Amended & Restated Trust Agmnt of DB CC Trust II



 





Exhibit 4.3




 





AMENDED AND RESTATED




TRUST AGREEMENT




OF




DEUTSCHE BANK CONTINGENT CAPITAL TRUST II




Dated as of May 23, 2007




 





 









 





TABLE OF CONTENTS





	 	 	 	 	 
	 	 	Page	 
	 
	ARTICLE 1    INTERPRETATIONS AND DEFINITIONS
	 	 	2	 
	 
	Section 1.01. Definitions
	 	 	2	 
	 
	Section 1.02. Other Definitional Provisions
	 	 	13	 
	 
	ARTICLE 2    TRUST INDENTURE ACT
	 	 	14	 
	 
	Section 2.01. Trust Indenture Act; Application
	 	 	14	 
	 
	Section 2.02. Lists of Holders of the Trust Preferred Securities
	 	 	14	 
	 
	Section 2.03. Reports by the Trustee
	 	 	14	 
	 
	Section 2.04. Periodic Reports to the Trustee
	 	 	15	 
	 
	Section 2.05. Evidence of Compliance with Conditions Precedent
	 	 	15	 
	 
	Section 2.06. Enforcement Event; Waiver
	 	 	15	 
	 
	Section 2.07. Notice of Enforcement Event
	 	 	16	 
	 
	ARTICLE 3    ORGANIZATION
	 	 	16	 
	 
	Section 3.01. Name
	 	 	16	 
	 
	Section 3.02. Office
	 	 	16	 
	 
	Section 3.03. Purpose
	 	 	16	 
	 
	Section 3.04. Authority
	 	 	16	 
	 
	Section 3.05. Title to Property of the Trust
	 	 	17	 
	 
	Section 3.06. Powers and Duties of the Regular Trustees
	 	 	17	 
	 
	Section 3.07. Prohibition of Actions by the Trust and the Trustees
	 	 	20	 
	 
	Section 3.08. Powers and Duties of the Property Trustee
	 	 	21	 
	 
	Section 3.09. Certain Duties and Responsibilities of the Property Trustee
	 	 	23	 
	 
	Section 3.10. Certain Rights of Property Trustee
	 	 	24	 
	 
	Section 3.11. Delaware Trustee
	 	 	26	 
	 
	Section 3.12. Execution of Documents
	 	 	27	 
	 
	Section 3.13. Not Responsible for Recitals or Issuance of Trust Securities
	 	 	27	 
	 
	Section 3.14. Duration of Trust
	 	 	27	 
	 
	Section 3.15. Mergers
	 	 	27	 
	 
	ARTICLE 4    THE GUARANTOR
	 	 	29	 
	 
	Section 4.01. Responsibilities of the Guarantor
	 	 	29	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	 
	Section 4.02. Indemnification and Expenses of the Trustees
	 	 	29	 
	 
	Section 4.03. Covenants of the Guarantor
	 	 	29	 
	 
	ARTICLE 5    THE TRUST COMMON SECURITYHOLDER
	 	 	30	 
	 
	Section 5.01. Purchase of Trust Common Security
	 	 	30	 
	 
	ARTICLE 6    TRUSTEES
	 	 	30	 
	 
	Section 6.01. Number of Trustees
	 	 	30	 
	 
	Section 6.02. Delaware Trustee
	 	 	31	 
	 
	Section 6.03. Property Trustee; Eligibility
	 	 	31	 
	 
	Section 6.04. Qualifications of Regular Trustees and Delaware Trustee Generally
	 	 	32	 
	 
	Section 6.05. Regular Trustees
	 	 	32	 
	 
	Section 6.06. Appointment, Removal and Resignation of Trustees
	 	 	32	 
	 
	Section 6.07. Vacancies among Trustees
	 	 	34	 
	 
	Section 6.08. Effect of Vacancies
	 	 	34	 
	 
	Section 6.09. Meetings
	 	 	35	 
	 
	Section 6.10. Delegation of Power
	 	 	35	 
	 
	Section 6.11. Merger, Conversion, Consolidation or Succession to Business
	 	 	35	 
	 
	ARTICLE 7    CAPITAL PAYMENTS
	 	 	36	 
	 
	Section 7.01. Capital Payments Prior to the Tier 1 Qualification Date
	 	 	36	 
	 
	Section 7.02. Capital Payments As of and After the Tier 1 Qualification Date
	 	 	38	 
	 
	ARTICLE 8    ISSUANCE OF TRUST SECURITIES
	 	 	40	 
	 
	Section 8.01. Designation and General Provisions Regarding Trust Securities
	 	 	40	 
	 
	Section 8.02. Priority of Payments on Trust Securities
	 	 	42	 
	 
	Section 8.03. Redemption of Trust Securities
	 	 	42	 
	 
	Section 8.04. Redemption Procedures
	 	 	44	 
	 
	Section 8.05. Voting Rights of Trust Preferred Securities
	 	 	45	 
	 
	Section 8.06. Voting Rights of the Trust Common Security
	 	 	46	 
	 
	Section 8.07. Paying Agent
	 	 	47	 
	 
	Section 8.08. Listing
	 	 	48	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	 
	Section 8.09. Acceptance of Guarantees and Agreements
	 	 	48	 
	 
	ARTICLE 9    TERMINATION AND LIQUIDATION OF THE TRUST
	 	 	48	 
	 
	Section 9.01. Dissolution of Trust
	 	 	48	 
	 
	Section 9.02. Liquidation Distribution upon Termination and Dissolution of the Trust
	 	 	49	 
	 
	ARTICLE 10    TRANSFER OF INTERESTS
	 	 	49	 
	 
	Section 10.01. Form and Denomination of Trust Preferred Securities
	 	 	49	 
	 
	Section 10.02. Deemed Security Holders
	 	 	50	 
	 
	Section 10.03. Global Trust Preferred Certificates
	 	 	50	 
	 
	Section 10.04. Notices to Clearing Agency
	 	 	51	 
	 
	Section 10.05. Appointment of Successor Clearing Agency
	 	 	51	 
	 
	Section 10.06. Definitive Trust Preferred Certificates
	 	 	51	 
	 
	Section 10.07. Registration of Trust Securities
	 	 	52	 
	 
	Section 10.08. Transfer and Exchanges of Trust Securities
	 	 	52	 
	 
	Section 10.09. Lost or Stolen Trust Securities, Etc.
	 	 	54	 
	 
	ARTICLE 11    LIMITATION OF LIABILITY OF HOLDERS OF TRUST SECURITIES, TRUSTEES OR OTHERS
	 	 	54	 
	 
	Section 11.01. Liability
	 	 	54	 
	 
	Section 11.02. Exculpation
	 	 	55	 
	 
	Section 11.03. Fiduciary Duty
	 	 	55	 
	 
	Section 11.04. Indemnification
	 	 	56	 
	 
	Section 11.05. Outside Businesses
	 	 	59	 
	 
	ARTICLE 12    ACCOUNTING
	 	 	59	 
	 
	Section 12.01. Fiscal Year
	 	 	59	 
	 
	Section 12.02. Certain Accounting and Reporting Matters
	 	 	60	 
	 
	Section 12.03. Banking
	 	 	60	 
	 
	ARTICLE 13    AMENDMENTS AND MEETINGS
	 	 	60	 
	 
	Section 13.01. Amendments
	 	 	60	 
	 
	Section 13.02. Meetings of the Holders of Trust Securities; Action by Written Consent
	 	 	63	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	 
	ARTICLE 14    REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
	 	 	64	 
	 
	Section 14.01. Representations and Warranties of Property Trustee
	 	 	64	 
	 
	Section 14.02. Representations and Warranties of Delaware Trustee
	 	 	64	 
	 
	ARTICLE 15    MISCELLANEOUS
	 	 	65	 
	 
	Section 15.01. Notices
	 	 	65	 
	 
	Section 15.02. Governing Law
	 	 	67	 
	 
	Section 15.03. Intention of the Parties
	 	 	67	 
	 
	Section 15.04. Successors and Assigns
	 	 	67	 
	 
	Section 15.05. Partial Enforceability
	 	 	67	 
	 
	Section 15.06. Counterparts
	 	 	67	 






iv









 






CROSS-REFERENCES TABLE1




	 	 	 
	Section of Trust Indenture Act	 	Section of
	of 1939, as amended	 	Agreement
	 
	310(a)

	 	Section 6.03(a)
	310(b)

	 	Section 6.03(c), (d)
	310(c)

	 	Inapplicable
	311(a)

	 	Section 2.02(b)
	311(b)

	 	Section 2.02(b)
	311(c)

	 	Inapplicable
	312(a)

	 	Section 2.02(a)
	312(b)

	 	Section 2.02(b)
	313

	 	Section 2.03
	314(a)

	 	Section 2.04
	314(b)

	 	Inapplicable
	314(c)

	 	Section 2.05
	314(d)

	 	Inapplicable
	314(f)

	 	Inapplicable
	315(a)

	 	Section 3.09(a), (c)
	315(b)

	 	Section 2.07
	315(c)

	 	Section 3.09(a)
	315(d)

	 	Section 3.09(c)
	316(a)

	 	Section 2.06
	317(b)

	 	Section 8.07








 




			
	1	 	This Cross-Reference Table does not
constitute part of the Agreement and shall not affect the interpretation of any
of its terms or provisions.





 









 





AMENDED AND RESTATED

TRUST AGREEMENT

OF

DEUTSCHE BANK CONTINGENT CAPITAL TRUST II




          AMENDED AND RESTATED TRUST AGREEMENT (the “Agreement”) dated and effective as of May 23, 2007,
by the Trustees (as defined herein), the Sponsor (as defined herein), the Bank (as defined herein)
and the Holders (as defined herein), from time to time, of undivided beneficial interests in the
Trust Estate (as defined herein) of the Trust (as defined herein) to be issued pursuant to this
Agreement;




          WHEREAS, the Trustees and the Sponsor established Deutsche Bank Contingent Capital Trust II
(the “Trust”) as a statutory trust formed under the Delaware Statutory Trust Act (as defined
herein) pursuant to a trust agreement, dated as of May 10, 2007 (the “Initial Trust Agreement”),
and a Certificate of Trust filed with the Secretary of State of the State of Delaware on May 16,
2007 (the “Certificate of Trust”);




          WHEREAS, the Trustees and the Sponsor wish to continue the Trust and to amend and restate in
its entirety the Initial Trust Agreement; and




          WHEREAS, the Trustees and the Sponsor wish to operate the Trust for the sole purpose of
issuing and selling certain securities representing undivided beneficial interests in the Trust
Estate of the Trust, guaranteed on a subordinated basis by the Bank, and investing the proceeds
thereof in the Class B Preferred Securities (as defined herein);




          NOW, THEREFORE, it being the intention of the parties hereto that this Agreement constitute
the governing instrument of the Trust and in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, each party hereto agrees to amend and restate the Initial Trust Agreement
for the benefit of the other party and for the benefit of the Holders hereby as follows:




ARTICLE 1

INTERPRETATIONS AND DEFINITIONS




          Section 1.01. Definitions. Unless the context otherwise requires:





     (a) capitalized terms used in this Agreement but not defined in the preamble above have
the respective meanings assigned to them in this Section 1.01;




     (b) a term defined anywhere in this Agreement (i) has the same meaning throughout and
(ii) shall have the defined meaning when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein;




     (c) all references to “the Agreement” or “this Agreement” are to this Agreement as
modified, supplemented or amended from time to time;



2









 






     (d) a term defined in the Trust Indenture Act shall have the same meaning when used in
this Agreement unless otherwise defined in this Agreement or unless the context otherwise
requires; and




     (e) a term used in this Agreement and not otherwise defined herein shall have the
meaning ascribed to such term in the LLC Agreement.



          “1940 Act” means the U.S. Investment Company Act of 1940, as amended from time to time, or any
successor legislation.




          “Additional Amounts” has the meaning set forth in Section Section 7.02(g) hereof.




          “Administrative Action” means any judicial decision, official administrative pronouncement,
published or private ruling, regulatory procedure, notice or announcement (including any notice or
announcement of intent to adopt such procedures or regulations) by any legislative body, court,
governmental authority or regulatory body.




          “Affiliate” means, with respect to any specified Person, any other Person that directly or
indirectly controls, is controlled by, or is under common control with such specified Person. The
terms “controlling”, “controlled by” and “under common control” mean the possession, direct or
indirect, of the power to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting shares, by contract or otherwise.




          “Agency Agreement” has the meaning set forth in Section 8.01(c) hereof.




          “Applicable Procedures” means, with respect to any transfer or transaction involving a Global
Trust Preferred Certificate, the rules and procedures of the Clearing Agency for such Global Trust
Preferred Certificate, in each case to the extent applicable to such transaction and as in effect
from time to time.




          “Arrears of Payments” means Capital Payments, the payment of which has, in accordance with the
deferral provisions of the Trust Preferred Securities and the Class B Preferred Securities, as the
case may be, been deferred and which thereupon constitute cumulative arrears of Capital Payments.




          “Asset Property Account” has the meaning set forth in Section 3.08(c) hereof.




          “Authenticating Agent” means the Authenticating Agent appointed pursuant to the Agency
Agreement.




          “Authorized Officer” of a Person means any Person that is authorized to bind such Person
(either acting singly or acting together with one or more other Persons which Persons, acting
together, are authorized to bind such Person).




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




3









 








          “Bank” means Deutsche Bank Aktiengesellschaft, Frankfurt am Main, a Federal Republic of
Germany stock corporation.




          “Bank Indemnified Person” means (a) any Regular Trustee; (b) any Affiliate of any Regular
Trustee; (c) any representatives or agents of any Regular Trustee; or (d) any officer, director,
shareholder, member, partner, employee, representative or agent of the Trust or its Affiliates that
is not a Fiduciary Indemnified Person.




          “Business Day” means a day other than Saturday, Sunday or a day on which banking institutions
in the City of New York are authorized or required by law, regulation or executive order to remain
closed.




          “Capital Payments” means (i) with respect to the Trust Preferred Securities, periodic
distributions to the Holders of the Trust Preferred Securities paid in accordance with this
Agreement to Holders of the Trust Preferred Securities and (ii) with respect to the Class B
Preferred Securities, periodic distributions to holders of the Class B Preferred Securities
declared (or deemed declared) and paid in accordance with the LLC Agreement.




          “Cash Property Account” has the meaning set forth in Section 3.08(c) hereof.




          “Certificate” means a certificate representing the Trust Common Security or the Trust
Preferred Securities.




          “Certificate of Trust” has the meaning set forth in the preamble of this Agreement.




          “Class A Preferred Securities” means Class A Preferred Securities representing preferred
ownership interests in the Company.




          “Class B Preferred Guarantee” means the Class B Preferred Securities Subordinated Guarantee
Agreement dated as of May 23, 2007, as amended from time to time, between the Bank, as guarantor,
and The Bank of New York, as Class B Preferred Guarantee Trustee, for the benefit of the Class B
Preferred Securityholders from time to time.




          “Class B Preferred Guarantee Trustee” has the meaning specified in the Class B Preferred
Guarantee.




          “Class B Preferred Securities” means Class B Preferred Securities representing preferred
ownership interests in the Company.




          “Class B Preferred Securityholder” has the meaning assigned thereto in the LLC Agreement.




          “Class B Redemption Date” has the meaning set forth in the LLC Agreement.




          “Clearing Agency” means, initially, DTC and, thereafter, shall mean any successor securities
clearing system appointed or designated by the Sponsor or the Trust to effect book-entry transfers
and pledges of beneficial interests in the Trust Preferred Securities.




4









 








          “Closing Date” has the meaning specified in the Purchase Agreement.




          “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time, or any
successor legislation. A reference to a specific section (§) of the Code (or any Treasury
Regulation) refers not only to such section but also to any corresponding provision of any federal
tax statute (or any Treasury Regulation) enacted after the date of this Agreement, as such specific
section or corresponding provision is in effect on the date of application of the provisions of
this Agreement containing such reference.




          “Commission” means the U.S. Securities and Exchange Commission.




          “Company” means Deutsche Bank Contingent Capital LLC II, a Delaware limited liability company.




