except (i) as provided in the immediately preceding paragraph and (ii) that Cleary Gottlieb Steen & Hamilton LLP may rely upon it. 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 the Federal Republic of Germany.
Very truly yours,
| /s/ Dr. Mathias Otto | /s/ Patricia Vornhagen | |||
| Dr. Mathias Otto General Counsel of Infrastructure and Regulatory Advice of Deutsche Bank AG |
Patricia Vornhagen Senior Counsel of Deutsche Bank AG | |||
- 6 -
Exhibit 5.3
|
+1 212 450 4000 davispolk.com |
Davis Polk & Wardwell LLP 450 Lexington Avenue |
April 26, 2024
Deutsche Bank AG
Taunusanlage 12
60325 Frankfurt am Main
Germany
Ladies and Gentlemen:
Deutsche Bank Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany (the “Bank”), has filed with the Securities and Exchange Commission (the “Commission”) a Registration Statement on Form F-3 on March 28, 2024 and a Pre-Effective Amendment No. 1 thereto dated April 26, 2024 (together, the “Registration Statement”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), among other securities, (i) the Bank’s Senior Notes, Series A (the “Senior Notes”), to be issued from time to time pursuant to the Amended and Restated Senior Indenture, dated as of August 3, 2021, as amended and supplemented by the First Supplemental Senior Indenture dated as of April 26, 2024 (as so amended and supplemented, the “Senior Indenture”), among the Bank, Delaware Trust Company, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, authenticating agent, issuing agent and registrar, (ii) the Bank’s Senior Debt Funding Notes, Series E (the “Senior Debt Funding Notes”), to be issued from time to time pursuant to the Amended and Restated Senior Debt Funding Indenture dated August 3, 2021, as amended and supplemented by the First Supplemental Senior Debt Funding Indenture dated as of April 26, 2024 (as so amended and supplemented, the “Senior Debt Funding Indenture”), among the Bank, Delaware Trust Company, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, issuing agent, authenticating agent and registrar and (iii) the Bank’s Eligible Liabilities Senior Notes, Series D (the “EL Senior Notes” together with the Senior Notes and the Senior Debt Funding Notes, the “Notes”), to be issued from time to time pursuant to the Amended and Restated Eligible Liabilities Senior Indenture, dated as of August 3, 2021, as amended and supplemented by the First Supplemental Eligible Liabilities Senior Indenture dated as of April 26, 2024 (as so amended and supplemented, the “Eligible Liabilities Senior Indenture” and together with the Senior Indenture and the Senior Debt Funding Indenture, the “Indentures”), among the Bank, The Bank of New York Mellon, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, authenticating agent, issuing agent and registrar.
We have been appointed by you as your special United States products counsel, and we have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
In rendering the opinions expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all documents filed as exhibits to the Registration Statement that have not been executed will conform to the forms thereof, (iv) all signatures on all documents that we reviewed are genuine, (v) all natural persons executing documents had and have the legal capacity to do so, (vi) all statements in certificates of public officials and officers of the Bank that we reviewed were and are accurate and (vii) all representations made by the Bank as to matters of fact in the documents that we reviewed were and are accurate.
|
|
Deutsche Bank AG |
Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, we advise you that, in our opinion, when (A) the specific terms of a particular series of Notes have been duly authorized and established in accordance with the applicable Indenture; (B) in the case of Notes represented by a master global note, (i) such Notes have been duly authorized, executed and authenticated in accordance with the applicable Indenture, (ii) such Notes have been duly issued in accordance with the applicable Indenture, (iii) the trustee and/or a duly appointed paying agent has made, in accordance with the instructions of the Bank, the appropriate entries or notations in its records relating to the master global note that represents such Notes and (iv) such Notes have been delivered in accordance with the applicable underwriting or other distribution agreement against payment therefor; and (C) in the case of Notes represented by a global note, such Notes have been duly authorized, executed, authenticated, issued and delivered in accordance with the applicable Indenture and the applicable underwriting or other distribution agreement against payment therefor, such Notes will constitute valid and binding obligations of the Bank, enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith) and possible judicial or regulatory actions or applications giving effect to governmental actions or foreign laws affecting creditors’ rights, provided that we express no opinion as to (i) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (ii) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of the stated principal amount upon acceleration of the Notes to the extent determined to constitute unearned interest.