          “Company Special Redemption Event” means (i) a Regulatory Event, (ii) a Tax Event other than a
Tax Event solely with respect to the Trust or (iii) an Investment Company Act Event with respect to
the Company.




          “Corporate Trust Office” means the principal corporate trust office of the Property Trustee at
which, at any particular time, its corporate trust business shall be administered, which office at
the date hereof is located at The Bank of New York, 101 Barclay Street, Floor 21 West, New York,
New York 10286.




          “Covered Person” means: (a) any officer, director, shareholder, partner, member,
representative, employee or agent of (i) the Trust or (ii) the Trust’s Affiliates; and (b) any
Holder of the Trust Securities.




          “Definitive Trust Preferred Certificates” means Trust Preferred Securities issued in
certificated, fully registered form.




          “Delaware Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
Section 3801 et seq., as it may be amended from time to time, or any successor legislation thereto.




          “Delaware Trustee” means Deutsche Bank Trust Company Delaware or any successor entity in a
merger, consolidation or amalgamation, in its capacity as the Delaware trustee to the Trust.




          “Distributable Profits” of the Bank for any fiscal year is the balance sheet profit
(Bilanzgewinn) as of the end of such fiscal year, as shown in the audited unconsolidated balance
sheet of the Bank as of the end of such fiscal year. Such balance sheet profit includes the annual
surplus or loss (Jahresüberschuss/-fehlbetrag), plus any profit carried forward from
previous years, minus any loss carried forward from previous years, plus transfers
from capital reserves and earnings reserves, minus allocations to earnings reserves, all as
determined in accordance with the provisions of the German Stock Corporation Act (Aktiengesetz) and
accounting principles generally accepted in the Federal Republic of Germany as described in the
German Commercial Code (Handelsgesetzbuch) and other applicable German law then in effect. In
determining the availability of sufficient Distributable Profits of the Bank for any fiscal year to




5









 




permit Capital Payments to be declared with respect to the Class B Preferred Securities, any
Capital Payments already paid on the Class B Preferred Securities and any capital payments,
dividends or other distributions already paid during the succeeding fiscal year of the Bank (x) if
the determination of Distributable Profits is being made with respect to any Class B Payment Period
ending on or before the Tier 1 Qualification Date, on Parity Capital Securities and Preferred Tier
1 Capital Securities, if any, or (y) if the if the determination of Distributable Profits is being
made with respect to any Class B Payment Period ending after the Tier 1 Qualification Date, on
Preferred Tier 1 Securities, if any, in each case on the basis of Distributable Profits for such
fiscal year, will be deducted from such Distributable Profits.




          “DTC” means The Depository Trust Company, a New York corporation.




          “Enforcement Event” means the occurrence, at any time, of (i) non-payment of Capital Payments
(plus any Additional Amounts thereon, if any) on the Trust Preferred Securities at the Stated Rate
in full, for four consecutive Payment Periods, (ii) non-payment of Capital Payments (plus any
Additional Amounts thereon, if any) on the Class B Preferred Securities at the Stated Rate in full,
for four consecutive Payment Periods, (iii) a default by the Guarantor (x) in respect of any of its
obligations under Article 4 of the Trust Preferred Guarantee and (y) in the performance of any
other obligation under the Trust Preferred Guarantee, and, in the case of (y), continuance of such
default for 60 days after the Trust Preferred Guarantee Trustee has given notice thereof to the
Guarantor or (iv) a default by the Guarantor (x) in respect of any of its obligations under Article
4 of the Class B Preferred Guarantee and (y) in the performance of any other obligation under the
Class B Preferred Guarantee, and, in the case of (y), continuance of such default for 60 days after
the Class B Preferred Guarantee Trustee has given notice thereof to the Guarantor.




          “ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended from time
to time, or any successor legislation.




          “Fiduciary Indemnified Person” has the meaning set forth in Section 11.04(b) hereof.




          “Fiscal Year” has the meaning set forth in Section 12.01 hereof.




          “Global Trust Preferred Certificate” means a Global Trust Preferred Certificate substantially
in the form attached hereto as Exhibit A, representing the Trust Preferred Securities.




          “Guarantees” means collectively, the Trust Preferred Guarantee and the Class B Preferred
Guarantee.




          “Guarantor” means the Bank in its capacity as guarantor under the Trust Preferred Guarantee or
the Class B Preferred Guarantee, as applicable.




          “Holder” means a Person in whose name a Certificate representing a Trust Security is
registered, such Person being a beneficial owner within the meaning of the Delaware Statutory Trust
Act.




6









 








          “Indemnified Person” means a Bank Indemnified Person or a Fiduciary Indemnified Person (as
defined in Section 11.04(b) hereof).




          “Initial Obligation” means the U.S.$800,000,025 6.55% subordinated obligation issued by
Deutsche Bank Aktiengesellschaft acquired by the Company using the proceeds from the issuance of
the Class B Preferred Securities.




          “Initial Redemption Date” means May 23, 2017, the first day on which the Class B Preferred
Securities will be redeemable by the Company other than on the occurrence of a Company Special
Redemption Event.




          “Initial Trust Agreement” has the meaning as set forth in the preamble of this Agreement.




          “Investment Company Act Event” means that the Bank shall have requested and received an
opinion of a nationally recognized U.S. law firm experienced in such matters to the effect that
there is more than an insubstantial risk that the Company or the Trust is or will be considered an
“investment company” within the meaning of the 1940 Act as a result of any judicial decision, any
pronouncement or interpretation (irrespective of the manner made known), the adoption or amendment
of any law, rule or regulation, or any notice or announcement (including any notice or announcement
of intent to adopt such law, rule or regulation) by any U.S. legislative body, court, governmental
agency, or regulatory authority, in each case after the date hereof.




          “Issue Date” means May 23, 2007.




          “Legal Action” has the meaning set forth in Section 3.06(h) hereof.




          “Liquidation Preference Amount” has the meaning set forth in Section 8.01 hereof.




          “List of Holders” has the meaning set forth in Section 2.02(a) hereof.




          “LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of Deutsche
Bank Contingent Capital LLC II, dated as of May 23, 2007.




          “Majority or Other Stated Percentage” means, except as provided in the terms of the Trust
Securities, a vote by Holders of outstanding Trust Securities voting together as a single class or,
as the context may require, Holders of the outstanding Trust Preferred Securities or Holder of the
outstanding Trust Common Security voting separately as a class, who are the record owners of more
than 50% (or of equal to or more than such other stated percentage) of the aggregate liquidation
amount (including the stated amount that would be paid on redemption, liquidation or otherwise,
plus accumulated and unpaid Capital Payments to the date upon which the voting percentages are
determined) of all outstanding Trust Securities or all outstanding Trust Securities of the relevant
class, as the case may be.




          “Ministerial Action” means, a ministerial action (such as filing a form or making an election
or pursuing some other similar reasonable measure) which in the sole judgment of the




7









 




Bank has or shall cause no adverse effect on the Trust, the Company, the Bank or the Holders
or beneficial owners of the Trust Securities and shall involve no material cost.




          “Obligations” means (i) the Initial Obligation, (ii) an obligation, if any, issued by the Bank
in connection with a notice to the Company to issue additional Class B Preferred Securities and
having the same terms and conditions as the Initial Obligation in all respects except for the issue
date, the date from which interest accrues, the issue price and any other deviations required for
compliance with applicable law and (iii) the Substitute Obligations.




          “Officers’ Certificate” means, with respect to any Person (who is not an individual), a
certificate signed by two Authorized Officers of such Person, and, with respect to a natural
person, a certificate signed by such person. Any Officers’ Certificate delivered with respect to
compliance with a condition or covenant provided for in this Agreement shall include:





     (a) a statement that each officer signing the Officers’ Certificate has read the
covenant or condition and the definitions relating thereto;




     (b) a statement that each such officer has made such examination or investigation as,
in such officer’s opinion, is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has been complied with; and




     (c) a statement as to whether, in the opinion of each such officer, such condition or
covenant has been complied with.



          “Parity Capital Securities” means, at any time, Parity Subsidiary Capital Securities and each
class of ownership interests in the capital of the Bank that at such time rank senior to the
preference shares of the Bank and junior to all other securities of the Bank that at such time (i)
rank senior to preference shares and (ii) do not by their terms rank pari passu with such ownership
interests of the Bank, if any.




          “Parity Subsidiary Capital Securities” means, at any time, any instrument of any subsidiary of
the Bank subject to any guarantee or support agreement of the Bank ranking at such time pari passu
with the obligations of the Bank under the terms of the Guarantees in effect before the Tier 1
Qualification Date.




          “Paying Agent” has the meaning set forth in Section 8.07 hereof.




          “Payment Amount” has the meaning set forth in Section 7.02(f) hereof.




          “Payment Date” means (i) February 23, May 23, August 23 and November 23, commencing on August
23, 2007. If any Payment Date or redemption date falls on a day that is not a Business Day, the
amounts payable on such Payment Date or redemption date will be payable on the next succeeding
Business Day, without adjustment, interest or further payment as a result of such delay in payment.




          “Payment Period” with respect to any Payment Date means the period from and including the
immediately preceding Payment Date (or the Issue Date with respect to Capital Payments payable on
August 23, 2007) to but excluding the relevant Payment Date.




8









 








          “Person” means a legal person, including any individual, corporation, estate, partnership
(general or limited), joint venture, association, joint stock company, limited liability company,
trust, unincorporated association, or government or any agency or political subdivision thereof, or
any other entity of whatever nature.




          “Preferred Tier 1 Capital Securities” of any person means, at any time, each class of the most
senior ranking preference shares of such person and any other instruments of such person (other
than common shares) then qualifying as Tier 1 Regulatory Capital and, if such person is the Bank,
Preferred Tier 1 Subsidiary Securities.




          “Preferred Tier 1 Securities” means, at any time, each class of the most senior ranking
preference shares of the Bank, if any, and preference shares or any other instrument of any
subsidiary of the Bank subject to any guarantee or support agreement of the Bank then ranking on a
parity with the obligations of the Bank as Guarantor under the Guarantees.




          “Preferred Tier 1 Subsidiary Securities” means, at any time, the most senior ranking
preference shares and any other instruments of any person other than the Bank, which, in each case,
then qualify as Tier 1 Regulatory Capital and are subject to any agreement of the Bank that
guarantees or otherwise provides support of such preference shares or other instruments.




          “Property Accounts” has the meaning set forth in Section 3.08(c) hereof.




          “Property Trustee” means The Bank of New York or any successor entity in a merger,
consolidation or amalgamation, in its capacity as property trustee of the Trust.




          “Purchase Agreement” means the Purchase Agreement dated as of May 16, 2007 among the Bank, the
Company, the Trust and the underwriters named therein, relating to the sale and issuance of Trust
Preferred Securities and Class B Preferred Securities.




          “Qualified Subsidiary” means a Subsidiary that meets the definition of “a company controlled
by its parent company” as defined in Rule 3a-5 under the 1940 Act.




          “Quorum” means a majority of the Regular Trustees or, if there are only two Regular Trustees,
both of them.




          “Redemption Date” means the date fixed for redemption of the Trust Preferred Securities.




          “Redemption Notice” has the meaning set forth in Section 8.04 hereof.




          “Redemption Price” has the meaning set forth in Section 8.03 hereof.




          “Register” has the meaning set forth in Section 10.08 hereof.




          “Registrar” shall mean the party appointed as such pursuant to the Agency Agreement, which
shall initially be Deutsche Bank Trust Company Americas.




          “Regular Trustee” has the meaning set forth in Section 6.01 hereof.




9









 








          “Regulatory Event” means that the Bank is notified by a relevant regulatory authority that, as
a result of the occurrence of any amendment to, or change (including any change that has been
adopted but has not yet become effective) in, the applicable banking laws of Germany (or any rules,
regulations or interpretations thereunder, including rulings of the relevant banking authorities)
or the guidelines of the Committee on Banking Supervision at the Bank for International
Settlements, in each case effective after the date of the issuance of the Company Securities and
the Trust Securities, the Bank is not, or will not be, allowed to treat the Class B Preferred
Securities as core capital (Kernkapital) or Tier I regulatory capital for capital adequacy purposes
on a consolidated basis.




          “Relevant Jurisdiction” has the meaning set forth in Section 7.02(g) hereof.




          “Responsible Officer” shall mean, when used with respect to the Property Trustee, any officer
within the Corporate Trust Office of the Property Trustee, including any vice president, assistant
vice president, assistant treasurer, trust officer or any other officer of the Property Trustee who
customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement.




          “Securities Act” means the U.S. Securities Act of 1933, as amended from time to time, or any
successor legislation.




          “Services Agreement” means the Services Agreement dated as of May 23, 2007 among the Bank,
acting directly and through its New York branch, the Company and the Trust.




          “Similar Law” has the meaning specified in Section 8.09 hereof.




          “Sponsor” means the Company or any successor entity in a merger, consolidation or
amalgamation, in its capacity as sponsor of the Trust.




          “Stated Rate” means a fixed rate per annum for each Payment Period equal to 6.55%, calculated
on the basis of a 360-day year of twelve 30-day months.




          “Subsidiary” means a subsidiary (i) that is consolidated with the Bank for German bank
regulatory purposes and (ii) of which the Bank owns or controls, directly or indirectly, more than
(x) fifty percent (50%) of the outstanding voting stock or other equity interest entitled
ordinarily to vote in the election of the directors or other governing body (however designated)
and (y) fifty percent (50%) of the outstanding capital stock or other equity interest.




          “Substitute Obligations” means a subordinated obligation issued (in substitution for the
Initial Obligation or of Substitute Obligations or any additional obligation described in the
definition of “Obligations”) by the Bank or a Subsidiary with the same aggregate principal amount
and interest rate and payment dates as those of the Initial Obligation and a maturity that is
perpetual or is not earlier than May 23, 2037 and terms otherwise substantially identical to those
of the Initial Obligation, provided, that unless the Bank itself is the issuer of the
Substitute




10









 




Obligations, the Bank (which may act through a branch) guarantees on a subordinated basis, at
least equal to the ranking of the Initial Obligation, the obligations of the new substitute
obligor; provided, in each case, that (i) the Bank has received the written opinion of a
nationally recognized law firm in the United States that reinvestment in such Substitute Obligation
will not adversely affect the “qualified dividend income” eligibility for purposes of Section
1(h)(11) of the Internal Revenue Code of 1986, as amended (or any successor legislation), of
Capital Payments on the Trust Preferred Securities or cause the holders thereof to recognize gain
or loss for U.S. federal income tax purposes and (ii) such substitution or replacement does not
result in a Company Special Redemption Event or a Trust Special Redemption Event, and
provided, further in each case that the Bank has obtained any required regulatory
approvals.




          “Successor Delaware Trustee” has the meaning set forth in Section 6.06 hereof.




          “Successor Entity” has the meaning set forth in Section 3.15 hereof.




          “Successor Property Trustee” has the meaning set forth in Section 6.06 hereof.




          “Successor Trust Securities” has the meaning set forth in Section 3.15 hereof.




          “Tax Event” means (A) the receipt by the Bank of an opinion of a nationally recognized law
firm or other tax adviser in a Relevant Jurisdiction, as appropriate, experienced in such matters,
to the effect that, as a result of (i) any amendment to, or clarification of, or change (including
any announced prospective change) in, the laws (or any regulations promulgated thereunder) of a
Relevant Jurisdiction or any political subdivision or taxing authority thereof or therein affecting
taxation, (ii) any Administrative Action or (iii) any amendment to, clarification of, or change in
the official position or the interpretation of such Administrative Action or any interpretation or
pronouncement that provides for a position with respect to such Administrative Action that differs
from the theretofore generally accepted position in each case, by any legislative body, court,
governmental authority or regulatory body, irrespective of the manner in which such amendment,
clarification or change is made known, which amendment, clarification or change is effective, or
which Administrative Action, pronouncement or decision is announced, after the date hereof, there
is more than an insubstantial risk that (a) the Trust or the Company is or will be subject to more
than a de minimis amount of taxes, duties or other governmental charges, or (b) the Trust, the
Company, an obligor on the Obligations, or the Guarantor would be obligated to pay Additional
Amounts, Additional Interest Amounts or Trust Preferred Guarantee Additional Amounts or Class B
Preferred Guarantee Additional Amounts, as applicable, or (B) a final determination has been made
by the German tax authorities to the effect that the Bank, as obligor on the Obligations, may not,
in the determination of its taxable income for the purposes of determining German corporate income
tax in any year, deduct in full interest payments on the Obligations (except to the extent such
interest payments are determined to be connected with income of a branch that is not subject to
taxation in Germany). However, none of the foregoing shall constitute a Tax Event if it may be
avoided by the Bank, the Trust or the Company taking reasonable measures under the circumstances.




          “Tier 1 Qualification Date” has the meaning set forth in Section 10.04(k) of the LLC
Agreement.




11









 








          “Tier 1 Regulatory Capital” means core capital (Kernkapital) of the Bank on a consolidated
basis.




          “Transfer Agent” means the Transfer Agent appointed pursuant to the Agency Agreement.




          “Treasury Regulations” means the income tax regulations, including temporary and proposed
regulations, promulgated under the Code by the United States Treasury Department, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).




          “Trust” has the meaning set forth in the preamble of this Agreement.




          “Trust Common Security” has the meaning set forth in Section 8.01 hereof.




          “Trust Common Security Certificate” means a definitive certificate in fully registered form
representing a Trust Common Security substantially in the form of Exhibit B.




          “Trust Estate” means all right, title and interest of the Trust in and to (i) the Class B
Preferred Securities, (ii) the related rights under the Class B Preferred Guarantee, and (iii) the
Cash Property Account and the Asset Property Account, any subaccounts thereof and all financial
assets credited and amounts on deposit or credit balances carried in, each of them from time to
time, and all distributions and payments with respect to any of the foregoing, in each case from
time to time held by the Property Trustee hereunder. “Trust Estate” shall not include any amounts
paid or payable to the Guarantor pursuant to this Agreement, including without limitation, fees,
expenses and indemnities.




          “Trust Indenture Act” means the U.S. Trust Indenture Act of 1939, as amended from time to
time, or any successor legislation.




          “Trust Liquidation” has the meaning set forth in Section 9.02 hereof.




          “Trust Preferred Guarantee” means the Trust Preferred Securities Guarantee Agreement dated as
of May 23, 2007, as amended from time to time, between the Bank, as guarantor, and The Bank of New
York, as Trust Preferred Guarantee Trustee, for the benefit of the Property Trustee for the benefit
of the holders of the Trust Preferred Securities from time to time.




          “Trust Preferred Guarantee Additional Amounts” has the meaning set forth in the Trust
Preferred Guarantee.




          “Trust Preferred Guarantee Trustee” has the meaning specified in the Trust Preferred
Guarantee.




          “Trust Preferred Security” has the meaning set forth in Section 8.01(a) hereof.




          “Trust Securities” means the Trust Common Security and the Trust Preferred Securities.




12









 








          “Trust Special Redemption Event” means (i) a Tax Event solely with respect to the Trust, but
not with respect to the Company or (ii) an Investment Company Act Event solely with respect to the
Trust, but not with respect to the Company.




          “Trustee” or “Trustees” means each Person who has signed this Agreement as a trustee, so long
as such Person shall continue in office in accordance with the terms hereof, and all other Persons
who may from time to time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.




          “Withholding Taxes” has the meaning set forth in Section 7.02(g) hereof.




          Section 1.02. Other Definitional Provisions.





     (a) The headings and subheadings contained in this Agreement are included for
convenience of reference and identification only and are in no way intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or any provision
hereof.




     (b) The following rules shall apply to the construction of this Agreement unless the
context requires otherwise: (i) the singular includes the plural and the plural, the
singular; (ii) words importing any gender include the other gender; (iii) references to
statutes are to be construed as including all statutory provisions consolidating, amending
or replacing the statute to which reference is made and all regulations promulgated pursuant
to such statutes; (iv) references to “writing” include printing, photocopy, typing,
lithography and other means of reproducing words in a tangible visible form; (v) the words
“including,” “includes” and “include” shall be deemed to be followed by the words “without
limitation”; (vi) references to the introductory paragraph, preliminary statements,
articles, sections (or subdivisions of sections), exhibits, appendices, annexes or schedules
are to those of this Agreement unless otherwise indicated; (vii) references to agreements
and other contractual instruments shall be deemed to include all subsequent amendments and
other modifications to such instruments but only to the extent that such amendments and
other modifications are permitted or not prohibited by the terms of this Agreement; (viii)
references to Persons include their respective successors and assigns permitted or not
prohibited by the terms of this Agreement; (ix) an accounting term not otherwise defined has
the meaning assigned to it in accordance with generally accepted accounting principles in
the United States of America; (x) “or” is not exclusive; (xi) provisions apply to successive
events and transactions; (xii) references to documents or agreements which have been
terminated or released or which have expired shall be of no force and effect after such
termination, release or expiration; (xiii) references to mail shall be deemed to refer to
first class mail, postage prepaid, unless another type of mail is specified; (xiv) all
references to time shall be to New York City time unless otherwise indicated; (xv)
references to specific Persons, positions or officers shall include those who or which
succeed to or perform their respective functions, duties or responsibilities referred to in
the proceedings in connection with the Trust Preferred Securities; (xvi) the terms “herein,”
“hereunder,” “hereby,” “hereto,” “hereof” and any similar terms refer to this Agreement as a
whole and not to any particular article, section or subdivision hereof;



13









 







and the term “heretofore” means before the date of execution of this Agreement, the
term “now” means at the date of execution of this Agreement, and the term “hereafter” means
after the date of execution of this Agreement; and (xvii) references to payments of
principal include any premium payable on the same date.



ARTICLE 2

TRUST INDENTURE ACT




          Section 2.01. Trust Indenture Act; Application.





     (a) This Agreement is subject to the provisions of the Trust Indenture Act that are
required to be part of this Agreement and shall, to the extent applicable, be governed by
such provisions. A term defined in the Trust Indenture Act has the same meaning when used
in this Agreement, unless otherwise defined in this Agreement or unless the context
otherwise requires.




     (b) If and to the extent that any provision of this Agreement limits, qualifies or
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture
Act, such imposed duties shall control.




     (c) The application of the Trust Indenture Act to this Agreement shall not affect the
nature of the Trust Preferred Securities as equity securities representing undivided
beneficial interests in the Trust Estate.



          Section 2.02. Lists of Holders of the Trust Preferred Securities.





     (a) The Registrar on behalf of the Trust shall provide the Property Trustee and the
Paying Agent a list, in such form as the Property Trustee and the Paying Agent may
reasonably require, of the names and addresses of the Holders of the Trust Preferred
Securities (each such list, a “List of Holders”) (i) within 14 days after each record date
for payment of Capital Payments, as of such record date and (ii) at any other time, within
30 days of receipt by the Trust from the Property Trustee or the Paying Agent of a written
request for a List of Holders, as of a date no more than 14 days before such List of Holders
is given to the Property Trustee and the Paying Agent.




     (b) The Property Trustee shall comply with its obligations under Sections 311(a),
311(b) and 312(b) of the Trust Indenture Act.




     (c) The Property Trustee shall be the only Trustee which is a trustee for purposes of
the Trust Indenture Act.



          Section 2.03. Reports by the Trustee. Within 60 days after May 1 of each year, the Property
Trustee shall provide to the Holders of the Trust Preferred Securities such reports as are required
by Section 313(a) of the Trust Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Property Trustee shall also comply with the other
requirements of Section 313(d) of the Trust Indenture Act.




14









 








          Section 2.04. Periodic Reports to the Trustee. The Trust shall provide to the Property Trustee
such documents, reports and information as required by Section 314 of the Trust Indenture Act (if
any) and shall provide, within 60 days after the end of each of its fiscal years, commencing with
the fiscal year ending December 31, 2007, the compliance certificate required by Section 314 of the
Trust Indenture Act, in the form and in the manner required by Section 314 of the Trust Indenture
Act. Delivery of such reports, information and documents to the Property Trustee is for
informational purposes only and the Property Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Trust’s compliance with any of its covenants hereunder (as to which the
Property Trustee is entitled to rely exclusively on Officers’ Certificates furnished by the Trust).




          Section 2.05. Evidence of Compliance with Conditions Precedent. The Trust shall provide to
the Property Trustee evidence of compliance with the conditions precedent, if any, provided for in
this Agreement that relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) of
the Trust Indenture Act may be given in the form of an Officers’ Certificate.




          Section 2.06. Enforcement Event; Waiver.




          (a) As long as any Trust Preferred Securities are outstanding, a Majority of the Trust
Preferred Securities (excluding any Trust Preferred Securities held by the Bank or any of its
Subsidiaries) may, by vote, on behalf of the Holders of all of the Trust Securities, waive any past
Enforcement Event and its consequences, except that any Enforcement Event in respect of a covenant
or provision hereof, the LLC Agreement or any Guarantee, as applicable, which (i) cannot be
modified or amended without the consent of each Holder of Trust Preferred Securities or each Holder
of Class B Preferred Securities, as applicable, can only be waived by all Holders of Trust
Preferred Securities, or (ii) can only be modified or amended with the consent or vote of the
Holders of more than 50% of the Trust Preferred Securities or the Class B Preferred Securities, as
applicable, can only be waived under this Agreement by the vote of the Holders of at least the same
percentage of the Trust Preferred Securities.



     Upon such waiver, such waived Enforcement Event shall be deemed to have been cured, for every
purpose of this Agreement, but no such waiver shall extend to any subsequent or other default or
Enforcement Event or impair any right consequent thereon. For as long as any Enforcement Event has
occurred and is continuing, the Property Trustee shall be deemed to be acting solely on behalf of
the Holders of the Trust Preferred Securities and only the Holders of the Trust Preferred
Securities shall have the right to direct the Property Trustee.



     The foregoing provisions of this Section 2.06(a) shall be in lieu of Section 316(a)(1)(B) of
the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby
expressly excluded from this Agreement and the Trust Securities, as permitted by the Trust
Indenture Act.



          (b) A waiver of an Enforcement Event pursuant to clause (ii) or (iv) of the definition
thereof under this Agreement by the Holders of the Trust Securities constitutes an instruction to
the Property Trustee to waive the corresponding Event of Default under the LLC




15









 




Agreement. In the absence of such waiver and upon the occurrence of an Enforcement Event
pursuant to clause (ii) or (iv) of the definition thereof, the Property Trustee shall have the
right to enforce the rights of the holders of Class B Preferred Securities.




          (c) The Property Trustee shall take all such other actions as directed by the Holders of the
Trust Securities in accordance with the terms of this Agreement.




          Section 2.07. Notice of Enforcement Event. The Property Trustee shall, within 90 days after
the occurrence of an Enforcement Event (or an event which with the passage of time would become an
Enforcement Event, including the failure of the Company to pay a Capital Payment on the Class B
Preferred Securities in full for any Payment Period), give to the Holders of the Trust Securities
in the manner set forth in Section 15.01 hereof, notices of all Enforcement Events (or such events)
actually known to a Responsible Officer of the Property Trustee, unless such Enforcement Events
have been cured before the giving of such notice; provided, that, the Property Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of the Property
Trustee in good faith determines that the withholding of such notice is in the interests of the
Holders of the Trust Securities.




     The Property Trustee shall not be deemed to have knowledge of any Enforcement Event (or any
such event) unless an officer of the Property Trustee in its Corporate Office shall have received
written notice thereof, or a Responsible Officer of the Property Trustee shall have obtained actual
knowledge of such Enforcement Event (or such event).



ARTICLE 3

ORGANIZATION




          Section 3.01. Name. The Trust is named “Deutsche Bank Contingent Capital Trust II,”
as such name may be modified from time to time by the Regular Trustees following written notice to
the Holders of the Trust Securities. The Trust’s activities may be conducted under the name of the
Trust or any other name deemed advisable by the Regular Trustees.




          Section 3.02. Office. The address of the principal office of the Trust is 60 Wall Street, New
York, New York 10005. On ten Business Days’ written notice to the Holders of the Trust Securities,
the Regular Trustees may designate another principal office.




          Section 3.03. Purpose. The Trust exists for the sole purposes of (a) issuing the Trust
Securities which will constitute direct, unsecured and unsubordinated securities of the Trust,
representing undivided beneficial ownership interests in the Trust Estate of the Trust, (b)
investing the proceeds from the issuance of the Trust Securities in the Class B Preferred
Securities and (c) except as otherwise limited herein, engaging in those other activities necessary
or incidental thereto. The Trust shall not borrow money, issue debt or reinvest proceeds derived
from investments, pledge any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would (x) cause the Trust to be classified as other than a grantor trust for United
States federal income tax purposes or (y) require the Trust to register under the 1940 Act.




          Section 3.04. Authority. Subject to the limitations provided in this Agreement and to the
specific duties of the Property Trustee, the Regular Trustees shall have exclusive and




16









 




complete power and authority to carry out the purposes of the Trust. An action taken by the
Regular Trustees in accordance with their powers shall constitute the act of and serve to bind the
Trust and an action taken by the Property Trustee on behalf of the Trust in accordance with its
powers shall constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely conclusively on
the power and authority of the Trustees as set forth in this Agreement.




          Section 3.05. Title to Property of the Trust. Except as provided in Section 3.06(c) and
Section 3.08 hereof with respect to the Class B Preferred Securities and the Property Accounts or
as otherwise provided in this Agreement, legal title to the Trust Estate of the Trust shall be
vested in the Trust. The Holders of the Trust Securities shall not have legal title to any part of
the Trust Estate of the Trust, but shall have an undivided beneficial ownership interest in the
Trust Estate of the Trust.




          Section 3.06. Powers and Duties of the Regular Trustees. The Regular Trustees are authorized
and directed to conduct the affairs of and to operate the Trust in such a way that the Trust shall
not be required to register under the 1940 Act or characterized as other than a grantor trust for
United States federal income tax purposes. In this connection, the Regular Trustees are authorized
to take any action, not inconsistent with applicable law, the certificate of trust or the Trust
Agreement, which the Regular Trustees determine to be necessary for such purposes as long as such
action does not adversely affect the interests of the Holders of the Trust Preferred
Securities. 




          The Regular Trustees shall have the exclusive power, duty and authority to cause the Trust to
engage in the following activities:





     (a) To issue and sell the Trust Preferred Securities and the Trust Common Security in
accordance with the terms and conditions of this Agreement; provided, however, that the
Trust may issue no more than one series of Trust Preferred Securities and no more than one
series of the Trust Common Security.




     Notwithstanding the foregoing, the Company will (if so required by the Bank), from time
to time on or prior to the Payment Date falling closest to the fifth anniversary of the
Issue Date and without the consent of the Trust as the holders of the Class B Preferred
Securities, issue additional Class B Preferred Securities having the same terms as the Class
B Preferred Securities in all respects except for the issue date, the date from which
Capital Payments accrue on the Class B Preferred Securities, the issue price, and any other
deviations required for compliance with applicable law, so as to form a single series with
the Class B Preferred Securities. In such circumstances, and without consent of the holders
of the Trust Preferred Securities, the Trust will issue additional Trust Preferred
Securities having the same terms and conditions as the Trust Preferred Securities in all
respects except for the issue date, the date from which Capital Payments accrue on the Trust
Preferred Securities, the issue price, and any other deviations required for compliance with
applicable law, so as to form a single series with the Trust Preferred Securities, in
consideration for the receipt of such additional Class B Preferred Securities



17









 







equal to the aggregate liquidation preference amount of such additional Trust Preferred
Securities.




     (b) In connection with the issue and sale of the Trust Preferred Securities, at the
direction of the Bank, to:




          (i) execute and file with the Commission the Registration Statement on Form F-3
prepared by the Bank, including any amendments thereto, pertaining to the Trust Preferred
Securities, the Class B Preferred Securities and the Guarantees;




          (ii) execute and enter into the Purchase Agreement providing for the sale of the Trust
Preferred Securities and perform the duties and obligations of the Trust thereunder;




          (iii) execute and enter into the Services Agreement and perform the duties and
obligations of the Trust thereunder,




          (iv) execute and file applications, prepared by the Bank, to the New York Stock
Exchange Inc. for listing upon notice of issuance of any Trust Preferred Securities, and




          (v) execute and file any documents, or take any acts that they or the Bank determines
to be necessary in order to qualify or register all or part of the Trust Preferred
Securities in any jurisdiction in which the Trust or the Bank has determined to qualify or
register such Trust Preferred Securities for offer or sale.