We express no opinion relating to any provision of the Senior Debt Funding Indenture, the Senior Debt Funding Notes, the Eligible Liability Senior Indenture, and the EL Senior Notes, as the case may be, relating to their ranking and their status to the extent it purports to be governed by the laws of Germany (including, in relation to such provisions, any determination of whether a Resolution Measure (as defined in the Indentures) has been imposed on the Bank).
In connection with the opinion expressed above, we have assumed that at or prior to the time of the delivery of any Notes, (i) pursuant to the authority granted by the Bank’s Management Board, duly authorized officers of the Bank shall have established the terms of the Notes and duly authorized the issuance, execution, sale and delivery of the Notes, in each case as a matter of German law, and such authorization shall not have been modified or rescinded; (ii) the Bank is, and will remain, validly existing as a stock corporation in good standing under the laws of the Federal Republic of Germany; (iii) the Registration Statement has become effective and the effectiveness of the Registration Statement shall not have been terminated or rescinded; (iv) the Indentures and the Notes have been duly authorized, executed, authenticated (if applicable) and delivered by, and are each valid, binding and enforceable agreements of, each party thereto (other than as expressly covered above in respect of the Bank); (v) the Notes will be executed in substantially the form reviewed by us; (vi) the execution and delivery by each such party to each document to which it is a party, and the performance by each such party of all of its obligations under each document to which it is a party, (x) do not contravene, or constitute a default under, the articles or certificate of incorporation or bylaws or other constitutive documents of such party, (y) require no action by or in respect of, or filing with, any governmental body, agency or official and (z) do not and will not contravene, or constitute a default under, any provision of applicable law or public policy or regulation (other than any such law or regulation of the State of New York), or any agreement, judgment, injunction, order, decree or other instrument binding on any such party; and (vii) there shall not have occurred any change in law affecting the validity or enforceability of such Notes. We have also assumed that none of the terms of any Note to be established subsequent to the date hereof, nor the issuance and delivery of such Note, nor the compliance by the Bank with the terms of such Note will violate any applicable law or public policy or will result in a violation of any provision of any instrument or agreement then binding upon the Bank, or any restriction imposed by any court or other governmental body, agency or official having jurisdiction over the Bank.
| April 26, 2024 | 2 |
|
|
Deutsche Bank AG |
In connection with our opinion above, we note that, as of the date of this opinion, a judgment for money in an action based on Notes payable in foreign currencies in a federal or state court in the United States ordinarily would be enforced in the United States only in United States dollars. The date used to determine the rate of conversion of the foreign currency in which a particular Note is payable into United States dollars will depend upon various factors, including which court renders the judgment. However, if a judgment for money in an action based on the Notes were entered by a New York court, such court would enter the judgment in the foreign currency. In addition, we express no opinion as to any provision in any Indenture that (i) subjects the Bank to any claim for deficiency resulting from a judgment being rendered in a currency other than the currency called for in such Indenture, or (ii) purports to constitute a waiver by the Bank of any right to pay any amount under such Indenture in a currency other than that in which such amount is expressed to be payable.
We express no opinion as to provisions in the Indentures which purport to constitute waivers of objections to venue, or claims that a particular jurisdiction is an inconvenient forum.