     (c) To acquire the Class B Preferred Securities with the proceeds of the sale of the
Trust Preferred Securities and the Trust Common Security and to execute and enter into the
LLC Agreement; provided, however, that the Regular Trustees shall cause legal title to the
Class B Preferred Securities to be held of record in the name of the Property Trustee for
the benefit of the Holders or beneficial owners of the Trust Preferred Securities and the
Holder of the Trust Common Security;




     (d) To give the Bank and the Property Trustee prompt written notice of the occurrence
of a Trust Special Redemption Event; provided, that the Regular Trustees shall consult with
the Bank and the Property Trustee before taking or refraining from taking any Ministerial
Action in relation to a Trust Special Redemption Event;




     (e) To establish a record date with respect to all actions to be taken hereunder that
require a record date be established, including and with respect to, for the purpose of
Section 316(c) of the Trust Indenture Act, Capital Payments, and to issue relevant notices
to the Holders of the Trust Preferred Securities and the Holder of the Trust Common Security
as to such actions and applicable record dates;




     (f) To give prompt written notice to the Holders of the Trust Securities of any notice
received from the Company to the effect that the Company will not make a current, annual or
quarterly distribution, as the case may be, at the Stated Rate (as defined



18









 







in the LLC Agreement) in full on the Class B Preferred Securities under the LLC
Agreement;




     (g) To take all actions and perform such duties as may be required of the Regular
Trustees pursuant to the terms of the Trust Securities;




     (h) To bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or
otherwise adjust claims or demands of or against the Trust (“Legal Action”), unless pursuant
to Section 3.08(e) or Section 3.08(f) hereof, the Property Trustee has the exclusive power
to bring such Legal Action;




     (i) To employ or otherwise engage employees and agents (who may be designated as
officers with titles) and managers, contractors, advisors, and consultants and pay
reasonable compensation for such services;




     (j) To cause the Trust to comply with the Trust’s obligations under the Trust Indenture
Act;




     (k) To give the certificates required by Section 314 of the Trust Indenture Act to the
Property Trustee, which certificate may be executed by any Regular Trustee;




     (l) To incur expenses that are necessary or incidental to carry out any of the purposes
of the Trust;




     (m) To act as, or appoint another Person to act as, registrar, authenticating agent,
paying agent and transfer agent for the Trust Securities;




     (n) To execute all documents or instruments, perform all duties and powers, and do all
things for and on behalf of the Trust in all matters necessary or incidental to the
foregoing;




     (o) To take all action that may be necessary or appropriate for the preservation and
the continuation of the Trust’s valid existence, rights, franchises and privileges as a
statutory trust under the laws of the State of Delaware and of each other jurisdiction in
which such existence is necessary to protect the limited liability of the Holders of the
Trust Preferred Securities or to enable the Trust to effect the purposes for which the Trust
was created;




     (p) To take any action, or to take no action, not inconsistent with this Agreement or
with applicable law, that the Regular Trustees determine in their discretion to be necessary
or desirable in carrying out the activities of the Trust as set out in this Section 3.06,
including, but not limited to:




          (i) causing the Trust not to be deemed to be an “investment company” within the meaning
of the 1940 Act required to be registered under the 1940 Act; and



19









 






          (ii) taking no action which would be reasonably likely to cause the Trust to be
classified as other than a grantor trust for United States federal income tax purposes;


provided, that such action does not adversely affect the interests of Holders or beneficial owners
of the Trust Securities;





     (q) To take all action necessary to cause all applicable tax returns and tax
information reports that are required to be filed with respect to the Trust to be duly
prepared and filed by the Regular Trustees, on behalf of the Trust; and




     (r) To execute and enter into one or more agency agreements with the Paying Agent,
Registrar, Transfer Agent, Authenticating Agent and the Property Trustee.



          The Regular Trustees must exercise the powers set forth in this Section 3.06 in a manner that
is consistent with the purposes and functions of the Trust set out in Section 3.03 hereof, and the
Regular Trustees shall not take any action that is inconsistent with the purposes and functions of
the Trust set forth in Section 3.03 hereof.




          Subject to this Section 3.06, the Regular Trustees shall have none of the powers or the
authority of the Property Trustee set forth in Section 3.08 hereof.




          Any expenses incurred by the Regular Trustees pursuant to this Section 3.06 shall be
reimbursed by the Bank pursuant to the Services Agreement.




          Section 3.07. Prohibition of Actions by the Trust and the Trustees. The Trust shall not, and
the Trustees (including the Property Trustee) shall cause the Trust not to, engage in any activity
other than as required or authorized by this Agreement. In particular, the Trust shall not and the
Trustees (including the Property Trustee) shall cause the Trust not to:





     (a) invest any proceeds received by the Trust from holding the Class B Preferred
Securities, but shall distribute all such proceeds to Holders of the Trust Securities
pursuant to the terms of this Agreement and of the Trust Securities;




     (b) acquire any assets other than as expressly provided herein;




     (c) possess Trust property other than for a Trust purpose;




     (d) make any loans or incur any indebtedness or acquire any securities other than the
Class B Preferred Securities;




     (e) possess any power or otherwise act in such a way as to vary the Trust Estate or the
terms of the Trust Securities in any way whatsoever except as provided herein;




     (f) issue any securities or other evidences of beneficial ownership of, or beneficial
interest in, the Trust other than the Trust Securities;



20









 






     (g) other than as set forth herein, consent to any amendment, modification or
termination of the LLC Agreement or the Class B Preferred Securities where such consent
shall be required; and




     (h) other than in connection with the liquidation of the Trust pursuant to a Tax Event
or upon redemption of all the Trust Securities, file a certificate of cancellation of the
Trust.



          Section 3.08. Powers and Duties of the Property Trustee.





     (a) The legal title to the Class B Preferred Securities shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the Holders of the
Trust Securities. The Property Trustee shall have the power to exercise all rights, powers
and privileges with respect to the Class B Preferred Securities under the LLC Agreement as
the holder of the Class B Preferred Securities. The right, title and interest of the
Property Trustee to the Class B Preferred Securities shall vest automatically in each Person
who may hereafter be appointed as Property Trustee in accordance with Section 6.06 hereof.
Such vesting and cessation of title shall be effective whether or not conveyancing documents
with regard to the Class B Preferred Securities have been executed and delivered.




     (b) The Property Trustee shall not transfer its right, title and interest in the Class
B Preferred Securities to the Regular Trustees or to the Delaware Trustee (if the Property
Trustee does not also act as Delaware Trustee).




     (c) The Property Trustee shall:




          (i) establish and maintain segregated non-interest bearing trust account for the
receipt, deposit and payment of funds in respect of Capital Payments on, and payments on
redemption of, the Class B Preferred Securities, (plus Additional Amounts, if any), which
payments shall include, but not be limited to, payments pursuant to the Class B Preferred
Guarantee (such account, the “Cash Property Account”) and to establish and maintain a
segregated non-interest bearing trust account for the receipt, deposit and payment of other
assets and funds in respect of the Class B Preferred Securities (such account, the “Asset
Property Account” and, together with the Cash Property Account, the “Property Account”).
Each of the Property Accounts shall be in the name of and under the exclusive control of the
Property Trustee on behalf of the Holders of the Trust Securities. Upon the receipt of
payments of funds made in respect of the Class B Preferred Securities held by the Property
Trustee, deposit such funds into the Cash Property Account and cause such funds to be
transferred to the Paying Agent for the purpose of making payments to the Holders of the
Trust Preferred Securities and the Holder of the Trust Common Security in accordance with
this Agreement. The Property Trustee shall maintain all other payments of funds made in
respect of the Class B Preferred Securities and the assets of the Trust in the Asset
Property Account until such funds, assets or the proceeds therefrom are distributed to the
Holders of the Trust Securities in accordance with this Agreement. Funds in the Property
Accounts shall be held uninvested until disbursed in accordance with this Agreement. Each
Property



21









 







Account shall be an account that is maintained with a banking institution authorized to
exercise corporate trust powers and having a combined capital and surplus of at least
U.S.$50,000,000 and subject to supervision or examination by federal or state authority;




          (ii) engage in such ministerial activities as shall be necessary or appropriate to
effect the redemption of the Trust Preferred Securities and the Trust Common Security to the
extent the Class B Preferred Securities are redeemed; and




          (iii) upon written notice of distribution issued by the Regular Trustees in accordance
with the terms of the Trust Securities, engage in such ministerial activities as shall be
necessary or appropriate to effect the distribution of the Class B Preferred Securities to
Holders of the Trust Securities.




     (d) The Property Trustee shall take all actions and perform such duties as may be
specifically required of the Property Trustee pursuant to the terms of the Trust Securities.




     (e) The Property Trustee shall take any Legal Action which arises out of or in
connection with (i) an Enforcement Event of which a Responsible Officer of the Property
Trustee has actual knowledge or (ii) the Property Trustee’s duties and obligations under
this Agreement or the Trust Indenture Act.




     (f) The Property Trustee shall have the legal power, and the Regular Trustees shall
have no power, to exercise all of the rights, powers and privileges of a holder of the Class
B Preferred Securities and, if an Enforcement Event occurs and is continuing, the Property
Trustee shall (subject to the rights of the Holders of the Trust Securities pursuant to the
terms of such Trust Securities) for the benefit of Holders of the Trust Securities, enforce
its rights as holder of the Class B Preferred Securities, including the right to receive
Capital Payments (only if and to the extent declared or deemed declared by the Company) and
Arrears of Payments, if any (plus, in each case, Additional Amounts thereon, if any) on the
Class B Preferred Securities.




     (g) The Property Trustee shall continue to serve as a Trustee until either:




          (i) the Trust has been completely liquidated and the proceeds of the liquidation
distributed to the Holders of the Trust Securities pursuant to the terms of the Trust
Securities; or




          (ii) a Successor Property Trustee has been appointed and has accepted that appointment
in accordance with Section 6.06 hereof.




          (iii) Subject to this Section 3.08, the Property Trustee shall have none of the duties,
liabilities, powers or the authorities of the Regular Trustees set forth in Section 3.06
hereof.



          The Property Trustee must exercise the responsibilities set forth in this Section 3.08 in a
manner that is consistent with the purposes and functions of the Trust set out in Section 3.03
hereof, and the Property Trustee shall not take any action that is inconsistent with the purposes
and functions of the Trust set out in Section 3.03 hereof.




22









 








          Section 3.09. Certain Duties and Responsibilities of the Property Trustee.





     (a) The Property Trustee, prior to the occurrence of any Enforcement Event and after
the curing or waiver of all Enforcement Events that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this Agreement and no implied
covenants shall be read into this Agreement against the Property Trustee.




     (b) In case an Enforcement Event has occurred (that has not been cured or waived
pursuant to Section 2.06 hereof) and is actually known to a Responsible Officer of the
Property Trustee, the Property Trustee shall exercise such of the rights and powers vested
in it by this Agreement, and use the same degree of care and skill in its exercise thereof,
as a prudent person would exercise or use under the circumstances in the conduct of his or
her own affairs. Upon the occurrence of an Enforcement Event, the Property Trustee, as the
holder of the Class B Preferred Securities, shall enforce its rights in accordance with
Section 3.08(f) hereof.




     (c) No provision of this Agreement shall be construed to relieve the Property Trustee
from liability for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:




          (i) in the absence of bad faith on the part of the Property Trustee, the Property
Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Agreement; but in the case of any such
certificates or opinions that by any provision hereof are specifically required to be
furnished to the Property Trustee, the Property Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this Agreement;




          (ii) the Property Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Property Trustee, unless it shall be proved that the
Property Trustee was negligent in ascertaining the pertinent facts upon which such judgment
was made;




          (iii) subject to the requirement of the Property Trustee receiving a tax opinion as set
forth in Section 8.05(g) or Section 8.06(b) hereof, as the case may be, the Property
Trustee shall not be liable with respect to any action taken or omitted to be taken by it
regarding the time, method and place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Agreement, in good faith in accordance with the direction of the Holders
of not less than a Majority of the Trust Securities entitled to give such directions in
accordance with this Agreement;




     (d) no provision of this Agreement shall require the Property Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers if the Property Trustee shall
have reasonable grounds for believing that the repayment of such funds or liability



23









 







is not reasonably assured to it under the terms of this Agreement or indemnity
reasonably satisfactory to the Property Trustee against such risk or liability is not
reasonably assured to it;




     (e) the Property Trustee’s sole duty with respect to the custody, safe keeping and
physical preservation of the Class B Preferred Securities and the Property Accounts shall be
to deal with such property in a similar manner as the Property Trustee deals with similar
property for its own account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Agreement and the Trust Indenture Act;




     (f) the Property Trustee shall have no duty or liability for or with respect to the
value, genuineness, existence or sufficiency of the Class B Preferred Securities or the
payment of any taxes or assessments levied thereon or in connection therewith;




     (g) the money held by the Property Trustee need not be segregated from other funds held
by it except in relation to the Property Accounts maintained by the Property Trustee
pursuant to Section 3.08(c) hereof and except to the extent otherwise required by law; and




     (h) the Property Trustee shall not be responsible for monitoring the compliance by the
Regular Trustees or the Sponsor or the Bank with their respective duties under this
Agreement, nor shall the Property Trustee be liable for any default or misconduct of the
Regular Trustees or the Sponsor or the Bank.



          Section 3.10. Certain Rights of Property Trustee.




          (a) Subject to the provisions of Section 3.09 hereof:





          (i) the Property Trustee may conclusively rely and shall be fully protected in acting
or refraining from acting upon, any Officers’ Certificate, any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties;




          (ii) any direction, request, order or demand of the Sponsor or the Regular Trustees
acting on behalf of the Trust contemplated by this Agreement shall be sufficiently evidenced
by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically
prescribed);




          (iii) whenever in the administration of this Agreement, the Property Trustee shall deem
it desirable that a matter be proved or established before taking, suffering or omitting any
action hereunder, such matter (unless other evidence is herein specifically prescribed),
may, in the absence of negligence or bad faith on the part of the Property Trustee, be
deemed to be conclusively proved and established by an Officers’ Certificate delivered to
the Property Trustee, and such Officers’ Certificate, in the absence of negligence or bad
faith on the part of the Property Trustee, shall be full



24









 







warrant to the Property Trustee for any action taken, suffered or omitted to be taken
by it under the provisions of this Agreement upon the faith thereof;




          (iv) the Property Trustee may, at the expense of the Bank, consult with counsel or
other experts and the advice or opinion of such counsel and experts with respect to legal
matters or advice within the scope of such experts’ area of expertise shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such advice or opinion; such counsel may
be counsel to the Sponsor or any of its Affiliates, and may include any of its employees.
The Property Trustee shall have the right at any time to seek instructions concerning the
administration of this Agreement from any court of competent jurisdiction;




          (v) the Property Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Agreement at the request or direction of any Holder of the Trust
Securities, unless (a) such Holder shall have provided to the Property Trustee security and
indemnity, reasonably satisfactory to the Property Trustee, against the fees, charges,
costs, expenses (including attorneys’ fees and expenses and the expenses of the Property
Trustee’s agents, nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable advances as may be
requested by the Property Trustee and (b) the Property Trustee has obtained the legal
opinion, if any, required by Section 8.05(g) or Section 8.06(b) hereof, as the case may be;
provided, that nothing contained in this Section 3.10(a)(v) shall be taken to relieve the
Property Trustee, upon the occurrence of an Enforcement Event, of its obligation to exercise
the rights and powers vested in it by this Agreement;




          (vi) prior to the occurrence of any Enforcement Event and after the curing or waiving
of all Enforcement Events, the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, unless requested in writing to do so by
a Majority of Trust Securities affected (voting as a single class) but the Property Trustee,
in its discretion, may make such further inquiry or investigation into such facts or matters
as it may see fit but shall incur no liability or additional liability of any kind by reason
of such inquiry or investigation;




          (vii) the Property Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents, custodians, nominees or
attorneys and the Property Trustee shall not be responsible for any misconduct or negligence
on the part of any agent, custodian, nominee or attorney appointed with due care by it
hereunder;




          (viii) any action taken by the Property Trustee or its agents hereunder shall bind the
Trust and the Holders of the Trust Securities, and the signature of the Property Trustee or
its agents alone shall be sufficient and effective to perform any such action and no third
party shall be required to inquire as to the authority of the Property



25









 







Trustee to so act or as to its compliance with any of the terms and provisions of this
Agreement, both of which shall be conclusively evidenced by the Property Trustee’s or its
agent’s taking such action;




          (ix) whenever in the administration of this Agreement the Property Trustee shall deem
it desirable to receive instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Property Trustee (i) may request written instructions from
the Majority or Other Stated Percentage of the Trust Securities as would be entitled to
direct the Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such
other action until such written instructions are received, and (iii) shall be protected in
conclusively relying on or acting in accordance with such instructions; provided, however,
that the Property Trustee shall not be required to take any action unless it shall have
obtained such legal opinions, if any, required by Section 8.05(g) or Section 8.06(d) hereof,
as the case may be; and




          In the event that the Property Trustee is also acting as Authenticating Agent, Paying
Agent, Transfer Agent and/or Registrar, the rights and protections afforded to the Property
Trustee pursuant to this Article 3 shall also be afforded to such Authenticating Agent,
Paying Agent, Transfer Agent and Registrar.




     (b) No provision of this Agreement shall be deemed to impose any duty or obligation on
the Property Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or
in which the Property Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to exercise any such right, power, duty
or obligation. No permissive power or authority available to the Property Trustee shall be
construed to be a duty.



          Section 3.11. Delaware Trustee. Notwithstanding any provision of this Agreement other than
Section 6.02 hereof, the Delaware Trustee is appointed to serve as the trustee of the Trust in the
State of Delaware for the sole purpose of satisfying the requirement of Section 3807 (a) of the
Delaware Statutory Trust Act that the Trust have at least one trustee with a principal place of
business in Delaware. It is understood and agreed by the parties hereto that the Delaware Trustee
shall have none of the duties or liabilities of the Property Trustee or Regular Trustees. The
duties of the Delaware Trustee shall be limited to (a) accepting legal process served on the Trust
in the State of Delaware and (b) the execution of any certificates required to be filed with the
Delaware Secretary of State which the Delaware Trustee is required to execute under Section 3811 of
the Delaware Statutory Trust Act. To the extent that, at law or in equity, the Delaware Trustee
has duties (including fiduciary duties) and liabilities relating thereto to the Trust, the
beneficial owners thereof or any other person, it is hereby understood and agreed by the other
parties hereto that such duties and liabilities are replaced by the duties and liabilities of the
Delaware Trustee expressly set forth in this Agreement. In no event shall the Property
Trustee or the Delaware Trustee be liable for any act or omission of any act of the Regular
Trustees hereunder. The Delaware Trustee will be entitled to the same rights, privileges and
immunities as the Property Trustee is entitled to under Section 3.09 and Section 3.10 of this
Agreement.




26









 








          Section 3.12. Execution of Documents. Unless otherwise determined by the Regular Trustees,
and except as otherwise required by the Delaware Statutory Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents that the Regular Trustees have the power
and authority to cause the Trust to execute pursuant to Section 3.10 hereof.




          Section 3.13. Not Responsible for Recitals or Issuance of Trust Securities. The recitals
contained in this Agreement and the Trust Securities shall be taken as the statements of the
Sponsor, and the Trustees do not assume any responsibility for their correctness. The Trustees
make no representations as to the value or condition of the property of the Trust or any part
thereof. The Trustees make no representations as to the validity or sufficiency of this Agreement
or the Trust Securities.




          Section 3.14. Duration of Trust. The Trust, unless terminated pursuant to the provisions of
Article 9 hereof, shall have perpetual existence.




          Section 3.15. Mergers.





     (a) The Trust may not consolidate, amalgamate, merge with or into, or be replaced by,
or convey, transfer or lease its properties and assets substantially as an entirety to any
corporation or other entity, except as described in Section 3.15(b) and (c) hereof.




     (b) The Trust may, with the consent of a majority of the Regular Trustees and without
the consent of the Holders of the Trust Securities, the Property Trustee or the Delaware
Trustee, consolidate, amalgamate, merge with or into, or be replaced by a trust organized as
such under the laws of any State of the United States, or convey, transfer or lease its
properties and assets substantially as an entirety to any corporation or other entity;
provided, that:




          (i) if the Trust is not the survivor, such successor entity (the “Successor Entity”)
either:




     (A) expressly assumes all of the obligations of the Trust to the Holders
of the Trust Securities; or




     (B) substitutes for the Trust Securities other securities having
substantially the same terms as the Trust Securities (the “Successor Trust
Securities”) so long as the Successor Trust Securities rank the same as the
Trust Securities rank with respect to Capital Payments, distributions and
rights upon liquidation, redemption or otherwise;




          (ii) the Company expressly acknowledges a trustee of such Successor Entity possessing
the same powers and duties as the Property Trustee as the holder of the Class B Preferred
Securities;




          (iii) if applicable, the Successor Trust Securities are listed, or any Successor Trust
Securities will be listed upon notification of issuance, on any securities



27









 







exchange or other organization on which the Trust Preferred Securities are then listed
or quoted, and the Successor Securities have at least the same rating as the Trust Preferred
Securities;




          (iv) such merger, consolidation, amalgamation or replacement does not adversely affect
the rights, preferences and privileges or tax treatment of the Holders of the Trust
Preferred Securities (including any Successor Trust Securities) in any material respect;




          (v) such Successor Entity has purposes substantially identical to that of the Trust,




          (vi) such Successor Entity will be classified as a grantor trust for United States
federal income tax purposes;




          (vii) the Guarantor guarantees the obligations of such Successor Entity under the
Successor Trust Securities to the same extent as provided under the Trust Preferred
Guarantee;




          (viii) prior to such merger, consolidation, amalgamation or replacement, the Bank has
received an opinion of a nationally recognized law firm experienced in such matters to the
effect that:




     (A) such merger, consolidation, amalgamation or replacement shall not
adversely affect the rights, preferences and privileges or tax treatment of the
Holders of the Trust Preferred Securities (including the Successor Trust
Securities) in any material respect;




     (B) following such merger, consolidation, amalgamation or replacement,
neither the Trust nor such Successor Entity shall be required to register under
the 1940 Act;




     (C) following such merger, consolidation, amalgamation or replacement, the
Trust (or such Successor Entity) shall be classified as a grantor trust for
U.S. federal income tax purposes; and




     (D) following such merger, consolidation, amalgamation or replacement, the
Company shall not be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income tax
purposes; and




          (viii) such merger, consolidation, amalgamation or replacement does not otherwise
result in a Trust Special Redemption Event and/or Company Special Redemption Event.




     (c) Notwithstanding Section 3.15(b) hereof, the Trust shall not, except with the
consent of Holders of 100% of the outstanding Trust Preferred Securities (excluding Trust
Preferred Securities held by the Bank and its Affiliates), consolidate, amalgamate,



28









 







merge with or into, or be replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it, if such consolidation,
amalgamation, merger or replacement would cause the Trust or Successor Entity not to be
classified as a grantor trust for United States federal income tax purposes.



ARTICLE 4

THE GUARANTOR




          Section 4.01. Responsibilities of the Guarantor. In connection with the issue and sale of the
Trust Preferred Securities, the Guarantor shall have the exclusive right and responsibility to
engage in the following activities:





     (a) To determine the jurisdictions in which to take appropriate action to qualify for
sale all or part of the Trust Preferred Securities and to do any and all such acts, other
than actions which must be taken by the Trust, and advise the Trust of actions it must take,
and prepare for execution and filing any documents to be executed and filed by the Trust, as
the Guarantor deems necessary or advisable in order to comply with the applicable laws of
any such jurisdictions;




     (b) To prepare for filing by the Trust with the Commission a registration statement on
Form F-3 in relation to the Trust Preferred Securities, Class B Preferred Securities and the
Guarantees, including any amendments thereto;




     (c) To prepare for filing by the Trust applications to the New York Stock Exchange for
listing upon notice of issuance of any Trust Preferred Securities; and




     (d) To negotiate the terms of and execute the Purchase Agreement providing for the sale
of the Trust Preferred Securities.



          Section 4.02. Indemnification and Expenses of the Trustees. The Guarantor agrees to indemnify
the Regular Trustees, the Property Trustee and the Delaware Trustee and their respective officers,
directors, employees and agents for, and to hold each of them harmless against, any loss, liability
or expense incurred without negligence or bad faith on the part of the Property Trustee or the
Delaware Trustee, as the case may be, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and expenses of defending them
against any claim or liability in connection with the exercise or performance of any of their
respective powers or duties hereunder. The provisions of this Section 4.02 shall survive the
resignation or removal of the Property Trustee or the Delaware Trustee, as the case may be, or the
termination of this Agreement.




          Section 4.03. Covenants of the Guarantor. 




          (a) The Guarantor, for so long as any Trust Preferred Securities remain outstanding,
shall maintain, or shall cause a Qualified Subsidiary to maintain, 100% ownership of the
Trust Common Security. Any transfer of the Trust Common Security from the Guarantor to a
Qualified Subsidiary or from a Qualified Subsidiary to the Guarantor or to another Qualified
Subsidiary is conditioned on the receipt by the


29









 







Guarantor of an opinion of a nationally recognized law firm in the United States
experienced in such matters to the effect that (A) the Company shall continue to be treated
as a partnership for U.S. federal income tax purposes, (B) such transfer shall not cause the
Company or the Trust to be classified as an association or publicly traded partnership
taxable as a corporation for United States federal income tax purposes, (C) such transfer
shall not cause the Company or the Trust to be required to register under the 1940 Act; (D)
such transfer shall not adversely affect the limited liability of the holders of the Class B
Preferred Securities and (E) such transfer shall not otherwise result in a Trust Special
Redemption Event and/or a Company Special Redemption Event.





     (b) For so long as any Trust Preferred Securities remain outstanding, the Guarantor
shall cause the Trust to remain a statutory trust and shall use its commercially reasonable
efforts to ensure that the Trust shall not be classified as other than a grantor trust for
U.S. federal income tax purposes.




     (c) The Guarantor, for so long as any of the Trust Securities are outstanding, shall
not permit, or take any action to cause, the dissolution, liquidation, termination or
winding up of the Trust, unless (i) a Trust Special Redemption Event or a Company Special
Redemption Event occurs or (ii) the Company is in liquidation and the approval of any
necessary regulatory authorities to such action has been received.



ARTICLE 5

THE TRUST COMMON SECURITYHOLDER




          Section 5.01. Purchase of Trust Common Security. On the Closing Date, the Bank shall purchase
the Trust Common Security issued by the Trust, for an amount at least equal to U.S.$25, at the same
time as the Trust Preferred Securities are sold.




ARTICLE 6

TRUSTEES




          Section 6.01. Number of Trustees. The number of Trustees initially shall be five (5), and:





     (a) At any time before the issuance of any Trust Securities, the Bank may, by written
instrument, increase or decrease the number of Trustees (subject to Section 6.03(a)); and




     (b) After the issuance of any Trust Securities, the number of Trustees may be increased
or decreased by vote of the Holder of the Trust Common Security at a meeting of the Holder
of the Trust Common Security; provided, however, that the number of Trustees shall in no
event be less than three (3); provided, further that at all times (i) if required by the
Delaware Statutory Trust Act, one Trustee shall be the Delaware Trustee; (ii) there shall be
at least one Trustee who is an employee or officer of, or is affiliated with the Bank or a
Qualified Subsidiary (each, a “Regular Trustee”); and (iii) one Trustee shall be the
Property Trustee to enforce the rights of the Trust Preferred



30









 







Securities, and such Property Trustee may also serve as Delaware Trustee if it meets
the applicable requirements.



          Section 6.02. Delaware Trustee. If required by the Delaware Statutory Trust Act, one Trustee
(the “Delaware Trustee”) shall be:





     (a) A natural person who is a resident of the State of Delaware; or




     (b) If not a natural person, an entity which has its principal place of business in the
State of Delaware, and otherwise meets the requirements of applicable law; provided, that,
if the Property Trustee has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law, then the Property Trustee may also be
the Delaware Trustee (in which case, Section 3.11 hereof shall have no application).




     (c) The initial Delaware Trustee shall be Deutsche Bank Trust Company Delaware, a
Delaware banking corporation.



          Section 6.03. Property Trustee; Eligibility.





     (a) There shall at all times be one Trustee which shall act as Property Trustee which
shall:




          (i) not be an Affiliate of the Bank;




          (ii) be a corporation organized and doing business under the laws of the United States
of America or any State or Territory thereof or of the District of Columbia (or a
corporation or other person permitted by the Commission to act as trustee pursuant to the
Trust Indenture Act), authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by a federal, state, territorial or District of
Columbia authority;




          (iii) have at all times a combined capital and surplus of at least 50 million U.S.
dollars (U.S.$50,000,000), and if such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or examining authority
referred to in clause (ii) above, then for the purposes of this Section 6.03(a)(iii), the
combined capital and surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.




     (b) If at any time the Property Trustee shall cease to be eligible to so act under
Section 6.03(a) hereof, the Property Trustee shall immediately resign in the manner and with
the effect set forth in Section 6.06(c) hereof.




     (c) If the Property Trustee shall acquire any “conflicting interest” within the meaning
of Section 310(b) of the Trust Indenture Act, the Property Trustee and the Holder of the
Trust Common Security (as if it were the obligor referred to in Section



31









 







310(b) of the Trust Indenture Act) shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.




     (d) The Guarantees shall be deemed to be specifically described in this Agreement for
purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.




     (e) The initial Property Trustee shall be The Bank of New York, a New York banking
corporation.



          Section 6.04. Qualifications of Regular Trustees and Delaware Trustee Generally. Each Regular
Trustee and the Delaware Trustee (unless the Property Trustee also acts as Delaware Trustee) shall
be either a natural person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.




          Section 6.05. Regular Trustees. The initial Regular Trustees shall be John Cipriani, Richard
W. Ferguson and Joseph J. Rice.





     (a) Except as expressly set forth in this Agreement and except if a meeting of the
Regular Trustees is called with respect to any matter over which the Regular Trustees have
power to act, any power of the Regular Trustees may be exercised by, or with the consent of,
any one such Regular Trustee.




     (b) Unless otherwise determined by the Regular Trustees, and except as otherwise
required by the Delaware Statutory Trust Act or applicable law, any one Regular Trustee is
authorized to execute on behalf of the Trust any documents which the Regular Trustees have
the power and authority to cause the Trust to execute pursuant to Section 3.06(c) hereof.



          Section 6.06. Appointment, Removal and Resignation of Trustees.





     (a) Subject to Section 6.06(b) hereof, Trustees may be appointed or removed without
cause at any time:




     (A) until the issuance of any Trust Securities, by written instrument
executed by the Bank; and




     (B) after the issuance of any Trust Securities, by a Majority of the
outstanding Trust Common Security voting as a class at a meeting of the Holder
of the Trust Common Security,



     provided, that the Holders of Trust Common Security shall remove (x) the Property Trustee and
the Delaware Trustee, respectively, in the case of a material breach of representation of the
Property Trustee or the Delaware Trustee, as applicable that is not cured within 60 days after
notice of such breach has been given to the Property Trustee or Delaware Trustee, as applicable,
and (y) the Property Trustee in an event of bankruptcy occurs with respect to the Property Trustee.



32









 





          (b)





          (i) the Trustee that acts as Property Trustee shall not be removed in accordance with
Section 6.06(a) hereof until a successor Trustee possessing the qualifications to act as
Property Trustee under Section 6.03 hereof (a “Successor Property Trustee”) has been
appointed and has accepted such appointment by written instrument executed by such Successor
Property Trustee and delivered to the Regular Trustees and the Sponsor; provided that the
Holder of the Trust Common Security in the case of a removal of the Property Trustee
pursuant to the proviso to clause (a) above shall use its reasonable best efforts to appoint
a Successor Property Trustee within no more than 90 days of such removal;




          (ii) the Trustee that acts as Delaware Trustee shall not be removed in accordance with
Section 6.06(a) hereof until a successor Trustee possessing the qualifications to act as
Delaware Trustee under Section 3.11, Section 6.02 and Section 6.04 hereof (a “Successor
Delaware Trustee”) has been appointed and has accepted such appointment by written
instrument executed by such Successor Delaware Trustee and delivered to the Regular Trustees
and the Sponsor; provided that the Holder of the Trust Common Security in the case of a
removal of the Delaware Trustee pursuant to the proviso to clause (a) above shall use its
reasonable best efforts to appoint a Successor Delaware Trustee within no more than 90 days
of such removal;




          (iii) no such removal of the Property Trustee or the Delaware Trustee shall be
effective until all of the fees, charges, and expenses of such entity have been paid.