We are members of the Bar of the State of New York, and the foregoing opinion is limited to the laws of the State of New York. Insofar as the foregoing opinion and the opinions expressed in the paragraphs quoted below involve matters governed by German law, we have relied, without independent inquiry or investigation, on the opinion of Group Legal Services of Deutsche Bank AG, dated April 26, 2024, attached as Exhibit A hereto.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement referred to above and further consent to the reference of our name under the caption “Legal Matters” in the prospectus, which is a part of the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
In addition, if a pricing supplement relating to the offer and sale of any particular Note or Notes is prepared and filed by the Bank with the Commission on this date or a future date and the pricing supplement contains a reference to us and our opinion substantially in the form set forth below, this consent shall apply to the reference to us and our opinion in substantially such form:
“In the opinion of Davis Polk & Wardwell LLP, as special United States products counsel to the Bank, [when the notes offered by this pricing supplement have been executed and issued by the Bank and authenticated by the authenticating agent, acting on behalf of the trustee pursuant to the Indenture, and delivered against payment as contemplated herein] [when the notes offered by this pricing supplement have been issued by the Bank pursuant to the Indenture, the trustee and/or paying agent has made, in accordance with the instructions from the Bank, the appropriate entries or notations in its records relating to the master global note that represents such notes (the “master note”), and such notes have been delivered against payment as contemplated herein], such notes will be valid and binding obligations of the Bank, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith) and possible judicial or regulatory actions or applications giving effect to governmental actions or foreign laws affecting creditors’ rights, provided that such counsel expresses no opinion as to [(i)] the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above [and (ii) the validity, legally binding effect or
| April 26, 2024 | 3 |
|
|
Deutsche Bank AG |
enforceability of any provision that permits holders to collect any portion of the stated principal amount upon acceleration of the notes to the extent determined to constitute unearned interest.] This opinion is given as of the date hereof and is limited to the laws of the State of New York. Insofar as this opinion involves matters governed by German law, Davis Polk & Wardwell LLP has relied, without independent investigation, on the opinion of Group Legal Services of Deutsche Bank AG, dated April 26, 2024, filed as an exhibit to the opinion of Davis Polk & Wardwell LLP, and this opinion is subject to the same assumptions, qualifications and limitations with respect to such matters as are contained in such opinion of Group Legal Services of Deutsche Bank AG. In addition, this opinion is subject to customary assumptions about the trustee’s authorization, execution and delivery of the Indenture and the authentication of the [notes][master note] by the authenticating agent and the validity, binding nature and enforceability of the Indenture with respect to the trustee, all as stated in the opinion of Davis Polk & Wardwell LLP dated April 26, 2024, which has been filed as an exhibit to the Registration Statement referred to above. [This opinion is also subject to the discussion, as stated in such opinion, of the enforcement of notes denominated in a foreign currency.]”
Very truly yours,
/s/ Davis Polk & Wardwell LLP
| April 26, 2024 | 4 |
Exhibit A
| Deutsche Bank |
|
Deutsche Bank Aktiengesellschaft
Taunusanlage 12
60325 Frankfurt am Main
Germany
April 26, 2024
Deutsche Bank AG Senior Notes, Series A, Senior Debt Funding Notes, Series E, and Eligible Liabilities Senior Notes, Series D
Ladies and Gentlemen:
In our capacity as Counsel of Deutsche Bank Aktiengesellschaft (the “Bank”), we have advised the Bank as to matters of German law in connection with the proposed issuance, offering and sale by the Bank from time to time of (i) its senior, unsecured Senior Notes, Series A (the “Senior Notes”), to be issued under the Amended and Restated Senior Indenture, dated as of August 3, 2021, as amended and supplemented by the First Supplemental Senior Indenture dated as of April 26, 2024 (as so amended and supplemented, the “Senior Indenture”), among the Bank, as issuer, Delaware Trust Company, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, authenticating agent, issuing agent and registrar, (ii) its Senior Debt Funding Notes, Series E (the “Senior Debt Funding Notes”) to be issued under the Amended and Restated Senior Debt Funding Indenture, dated as of August 3, 2021, as amended and supplemented by the First Supplemental Senior Debt Funding Indenture dated as of April 26, 2024 (as so amended and supplemented, the “Senior Debt Funding Indenture”), among the Bank, as issuer, Delaware Trust Company, as trustee (the “Funding Indenture Trustee”), and Deutsche Bank Trust Company Americas, as paying agent, issuing agent, authenticating agent and registrar and (iii) its Eligible Liabilities Senior Notes, Series D (the “EL Senior Notes” together with the Senior Notes and the Senior Debt Funding Notes, the “Notes”), to be issued from time to time under the Amended and Restated Eligible Liabilities Senior Indenture, dated as of August 3, 2021, as amended and supplemented by the First Supplemental Eligible Liabilities Senior Indenture dated as of April 26, 2024 (as so amended and supplemented, the “Eligible Liabilities Senior Indenture”), among the Bank, as issuer, The Bank of New York Mellon, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, authenticating agent, issuing agent and registrar, pursuant to a Registration Statement on Form F-3 filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on March 28, 2024 and a Pre-Effective Amendment No. 1 thereto filed with the Commission on April 26, 2024 (together, the “Registration Statement”), registering the offer and sale of the Notes.