     (c) A Trustee appointed to office shall hold office until his successor shall have been
appointed or until his death, removal or resignation. Any Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing signed by the
Trustee and delivered to the Sponsor and the Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein; provided, however, that:



          (i) no such resignation of the Trustee that acts as the Property Trustee shall be
effective:





     (A) until a Successor Property Trustee has been appointed and has accepted
such appointment by instrument executed by such Successor Property Trustee and
delivered to the Trust, the Sponsor and the resigning Property Trustee; or




     (B) until the assets of the Trust have been completely liquidated and the
proceeds thereof distributed to the Holders of the Trust Securities; and




          (ii) no such resignation of the Trustee that acts as the Delaware Trustee shall be
effective until a Successor Delaware Trustee has been appointed and has



33









 







accepted such appointment by instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the resigning Delaware Trustee; and




          (iii) no such resignation of the Property Trustee or the Delaware Trustee shall be
effective until all of the fees, charges, and expenses of such entity have been paid.




          (d) The Holder of the Trust Common Security shall use its best efforts to promptly
appoint a Successor Delaware Trustee or Successor Property Trustee, as the case may be, if
the Property Trustee or the Delaware Trustee delivers an instrument of resignation in
accordance with this Section 6.06.




          (e) If no Successor Property Trustee or Successor Delaware Trustee shall have been
appointed and accepted appointment as provided in this Section 6.06 within 60 days after
delivery to the Sponsor and the Trust of an instrument of removal or resignation, the
Property Trustee or Delaware Trustee, as applicable, resigning or being removed may
petition, at the expense of the Trust, any court of competent jurisdiction for appointment
of a Successor Property Trustee or Successor Delaware Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper and prescribe, appoint a
Successor Property Trustee or Successor Delaware Trustee, as the case may be.




          (f) No Property Trustee or Delaware Trustee shall be liable for the acts or omissions
to act of any Successor Property Trustee or Successor Delaware Trustee, as the case may be.




          (g) Upon termination of this Agreement or removal or resignation of the Property
Trustee or Delaware Trustee, as applicable, pursuant to this Section 6.06, and before the
appointment of any Successor Property Trustee or Successor Delaware Trustee, as applicable,
the Trust shall pay to the Property Trustee or the Delaware Trustee, as applicable, all
amounts to which it is entitled to the date of such termination, removal or resignation.



          Section 6.07. Vacancies among Trustees. If a Trustee ceases to hold office for any reason and
the number of Trustees is not reduced pursuant to Section 6.01 hereof, or if the number of Trustees
is increased pursuant to Section 6.01 hereof, a vacancy shall occur. A resolution certifying the
existence of such vacancy by the Regular Trustees or, if there are more than two, a majority of the
Regular Trustees shall be conclusive evidence of the existence of such vacancy. The vacancy shall
be filled with a Trustee appointed in accordance with Section 6.06 hereof.




          Section 6.08. Effect of Vacancies. The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul the Trust. Whenever a vacancy in the number of Regular Trustees shall occur,
until such vacancy is filled by the appointment of a Regular Trustee in accordance with Section
6.06 hereof, the Regular Trustees in office, regardless of their number, shall have all the powers
granted to the Regular Trustees and shall discharge all the duties imposed upon the Regular
Trustees by this Agreement.





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          Section 6.09. Meetings. If there is more than one Regular Trustee, meetings of the Regular
Trustees shall be held from time to time upon the call of any Regular Trustee. Regular meetings of
the Regular Trustees may be held at a time and place fixed by resolution of the Regular Trustees.
Notice of any in-person meetings of the Regular Trustees shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight courier) not
less than 48 hours before such meeting. Notice of any telephonic meetings of the Regular Trustees
or any committee thereof shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before a meeting. Notices
shall contain a brief statement of the time, place and anticipated purposes of the meeting. The
presence (whether in person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a meeting for the express
purpose of objecting to the transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Agreement, any action of the
Regular Trustees may be taken at a meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with respect to such matter, provided that
a Quorum is present, or without a meeting by the unanimous written consent of the Regular Trustees.
Notwithstanding the foregoing, any and all actions of the Regular Trustees may be taken by the
unanimous written consent of all Regular Trustees.




          Section 6.10. Delegation of Power.





     (a) Any Regular Trustee may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of 21, his or her power for the purpose of
executing any documents contemplated in Section 3.06 hereof including any registration
statement or amendment thereto filed with the Commission or making any other government
filing; and




     (b) The Regular Trustees shall have power to delegate from time to time to such of
their number or to officers of the Trust the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the Regular Trustees or
otherwise as the Regular Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust, as set forth
herein.



          Section 6.11. Merger, Conversion, Consolidation or Succession to Business. Any corporation
into which the Property Trustee or the Delaware Trustee, as the case may be, may be merged or
converted or with which either may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Property Trustee or the Delaware Trustee, as the case may
be, shall be a party, or any corporation succeeding to all or substantially all of the corporate
trust business of the Property Trustee or the Delaware Trustee, as the case may be, shall be the
successor hereunder of the Property Trustee or the Delaware Trustee, as the case may be; provided,
that such corporation shall be otherwise qualified and eligible under this Article 6, without the
execution or filing of any paper or any further act on the part of any of the parties hereto, other
than any such filing as may be required under the Delaware Statutory Trust Act.




35









 








ARTICLE 7




CAPITAL PAYMENTS




          Section 7.01. Capital Payments on or prior to the Tier 1 Qualification Date. The provisions
of this Section 7.01 shall apply solely with respect to Payment Periods ending on or prior to, and
shall have no force or effect with respect to any Payment Period ending after, the Tier 1
Qualification Date.




          (a) Capital Payments on the Trust Preferred Securities shall be due and payable to the extent
Capital Payments on the Class B Preferred Securities have been declared and paid (or have been
deemed declared, even if the deemed declared Capital Payments on the Class B Preferred Securities
were not authorized to be paid due to a lack of Operating Profits at the Company). Holders of the
Trust Preferred Securities shall be entitled to receive due and payable Capital Payments in cash on
the Trust Preferred Securities held by them payable quarterly in arrears on each Payment Date.
Capital Payments on the Trust Preferred Securities payable on each Payment Date shall accrue for
the related Payment Period. Capital Payments on the Trust Preferred Securities shall be cumulative
only to the same extent that Capital Payments on the Class B Preferred Securities are deferred and
constitute Arrears of Payments pursuant to the LLC Agreement. Arrears of Payments on the Class B
Preferred Securities shall be paid only under the circumstances described in the LLC Agreement.




          (b) For each Payment Period, Capital Payments shall accrue on the Liquidation Preference
Amount of each Trust Preferred Security at a fixed rate per annum equal to the Stated Rate,
calculated on the basis of a 360-day year of twelve 30-day months.




          (c) If any Payment Date or redemption date falls on a day that is not a Business Day, the
amounts payable on such Payment Date or redemption date will be paid on the next succeeding
Business Day, without adjustment, interest or further payment as a result of such delay in payment.




          (d) Capital Payments, Arrears of Payments and other distributions on the Trust Preferred
Securities shall be paid out of, and amounts available to the Trust for such payments shall be
limited to, amounts received by the Trust from the Company with respect to the Class B Preferred
Securities pursuant to the provisions of the LLC Agreement and from the Guarantor pursuant to the
Class B Preferred Guarantee or the Trust Preferred Guarantee (including payments by the Guarantor
under the Trust Preferred Guarantee to fund Capital Payments on the Trust Preferred Securities in
the event of non-payment of deemed declared Capital Payments on the Class B Preferred Securities
due to a lack of Operating Profits at the Company).




          (e) Each Capital Payment shall be payable to the Holders of record as they appear on the
Register on the corresponding record date. The record dates for the Trust Preferred Securities
shall be (A) for Global Trust Preferred Certificates, the end of the Business Day immediately
preceding the relevant Payment Date and (B) for Definitive Trust Preferred Certificates, the end of
business of the 15th Business Day prior to the relevant Payment Date.




36









 





          (f) If and to the extent that the Company makes a distribution on the Class B Preferred
Securities held by the Property Trustee or the Bank makes a payment under the Class B Preferred
Guarantee (the amount of any such distribution or payment being a “Payment Amount”), the Holder of
the Trust Common Security shall be entitled to receive a pro rata portion of such Payment Amount
if, as and when funds are held by the Property Trustee in a Property Account; provided, however,
upon the liquidation of the Trust and during the continuance of a default under the Initial
Obligation or the Substitute Obligations or a failure by the Bank to perform any obligation under
the Class B Preferred Guarantee, holders of the Trust Preferred Securities will have a preference
over the holder of the Trust Common Security with respect to payments of Capital Payments and other
distributions and amounts upon redemption or liquidation of the Trust.




          (g) All payments on the Trust Preferred Securities and any payment upon redemption or
liquidation thereof, will 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, levied or
collected by or on behalf of the United States or Germany or, during any period in which any
Substitute Obligations are outstanding, the jurisdiction of residence of any obligor on such
Substitute Obligations (or any jurisdiction from which payments are made) (each, a “Relevant
Jurisdiction”) or by or on behalf of any political subdivision or authority therein or thereof
having the power to tax (collectively, “Withholding Taxes”), unless such deduction or withholding
is required by law. In such event, the Trust will pay, as additional Capital Payments (or Arrears
of Payments, as the case may be), such additional amounts (“Additional Amounts”) to the Holders of
the Trust Preferred Securities as may be necessary in order that the net amounts received by the
holders of the Trust Preferred Securities after such deduction or withholding will equal the
amounts that would have been received had no such deduction or withholding been required; provided
however, no such Additional Amounts will be payable in respect of the Trust Preferred Securities:
(i) if and to the extent that the Company is unable to pay corresponding amounts in respect of the
Class B Preferred Securities because such payment would exceed the Distributable Profits of the
Bank for the preceding fiscal year (after subtracting from such Distributable Profits the amount of
Capital Payments on the Class B Preferred Securities and dividends or other distributions or
payments on Parity Capital Securities and Preferred Tier 1 Capital Securities of the Bank, if any,
already paid on the basis of such Distributable Profits on or prior to the date on which such
Additional Amounts will be payable), in which case such Additional Amounts shall be deferred and
will thereupon constitute Arrears of Payments; (ii) with respect to any Withholding Taxes that are
payable by reason of a Holder or beneficial owner of the Trust Preferred Securities having some
connection with the Relevant Jurisdiction other than by reason only of the mere holding or
beneficial ownership of the Trust Preferred Securities; (iii) with respect to any Withholding Taxes
which are deducted or withheld pursuant to (A) European Council Directive 2003/48/EC or any other
European Union Directive or Regulation implementing the conclusions of the ECOFIN Council meeting
of 26-27 November 2000 on the taxation of savings income, or (B) any international treaty or
understanding entered into for the purpose of facilitating cooperation in the reporting and
collection of savings income and to which (x) the United States, and (y) the European Union or
Germany is a party, or (C) any provision of law implementing, or complying with, or introduced to
conform with, such Directive, Regulation, treaty or understanding; or (iv) to the extent such
deduction or withholding can be avoided or reduced if the Holder or beneficial owner of the




37









 




Trust Preferred Securities 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;
provided, however, that the exclusion set forth in this clause (iv) shall not apply if the
certification, information, documentation or other reporting requirement would be materially more
onerous (in form, procedure or substance of information required to be disclosed) to the Holder or
beneficial owner of Trust Preferred Securities than comparable information or other reporting
requirements imposed under U.S. tax law, regulation and administrative practice (such as IRS Forms
W-8 and W-9).




          Section 7.02. Capital Payments after the Tier 1 Qualification Date. The provisions of this
Section 7.02 shall apply solely with respect to Payment Periods ending after, and shall have no
force or effect with respect to any Payment Period ending on or prior to, the Tier 1 Qualification
Date.





     (a) Capital Payments on the Trust Preferred Securities shall be due and payable to the
extent Capital Payments on the Class B Preferred Securities have been declared and paid (or
have been deemed declared, even if the deemed declared Capital Payments on the Class B
Preferred Securities were not authorized to be paid due to a lack of Operating Profits at
the Company). Holders of the Trust Preferred Securities shall be entitled to receive due
and payable Capital Payments in cash on the Trust Preferred Securities held by them, on a
non-cumulative basis, payable quarterly in arrears on each Payment Date. Capital Payments on
the Trust Preferred Securities payable on each Payment Date shall accrue for the related
Payment Period.




     (b) For each Payment Period, Capital Payments shall accrue on the Liquidation
Preference Amount of each Trust Preferred Security at a fixed rate per annum equal to the
Stated Rate, calculated on the basis of a 360-day year of twelve 30-day months.




     (c) If any Payment Date or redemption date falls on a day that is not a Business Day,
the amounts payable on such Payment Date or redemption date will be paid on the next
succeeding Business Day, without adjustment, interest or further payment as a result of such
delay in payment.




     (d) Capital Payments and other distributions on the Trust Preferred Securities shall be
paid out of, and amounts available to the Trust for such payments shall be limited to,
amounts received by the Trust from the Company with respect to the Class B Preferred
Securities pursuant to the provisions of the LLC Agreement and from the Guarantor pursuant
to the Class B Preferred Guarantee or the Trust Preferred Guarantee (including payments by
the Guarantor under the Trust Preferred Guarantee to fund Capital Payments on the Trust
Preferred Securities in the event of non-payment of deemed declared Capital Payments on the
Class B Preferred Securities due to a lack of Operating Profits at the Company).




     (e) Each Capital Payment shall be payable to the Holders of record as they appear on
the Register on the corresponding record date. The record dates for the Trust Preferred
Securities shall be (A) for Global Trust Preferred Certificates, the end of the



38









 




Business Day immediately preceding the relevant Payment Date and (B) for Definitive
Trust Preferred Certificates, the end of business of the 15th Business Day prior
to the relevant Payment Date.





     (f) If and to the extent that the Company makes a distribution on the Class B Preferred
Securities held by the Property Trustee or the Guarantor makes a payment under the Class B
Preferred Guarantee (the amount of any such distribution or payment being a “Payment
Amount”), the Holder of the Trust Common Security shall be entitled to receive a pro rata
portion of such Payment Amount if, as and when funds are held by the Property Trustee in a
Property Account; provided, however, upon the liquidation of the Trust and during the
continuance of a default under the Initial Obligation or the Substitute Obligations or a
failure by the Guarantor to perform any obligation under the Guarantees, holders of the
Trust Preferred Securities will have a preference over the holder of the Trust Common
Security with respect to payments of Capital Payments and other distributions and amounts
upon redemption or liquidation of the Trust.




     (g) The payment of Capital Payments on the Trust Preferred Securities and any amount
payable in liquidation or upon redemption thereof, 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, levied or collected by or on behalf of the United States
or Germany (or any jurisdiction from which payments are made) or, during any period in which
any Substitute Obligations are outstanding, the jurisdiction of residence of any obligor on
such Substitute Obligations (or any jurisdiction from which payments are made) (each, a
“Relevant Jurisdiction”) or by or on behalf of any political subdivision or authority
therein or thereof having the power to tax (collectively, “Withholding Taxes”), unless such
deduction or withholding is required by law. In such event, the Trust will pay, as
additional Capital Payments, such additional amounts (“Additional Amounts”) to the Holders
of the Trust Preferred Securities as may be necessary in order that the net amounts received
by the Holders of the Trust Preferred Securities after such deduction or withholding for or
on account of Withholding Taxes shall equal the amounts that otherwise would have been
received in respect of the Trust Preferred Securities had no such deduction or withholding
been required; provided, however, that no such Additional Amounts shall be payable in
respect of the Trust Preferred Securities:




          (i) if and to the extent that the Company is unable to pay corresponding amounts in
respect of the Class B Preferred Securities because such payment would exceed the
Distributable Profits of the Bank for the preceding fiscal year (after subtracting from such
Distributable Profits the aggregate amount of the Capital Payments on the Class B Preferred
Securities to which such Additional Amounts relates and Capital Payments on the Class B
Preferred Securities theretofore paid and capital payments or dividend or other
distributions payable on Preferred Tier I Securities, if any, pro rata on the basis of such
Distributable Profits);




          (ii) with respect to any Withholding Taxes that are payable by reason of a Holder or
beneficial owner of the Trust Preferred Securities having some connection



39









 






with any Relevant Jurisdiction other than by reason only of the mere holding or
beneficial ownership of the Trust Preferred Securities;




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




          (iv) to the extent such deduction or withholding can be avoided or reduced if the
Holder or beneficial owner of the Trust Preferred Securities 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; provided, however, that the exclusion
set forth in this clause (iv) shall not apply if the certification, information,
documentation or other reporting requirement would be materially more onerous (in form,
procedure or substance of information required to be disclosed) to the Holder or beneficial
owner of Trust Preferred Securities than comparable information or other reporting
requirements imposed under U.S. tax law, regulation and administrative practice (such as IRS
Forms W-8 and W-9).



ARTICLE 8




ISSUANCE OF TRUST SECURITIES




          Section 8.01. Designation and General Provisions Regarding Trust Securities.





     (a) The Regular Trustees shall on behalf of the Trust issue one class of preferred
securities representing preferred undivided beneficial ownership interests in the Trust
Estate and one class of common securities representing undivided beneficial ownership
interests in the Trust Estate as follows:




          (i) Trust Preferred Securities. There is hereby designated as one class of preferred
securities the Trust Preferred Securities (the “Trust Preferred Securities”). The Trust
Preferred Securities shall be issued in minimum denomination of a liquidation preference
amount of U.S.$25 per Trust Preferred Security (the “Liquidation Preference Amount”) or
greater integral multiples thereof. The Trust Preferred Securities shall be issued with an
aggregate Liquidation Preference Amount of U.S.$800,000,000. The Global Trust Preferred
Certificates evidencing the Trust Preferred Securities shall be substantially in the form of
Exhibit A-1 to this Agreement, with such changes and additions thereto or deletions
therefrom or in any other manner as is reasonably acceptable to the Regular Trustees (as
evidenced by their execution thereof), and may have such letters, numbers or other marks of
identification or designation and such legends and endorsements as the Regular Trustee may
deem appropriate, or as may be



40









 






required by ordinary usage, custom or practice or as may be requested to comply with
any law or to conform to the rules of any stock exchange on which the Trust Preferred
Securities are listed.




          (ii) Trust Common Security. There is hereby designated as one class of common
securities the Trust Common Security (the “Trust Common Security” and, together with the
Trust Preferred Securities, the “Trust Securities”). The Trust Common Security shall be
issued with an aggregate liquidation amount of U.S.$25. The Trust Common Security
Certificate evidencing the Trust Common Security shall be substantially in the form of
Exhibit B to this Agreement, with such changes and additions thereto or deletions
therefrom, or in any other manner as is reasonably acceptable to the Regular Trustees (as
evidenced by their execution thereof), and may have such letters, numbers or other marks of
identification or designation and such legends and endorsements as the Regular Trustee may
deem appropriate, or as may be required by ordinary usage, custom or practice or as may be
requested to comply with any law.




     (b) The Trust shall issue no securities or other interests in the Trust Estate of the
Trust other than the Trust Preferred Securities and the Trust Common Security.




     Notwithstanding the foregoing, the Company will (if so required by the Bank), from time
to time on or prior to the Payment Date falling closest to the fifth anniversary of the
Issue Date and without the consent of the Trust as the holders of the Class B Preferred
Securities, issue additional Class B Preferred Securities having the same terms as the Class
B Preferred Securities in all respects except for the issue date, the date from which
Capital Payments accrue on the Class B Preferred Securities, the issue price, and any other
deviations required for compliance with applicable law, so as to form a single series with
the Class B Preferred Securities. In such circumstances, and without consent of the holders
of the Trust Preferred Securities, the Trust will issue additional Trust Preferred
Securities having the same terms and conditions as the Trust Preferred Securities in all
respects except for the issue date, the date from which Capital Payments accrue on the Trust
Preferred Securities, the issue price, and any other deviations required for compliance with
applicable law, so as to form a single series with the Trust Preferred Securities, in
consideration for the receipt of such additional Class B Preferred Securities equal to the
aggregate liquidation preference amount of such additional Trust Preferred Securities.




     (c) Each of the Trust Securities shall be signed by a Regular Trustee for the Trust by
manual or facsimile signature. No Trust Security shall be valid or obligatory for any
purposes or entitled to any benefit under this Agreement until authenticated by the manual
signature of an Authorized Officer of the Property Trustee. Such signature shall be
conclusive evidence that the Trust Security has been authenticated and delivered under this
Agreement and entitled to its benefits. All Trust Securities shall be dated the date of
their execution. Trust Securities bearing signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of the Trust or
authenticate on behalf of the Property Trustee, as applicable shall be validly issued
notwithstanding that such individuals or any of them shall have ceased to be so authorized
prior to the delivery of such Trust Securities. Upon a written order of the



41









 






Trust, signed by at least one Regular Trustee, directing the Property Trustee to
authenticate and deliver Trust Securities, the Property Trustee shall authenticate and
deliver the Trust Securities for original issue.




     The Property Trustee is authorized to enter into the agency agreement (the “Agency
Agreement") dated the date hereof with the Bank, the Paying Agent, the Company and the
Trust, and is authorized to appoint as Authenticating Agent the Paying Agent or another
agent acceptable to the Trust to authenticate the Trust Preferred Securities. An
Authenticating Agent may authenticate Trust Preferred Securities whenever the Property
Trustee may do so. Each reference in this Agreement to authentication by the Property
Trustee includes authentication by such Authenticating Agent. An Authenticating Agent has
the same rights as the Property Trustee to transact with the Sponsor or any Affiliate of the
Sponsor. Pursuant to the Agency Agreement, the initial Authenticating Agent shall be
Deutsche Bank Trust Company Americas.




     (d) The consideration received by the Trust for the issuance of the Trust Securities
shall constitute a contribution to the capital of the Trust and shall not constitute a loan
to the Trust.




     (e) Upon issuance of the Trust Securities as provided in this Agreement, the Trust
Securities so issued shall be deemed to be validly issued, fully paid and nonassessable,
subject to Section 11.01 hereof with respect to the Trust Common Security.




     (f) Every Person, by virtue of having become a Holder of a Trust Preferred Security in
accordance with the terms of this Agreement, shall be deemed to have expressly assented and
agreed to the terms of, and shall be bound by, this Agreement.



          Section 8.02. Priority of Payments on Trust Securities. Payment of Capital Payments on, and
other distributions and amounts on redemption of the Trust Securities or liquidation of the Trust
shall be made pro rata among the Trust Common Security and the Trust Preferred Securities based on
the Liquidation Preference Amount and the liquidation amount thereof; provided, however, that upon
the occurrence and during the continuance of a failure to pay interest or additional interest
amounts, if any, under the Initial Obligation or the Substitute Obligations or a failure by the
Bank to perform any obligation under the Trust Preferred Guarantee or the Class B Preferred
Guarantee, no payment of Capital Payments, Arrears of Payments or any other distributions of
amounts, including upon redemption or liquidation of the Trust will be made to the holder of the
Trust Common Security, unless payment in full in cash of all accumulated and unpaid Capital
Payments and Arrears of Payments on, and amounts on redemption of, the Trust Preferred Securities
have been made or provided for.




          Section 8.03. Redemption of Trust Securities.





     (a) Except as set forth in Section 8.02, upon a purchase of the Class B Preferred
Securities by the Company upon redemption or otherwise, the proceeds from such purchase
shall be simultaneously applied to redeem the Trust Securities for an amount equal to $25
per Trust Preferred Security and an amount equal to $25 per Trust Common



42









 






Security, plus Additional Amounts, if any, plus Arrears of Payments, if any, plus any
accumulated and unpaid Capital Payments in respect of the then current Payment Period to but
excluding the date of redemption (the “Redemption Price”). In the event that payment of the
Redemption Price in respect of any Trust Securities is improperly withheld or refused and
not paid, Capital Payments on such Trust Securities shall continue to accrue at the Stated
Rate from the designated Redemption Date to the date of actual payment of the Redemption
Price, in which case the actual payment date shall be considered the Redemption Date for
purposes of calculating the Redemption Price. The Property Trustee shall give prompt notice
to the Holders of the Trust Preferred Securities of the Company’s intention to redeem the
Class B Preferred Securities.




     (b) If, at any time, a Trust Special Redemption Event shall occur and be continuing,
the Regular Trustees shall, within 90 days following the occurrence of such Trust Special
Redemption Event, after consultation with DTC, the Paying Agent and the Property Trustee
dissolve the Trust upon not less than 30 nor more than 60 days’ notice to the Holders of the
Trust Securities, with the result that, after satisfaction of the claims of creditors of the
Trust, if any, Class B Preferred Securities would be distributed on a pro rata basis to the
Holders of the Trust Preferred Securities and the Holder of the Trust Common Security in
liquidation of such Holders’ interest in the Trust; provided, however, that, if, at such
time, the Trust has the opportunity to eliminate, within such 90-day period, the Trust
Special Redemption Event by taking some Ministerial Action, then the Trust shall pursue such
measure in lieu of dissolution.




     (c) If the Class B Preferred Securities are distributed to the Holders of the Trust
Preferred Securities, the Bank shall use its commercially reasonable efforts to cause such
Class B Preferred Securities to be eligible for clearing and settlement through DTC or a
successor clearing agent and to be listed on the New York Stock Exchange or such other
securities exchange or similar organization as the Trust Preferred Securities are then
listed or quoted.




     (d) On the date fixed for any distribution of Class B Preferred Securities, upon
dissolution of the Trust, (i) the Trust Securities shall be deemed to be redeemed and no
longer be deemed to be outstanding and (ii) certificates representing Trust Securities shall
be deemed to represent the Class B Preferred Securities having an aggregate liquidation
preference amount equal to the Liquidation Preference Amount of, and bearing accumulated and
unpaid Capital Payments equal to accumulated and unpaid Capital Payments on, such Trust
Securities until such certificates are presented to the Company or its agent for transfer or
reissuance.




     (e) Unless otherwise provided in this Agreement, the Trust Securities shall not be
redeemable at any time at the option of the Holders of the Trust Securities.




     (f) Any Trust Securities that are redeemed shall be canceled, and not reissued,
following their redemption.



43









 






     (g) No vote or consent of the Holders of any Trust Securities shall be required for the
Trust to redeem and cancel any Trust Securities or distribute Class B Preferred Securities
in accordance with this Agreement and the terms of the Trust Securities.




     Section 8.04. Redemption Procedures.




     (a) Redemption Notice. An irrevocable notice of redemption (including, if applicable,
an irrevocable notice of distribution of Class B Preferred Securities) of the Trust
Securities (a “Redemption Notice”) shall be given by the Trust in the manner set forth in
Section 15.01 hereof to each Holder of Trust Securities to be redeemed not fewer than 30 nor
more than 60 calendar days before the proposed Redemption Date (which, in the case of a
redemption of the Class B Preferred Securities, shall be the same as the Class B Redemption
Date) or such other time period or in such manner as may be required by the relevant
regulatory authorities. A Redemption Notice shall be deemed to be given on the day such
notice is first delivered, telecopied or mailed by first-class mail, registered or certified
postage prepaid, to Holders of the Trust Securities. Each Redemption Notice shall be
addressed to the Holders of the Trust Securities at the address of each such Holder
appearing in the Register. No defect in the Redemption Notice or in the delivery thereof
with respect to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.




     (b) Payment of Redemption Price. Except in the case of a distribution of the Class B
Preferred Securities to the Holders of the Trust Preferred Securities, and provided the
Company or the Guarantor has paid to the Property Trustee a sufficient amount of cash in
connection with the related redemption of Class B Preferred Securities, then by 9:00 a.m.,
New York City time, on the Redemption Date, the Property Trustee shall (i) with respect to
Global Trust Preferred Certificates, irrevocably deposit with DTC funds sufficient to pay
the applicable Redemption Price thereon together with irrevocable instructions to DTC to
make such payment or (ii) with respect to Definitive Trust Preferred Certificates,
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable Redemption
Price thereon, together with irrevocable instructions to the Paying Agent to make such
payment by check mailed to the relevant Holder (at its address in the Register on the
Redemption Date) upon surrender of its Definitive Trust Preferred Certificates.




     (c) Upon satisfaction of the foregoing conditions, all rights of Holders of such Trust
Securities so called for redemption shall cease on the Redemption Date, except the right of
the Holders of such Trust Securities to receive the applicable Redemption Price (without
interest thereon from and after the Redemption Date) or distribution of Class B Preferred
Securities with the applicable liquidation preference amount.



          If any Redemption Date falls on a day that is not a Business Day, payment of all amounts
otherwise payable on such date will be made on the next succeeding Business Day, without
adjustment, interest or further payment as a result of such delay in payment.





     (d) Subject to the foregoing redemption provisions and procedures and applicable law
(including, without limitation, U.S. federal securities law), the Bank or its



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Subsidiaries may at any time and from time to time purchase outstanding Trust Preferred
Securities by tender, in the secondary market or by private agreement.



          Section 8.05. Voting Rights of Trust Preferred Securities.





     (a) Except as shall be otherwise expressly provided in this Agreement or the LLC
Agreement or as otherwise required by the Delaware Statutory Trust Act, the Trust Indenture
Act or other applicable law, the Holders of the Trust Preferred Securities shall have no
right or power to vote on any question or matter or in any proceeding or to be presented at,
or to receive notice of, any meeting of Holders of Trust Securities.




     (b) Notwithstanding that Holders of the Trust Preferred Securities are entitled to vote
or consent under certain circumstances described in this Agreement, any of the Trust
Preferred Securities that are beneficially owned by the Bank, or any of its Subsidiaries or
Affiliates, either directly or indirectly, shall not, in such case, be entitled to vote or
consent and shall, for purposes of such vote or consent, be treated as if such Trust
Preferred Securities were not outstanding, except for the Trust Preferred Securities
purchased or acquired by the Bank or its Subsidiaries or Affiliates in connection with
transactions effected by or for the account of customers of the Bank or any of its
Subsidiaries or Affiliates or in connection with the distribution or trading of or
market-making in connection with such Trust Preferred Securities in the ordinary course of
business; provided, however, that Persons (other than Subsidiaries or Affiliates of the
Bank) to whom the Bank or any of its Subsidiaries or Affiliates have pledged Trust Preferred
Securities may vote or consent with respect to such pledged Trust Preferred Securities
pursuant to the terms of such pledge.




     (c) Subject to the requirement of the Property Trustee obtaining a tax opinion in
certain circumstances set forth in Section 8.05(g) hereof, the Holders of a Majority of the
Trust Preferred Securities have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Property Trustee, or direct the exercise of
any trust or power conferred upon the Property Trustee under this Agreement, including the
right to direct the Property Trustee, as Holder of the Class B Preferred Securities, to (i)
exercise the remedies available to it under the LLC Agreement as a Holder of the Class B
Preferred Securities or (ii) consent to any amendment, modification, or termination of the
LLC Agreement or the Class B Preferred Securities where such consent shall be required;
provided, however, that where a consent or action under the LLC Agreement would require the
consent or action of the Holders of more than 50% of the Class B Preferred Securities
affected thereby, only the Holders of at least the same percentage of the Trust Preferred
Securities may direct the Property Trustee to give such consent or take such action on
behalf of the Trust.




     (d) If the Property Trustee fails to enforce its rights under the Class B Preferred
Securities after a Holder of Trust Preferred Securities has made a written request, such
Holder of Trust Preferred Securities may, to the fullest extent permitted by applicable law,
institute a legal proceeding directly against the Company to enforce the Property Trustee’s
rights under the Class B Preferred Securities without first instituting any legal proceeding
against the Property Trustee, the Trust or any other person or entity.