The Senior Indenture, the Eligible Liabilities Senior Indenture and the Senior Debt Funding Indenture (together, the “Indentures”), the Master Notes (as defined below) and the Notes are referred to herein as the “Transaction Documents.”
This opinion is confined to and given on the basis of German law as it exists at the date hereof. We have made no investigation of the laws of 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 affect this opinion.
For the purpose of this opinion we have examined the following documents:
| (a) | a draft of the Registration Statement; |
| (b) | the Articles of Association (Satzung) of the Bank as currently in force; |
| Chairman of the Supervisory Board: Alexander R. Wynaendts. Management Board: Christian Sewing (Chairman), James von Moltke, Fabrizio Campelli, Bernd Leukert, Alexander von zur Mühlen, Claudio de Sanctis, Rebecca Short, Stefan Simon, Olivier Vigneron. Deutsche Bank Aktiengesellschaft domiciled in Frankfurt am Main; Local Court of Frankfurt am Main, HRB No 30 000; VAT ID No DE114103379; www.db.com |
| (c) | a scanned copy of the executed Senior Indenture; |
| (d) | a scanned copy of the executed Senior Debt Funding Indenture; |
| (e) | a scanned copy of the executed Eligible Liabilities Senior Indenture; |
| (f) | scanned copies of the executed master note with respect to Senior Notes and the executed master note with respect to Senior Debt Funding Notes (together, the “Master Notes”); |
| (g) | the form of fixed rate EL Senior Notes and the form of floating rate EL Senior Notes; |
| (h) | a scanned copy of the powers of attorney issued on behalf of the Bank by Christian Sewing and James von Moltke, members of the Management Board (Vorstand) of the Bank, on each of July 23, 2021 and February 27, 2024 (the “2024 POA”), respectively (together, the “Powers of Attorney”); and |
| (i) | 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 Registration Statement will be executed and filed in the form of the draft reviewed by us; |
| (ii) | 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; |
| (iii) | 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, except with respect any provision of the Senior Debt Funding Indenture, the Senior Debt Funding Notes, the Eligible Liability Senior Indenture, and the EL Senior Notes, as the case may be, relating to their ranking and their status which are expressed to be governed by the laws of Germany including, in relation to such provisions, any determination of whether a Resolution Measure (as defined in the Indentures) has been imposed on the Bank (collectively, the “German Law Provisions”), except that no such assumption is made as to (x) the authorization, execution and delivery of any such agreement or instrument by the Bank and (y) the German Law Provisions; |
| (iv) | the Notes will have been offered and sold as contemplated by the Registration Statement; |
| (v) | all signatures on all documents submitted to us are genuine and that copies of all documents submitted to us are complete and conform to the originals; and |
| (vi) | the Indentures and the 2024 POA have not subsequently been amended, supplemented or terminated. |
Based upon the foregoing we are of the opinion that:
| (1) | the Bank is duly organized and validly existing as a stock corporation (Aktiengesellschaft) under the laws of the Federal Republic of Germany and has the corporate power to, and has taken all necessary corporate action to, execute, deliver and file the Registration Statement; |
| (2) | the Bank has the 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) | each of the Indentures and the Master Notes has been validly executed on behalf of the Bank; |
| (5) | each of the Indentures constitutes a valid and binding agreement of the Bank, which, with respect to Notes incurred through a branch office of the Bank, is to be performed through such branch office; |
| (6) | each of the form of fixed rate EL Senior Notes and the form of floating rate EL Senior Notes has been duly authorized and established by the Bank; |
| (7) | the terms of a particular issuance of Notes will be, when established by an Issuer Order executed by two persons named as attorneys-in-fact of the Bank in the 2024 POA, duly authorized and established by the Bank; |
| (8) | when Notes of a particular issuance have been executed by two persons named as attorneys-in-fact of the Bank in the 2024 POA (or in the case of a Master Note, when an Issuer Order with respect to the Notes of a particular issuance is executed by two persons named as attorneys-in-fact of the Bank in the 2024 POA and delivered to the the relevant trustee), such Notes will have been validly executed on behalf of the Bank; |
| (9) | when (i) the terms of the Notes and of their issuance and sale have been duly established in conformity with the applicable Indenture so as not to violate the laws of the State of New York or the Federal Republic of Germany, as the case may be, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank, (ii) in the case of a Master Note, the Trustee and/or a duly appointed paying agent has made, in accordance with the instructions of the Bank, the appropriate entries or notations in its records relating to the Master Note that represents such Notes, and (iii) the Notes have been duly executed and delivered by the Bank and authenticated in accordance with the applicable Indenture and issued and sold as contemplated by the Registration Statement, the Notes will constitute valid and binding obligations of the Bank, which, if incurred through a branch office of the Bank, are to be performed through such branch office; and |
| (10) | the competent courts in Germany (assuming they accept jurisdiction) would observe and give effect to the choice of the laws of the State of New York or the Federal Republic of Germany, as the case may be, as governing the Indentures and the Notes. |
This opinion is subject to the following qualifications:
| (A) | Enforcement of the Transaction Documents may be limited by bankruptcy, insolvency, liquidation, reorganization, limitation and other laws of general application, or by governmental acts, relating to or affecting the rights of creditors; |
| (B) | Enforcement of any agreement, instrument or document may be limited by any resolution measures exercised by the competent resolution authority under the relevant resolution laws and regulations applicable to the Bank; the resolution authority may convert to equity or reduce the principal amount of liabilities, transfer assets, rights and liabilities and take other resolution measures which relate to or affect the rights of creditors. |
3
| (C) | Pursuant to Section 46f(5)-(9) of the German Banking Act (Kreditwesengesetz), obligations of the Bank under instruments of indebtedness issued by it that constitute “debt instruments” (Schuldtitel) within the meaning of Section 46f(6) sentence 1 of the Germany Banking Act (including the senior non-preferred obligations under any debt instruments that were issued by the Bank before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act will rank, in an insolvency proceeding affecting, or resolution measures involving, the Bank, junior to all other outstanding unsecured unsubordinated obligations of the Bank (including eligible liabilities within the meaning of Article 72b(2) of Regulation (EU) No 575/2013 of the European Parliament and of the Council where point (d) of such Article does not apply), but in priority to any further subordinated liabilities of the Bank (whether by operation of law or contractually). |
| (D) | Enforcement of rights may be limited by statutes of limitation or lapse of time. |
| (E) | 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. |
| (F) | 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. |
| (G) | We do not express an opinion as to any rights and obligations the Bank may have or appears to have against itself. |
We are furnishing this opinion solely for your benefit, except that Davis Polk & Wardwell LLP may rely upon it, and this opinion is not to be used, circulated, quoted or otherwise referred to for any other purpose without our prior written approval in each instance. We assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein.
This opinion shall be governed by and construed in accordance with the laws of Germany.
Very truly yours,
| /s/ Dr. Mathias Otto |
/s/ Patricia Vornhagen |
|||||
| Dr. Mathias Otto General Counsel of
|
Patricia Vornhagen Senior Counsel of Deutsche Bank AG |
4
Exhibit 23.7
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Independent Registered Public Accounting Firm” in this Amendment No. 1 to the Registration Statement (Form F-3 No. 333-278331) and related Prospectus of Deutsche Bank Aktiengesellschaft for the registration of Ordinary shares, Tradable Subscription Rights to Subscribe for Ordinary Shares, Capital securities, Debt securities, Warrants, Purchase contracts and Units and to the incorporation by reference therein of our reports dated March 11, 2024, with respect to the consolidated financial statements of Deutsche Bank Aktiengesellschaft, and the effectiveness of internal control over financial reporting of Deutsche Bank Aktiengesellschaft, included in its Annual Report (Form 20-F) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.
/s/ EY GmbH & Co. KG Wirtschaftsprüfungsgesellschaft
Eschborn/Frankfurt am Main, Germany
April 26, 2024