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     (e) Nothing in this Agreement shall affect the right of a Holder of Trust Preferred
Securities, if the Trust has failed to pay the Redemption Price with respect to Trust
Preferred Securities duly called for redemption, any Capital Payments, including Additional
Amounts, if applicable, that are due and owing, to directly institute a proceeding in such
Holder’s own name against the Trust for enforcement of the Trust’s obligation to make such
payment or against the Guarantor for enforcement of the Trust Preferred Guarantee.




     (f) In the event the consent of the Property Trustee, as the holder of the Class B
Preferred Securities, is required under the LLC Agreement with respect to any amendment,
modification or termination of the LLC Agreement, the Property Trustee shall request the
direction of the Holders of the Trust Securities with respect to such amendment,
modification or termination and shall vote with respect to such amendment, modification or
termination as directed by a Majority of the Trust Securities voting together as a single
class; provided, however, that where a consent under the LLC Agreement would require the
consent of the holders of more than 50% of the Class B Preferred Securities, the Property
Trustee may only give such consent at the direction of the Holders of at least the same
stated percentage of the Trust Securities.




     (g) The Property Trustee shall be under no obligation to take any of the actions
described in Section 8.05(c)(i) or (ii) above unless the Property Trustee has obtained an
opinion of independent tax counsel to the effect that following such action, the Trust will
be classified as a grantor trust for United States federal income tax purposes and each
Holder of the Trust Securities will be treated as owning an undivided beneficial ownership
interest in the Trust Estate.




     (h) Any required vote of Holders of the Trust Preferred Securities may be given at a
separate meeting of Holders of the Trust Preferred Securities convened for such purpose, at
a meeting of all of the Holders of the Trust Securities or pursuant to a written consent.
The Regular Trustees shall cause a notice of any meeting at which Holders of the Trust
Preferred Securities are entitled to vote, or of any matter upon which action may be taken
by written consent of such Holders, to be given to the Holders of the Trust Preferred
Securities in the manner set forth in Section 15.01 hereof. Each such notice shall include
a statement setting forth the following information: (i) the date of such meeting or the
date by which such action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such matter upon
which written consent is sought and (iii) instructions for the delivery of proxies or
consents.




     (i) The voting rights provided pursuant to this Section 8.05 and applicable laws may be
waived by the Holders of the Trust Preferred Securities by written notice to the Property
Trustee and in accordance with applicable laws.




     Section 8.06. Voting Rights of the Trust Common Security.




     (a) Except as shall be otherwise expressly provided in this Agreement or in the LLC
Agreement or as otherwise required by the Delaware Statutory Trust Act, the Trust



46









 






Indenture Act or other applicable law, the Holder of the Trust Common Security shall
have no right or power to vote on any question or matter or in any proceeding or to be
presented at, or to receive notice of, any meeting of Holders of Trust Preferred Securities.
The Holder of the Trust Common Security is entitled, subject to Article 6 hereof, to vote
to appoint, remove or replace any Trustee or to increase or decrease the number of Trustees.




     (b) Only after all Enforcement Events have been cured, waived, or otherwise eliminated
and subject to the requirement of the Property Trustee obtaining a tax opinion in certain
circumstances pursuant to Section 8.06(c), the Holder of the Trust Common Security has the
right to direct the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or direct the exercise of any trust or power conferred
upon the Property Trustee under this Agreement, including the right to direct the Property
Trustee, as holder of the Class B Preferred Security, to (i) exercise the remedies available
to it under the LLC Agreement as a holder of the Class B Preferred Securities (with regard
to the Class B Preferred Securities relating to the Trust Common Security) or (ii) consent
to any amendment, modification, or termination of the LLC Agreement or the Class B Preferred
Securities (with regard to the Class B Preferred Securities relating to the Trust Common
Security) where such consent shall be required.




     (c) The Property Trustee shall be under no obligation to take any of the actions
described in Section 8.06(b)(i) and (ii) above unless the Property Trustee has obtained an
opinion of independent tax counsel to the effect that, following such action, the Trust will
be classified as a grantor trust for United States federal income tax purposes and each
Holder of the Trust Securities will be treated as owning an undivided beneficial ownership
interest in the Trust Estate.




     (d) If the Property Trustee fails to enforce its rights under the Class B Preferred
Securities after a Holder of the Trust Common Security has made a written request, such
Holder of the Trust Common Security may, to the fullest extent permitted by applicable law,
institute a legal proceeding directly against the Company, to enforce the Property Trustee’s
rights under the Class B Preferred Securities without first instituting any legal proceeding
against the Property Trustee or any other person or entity.




     (e) The voting rights provided pursuant to this Section 8.06 and applicable laws may be
waived by the Holder of the Trust Common Security by written notice to the Property Trustee
and in accordance with the applicable laws.



          Section 8.07. Paying Agent. The Trust shall maintain in the Borough of Manhattan, City of New
York, State of New York, an office or agency where the Trust Preferred Securities may be presented
for payment (“Paying Agent”). The Regular Trustees may appoint the Paying Agent and may appoint
one or more additional paying agents in such other locations as they shall determine. The term
“Paying Agent” includes any additional paying agent. Any Paying Agent shall comply with Section
317(b) of the Trust Indenture Act. The Trust may remove any Paying Agent or appoint a successor or
additional Paying Agent on not less than 30 days’ notice to the Holders of the Trust Securities.
The Trust shall notify the Property Trustee of the name and address of any Paying Agent not a party
to this Agreement. If the Trust fails to



47









 







appoint or maintain another entity as Paying Agent, the Property Trustee shall act as such.
The Trust or any of its Affiliates may act as Paying Agent. Deutsche Bank Trust Company Americas
shall initially act as Paying Agent for the Trust Preferred Securities and the Trust Common
Security. Any Paying Agent may resign as Paying Agent upon 30 days’ written notice to the Regular
Trustees.




          Section 8.08. Listing. The Bank shall use its best efforts to cause the Trust Preferred
Securities to be listed on the New York Stock Exchange.




          Section 8.09. Acceptance of Guarantees and Agreements. Each Holder and beneficial owner of the
Trust Preferred Securities, by purchase and holding of its Trust Preferred Securities, is deemed
(i) to agree to the provisions of the Trust Preferred Guarantee, including the subordination
provisions therein, and (ii) to represent and warrant that on each day that it holds Trust
Preferred Securities (or Class B Preferred Securities) either (A) it is not itself, and is not
acquiring any Trust Preferred Securities (or Class B Preferred Securities) with “plan assets” of an
employee benefit plan or other plan subject to the fiduciary responsibility provisions of ERISA, or
Section 4975 of the Code, a governmental plan which is subject to any federal, state or local law
that is substantially similar to such provisions of ERISA or the Code (“Similar Law") or an entity
whose underlying assets include “plan assets” by reason of any such plan’s investment in the entity
or (B) the purchase, holding and redemption of any Trust Preferred Securities (or Class B Preferred
Securities) is exempt by reason of Section 408 (b) (17) of ERISA or U.S. Department of Labor
prohibited transaction class exemption (“PTCE”) 96-23 (for certain transactions determined by
in-house asset managers), PTCE 95-60 (for certain transactions involving insurance company general
accounts), PTCE 91-38 (for certain transactions involving bank collective investment funds), PTCE
90-1 (for certain transactions involving insurance company separate accounts), or PTCE 84-14 (for
certain transactions determined by independent qualified professional asset managers) or similar
exemptions from Similar Law.




ARTICLE 9

TERMINATION AND LIQUIDATION OF THE TRUST




          Section 9.01. Dissolution of Trust.




          (a) The Trust shall dissolve:





               (i) upon the bankruptcy, insolvency or dissolution of the Bank;




               (ii) upon the filing of a certificate of dissolution or its equivalent with respect to
the Company;




               (iii) upon the entry of a decree of a judicial dissolution of the Company or the Trust;




               (iv) when the Trust Securities shall have been called for redemption and (x) the
applicable Redemption Price shall have been paid to the Holders of the Trust Securities or
(y) in connection with a redemption upon the occurrence of a Trust Special



48









 






Redemption Event, all of the Class B Preferred Securities shall have been distributed
to the Holders of the Trust Securities in exchange for the Trust Securities;




               (v) with the consent thereto of a Majority of the Trust Securities, voting together as
a single class; or




               (vi) before the issuance of any Trust Securities, with the consent of all of the
Regular Trustees and the Sponsor;




provided, that, if a claim has been made under the Trust Preferred Guarantee, the Trust
shall not dissolve until (x) such claim has been satisfied and the proceeds therefrom have
been distributed to the Holders of the Trust Securities or (y) the Class B Preferred
Securities have been distributed to the Holders of the Trust Securities pursuant to Section
9.02 hereof.




     (b) As soon as is practicable after the occurrence of an event referred to in Section
9.01(a) hereof, the Trustees shall file a certificate of cancellation with the office of the
Secretary of State of the State of Delaware.




     (c) The provisions of Section 3.09 hereof and Article 11 hereof shall survive the
termination of the Trust.



          Section 9.02. Liquidation Distribution upon Termination and Dissolution of the Trust. In the
event of any voluntary or involuntary liquidation, dissolution, winding up or termination of the
Trust (other than following a redemption of the Class B Preferred Securities) (the “Trust
Liquidation”), the Holders of the Trust Securities on the date of the Trust Liquidation shall be
entitled to receive, after satisfaction of the Trust’s liabilities to creditors (if any), the Class
B Preferred Securities in an aggregate liquidation preference amount equal to the aggregate
Liquidation Preference Amount or liquidation amount, as applicable, of such Trust Securities, plus
accumulated and unpaid Capital Payments thereon (and Arrears of Payments, if any, and Additional
Amounts, if any) in respect of the related Class B Payment Period, and pro rata based on the
respective Liquidation Preference Amount or liquidation amount, as applicable, of the Trust
Securities, the remainder of the Trust Estate of the Trust. The rights of the Holder of the Trust
Common Security under the Class B Preferred Securities received by such Holder upon liquidation of
the Trust to any amounts payable on the Class B Preferred Securities (including pursuant to the
Class B Preferred Guarantee) will be subordinated to rights of the Holders of the Trust Preferred
Securities under Class B Preferred Securities received by such Holders upon liquidation of the
Trust and, upon the Trust Liquidation, such Holder of the exchanged Trust Common Security will
execute and deliver any additional instruments necessary or appropriate to enforce subordination in
favor of such other Holders of the exchanged Trust Preferred Securities.




ARTICLE 10

TRANSFER OF INTERESTS




          Section 10.01. Form and Denomination of Trust Preferred Securities




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     (a) The Trust Preferred Securities shall be issued in the form of one or more fully
registered Global Trust Preferred Certificates, in minimum denomination of U.S.$25 in
Liquidation Preference Amount, or integral multiples thereof, registered in the Register in
the name of Cede & Co., the nominee of DTC, and be deposited with a custodian for DTC.
Definitive Trust Preferred Securities representing individual Trust Preferred Securities
shall not be issued except as provided in Section 10.06 hereof.




     (b) The Global Trust Preferred Certificates will be maintained on the book-entry
deposit system of DTC in accordance with the procedures established by DTC. Beneficial
ownership of such Global Trust Preferred Certificates will be evidenced solely through the
book-entry records system maintained by DTC. Beneficial owners of Global Trust Preferred
Certificates will not be recognized by the Trustees as “Holder” of the Global Trust
Preferred Certificate or the Trust Preferred Security represented thereby, and beneficial
owners of such Global Trust Preferred Certificates will only be able to exercise the rights
of the Holders of Trust Preferred Securities indirectly through DTC and its participants and
shall be subject to any agreements between the beneficial owners and DTC and/or its
participants.




     (c) All of the Trust Preferred Securities issued in accordance with this Agreement
shall be validly issued, fully paid and non-assessable interests in the Trust and shall be
entitled to the benefits of this Agreement.



          Section 10.02. Deemed Security Holders. The Trustees may treat the Person in whose name any
Global Trust Preferred Certificate or the Trust Common Security shall be registered in the Register
as the sole Holder of such Global Trust Preferred Certificate or Trust Common Security, as
applicable, and of the securities represented thereby for purposes of receiving Capital Payments
and for all other purposes whatsoever and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such Global Trust Preferred Certificate or Trust Common
Security or in the securities represented thereby on the part of any Person, whether or not the
Trust shall have actual or other notice thereof.




          Section 10.03. Global Trust Preferred Certificates. Unless and until Definitive Trust
Preferred Certificates have been issued to the Holders of the Trust Preferred Securities pursuant
to Section 10.06:





     (a) the provisions of this Section 10.03 shall be in full force and effect and to the
extent that the provisions of this Section 10.03 conflict with any other provisions of this
Agreement, the provisions of this Section 10.03 shall control;




     (b) the Trust and the Trustees shall be entitled to deal with DTC as the sole Holder of
the Global Trust Preferred Certificates for all purposes of this Agreement (including the
payment of Capital Payments on the Global Trust Preferred Certificates and exercising the
rights of the Holders of Trust Preferred Securities under this Agreement, and receiving
approvals, votes or consents hereunder) and shall have no obligation to the beneficial
owners of the Trust Preferred Securities;



50









 






     (c) the rights of the beneficial owners of the Global Trust Preferred Certificates
shall be exercised only through DTC as Holder of the Global Trust Preferred Certificates and
its participants and shall be subject to any agreement between such beneficial owners and
DTC and/or its participants;




     (d) all Capital Payments and any other payments due on account of or with respect to
the Global Trust Preferred Certificate shall be made to DTC as provided herein and neither
the Trust nor any Trustee nor any agent of any of them shall have any responsibility or
liability for the disbursement of such payments by DTC or any participant to beneficial
owners of Global Trust Preferred Certificates;




     (e) transfers of beneficial ownership of such Global Trust Preferred Certificates shall
be made on the books and records of DTC and/or its participants;




     (f) solely for the purposes of determining whether the Holders of the requisite amount
of Trust Preferred Securities have voted on any matter provided for in this Agreement, so
long as Definitive Trust Preferred Certificates have not been issued, the Trustees may
conclusively rely on, and shall be fully protected in relying on, any written instrument
(including a proxy) delivered to the Trustees by DTC setting forth the beneficial owners of
the Trust Preferred Securities votes or assigning the right to vote on any matter to any
other Person either in whole or in part; and




     (g) notwithstanding any other provisions of this Agreement, a Global Trust Preferred
Certificate may not be transferred except by DTC in whole and not in part to its successor
as a Clearing Agency or to a nominee or depositary of either thereof.



          Section 10.04. Notices to Clearing Agency. Whenever a notice or other communication to the
Holders of the Trust Preferred Securities is required under this Agreement, unless and until
Definitive Trust Preferred Certificates shall have been issued pursuant to Section 10.06 hereof,
the Regular Trustees shall give all such notices and communications specified herein to be given to
DTC as the registered Holder of the Trust Preferred Securities, and shall have no notice
obligations to the beneficial owners of the Global Trust Preferred Certificate.




          Section 10.05. Appointment of Successor Clearing Agency. If DTC elects to discontinue its
services as clearing agency with respect to the Trust Preferred Securities, the Regular Trustees
shall use their best efforts to appoint a successor to DTC as a Clearing Agency with respect to
such Trust Preferred Securities.




          Section 10.06. Definitive Trust Preferred Certificates. If DTC notifies the Trust that it is
unwilling or unable to continue its services as depositary for the Trust Preferred Securities or
ceases to be a “clearing agency” registered under the Exchange Act and a successor depositary or
clearing agency is not appointed within 90 days after such discontinuance pursuant to Section
10.05, or if the Trust determines in its sole discretion that the Global Trust Preferred
Certificate shall be exchangeable for Definitive Trust Preferred Certificates then:





          (i) Definitive Trust Preferred Certificates shall be prepared by the Property Trustee
on behalf of the Trust with respect to the Trust Preferred Securities;



51









 






          (ii) upon surrender of each Global Trust Preferred Certificate by DTC, accompanied by
registration instructions, the Property Trustee shall cause Definitive Trust Preferred
Certificates to be delivered to those Persons who were beneficial owners of the Trust
Preferred Securities represented by a Global Trust Preferred Certificate, in accordance with
the instructions of DTC. Neither the Trustees nor the Trust shall be liable for any delay
in delivery of such instructions and each of them may conclusively rely on and shall be
protected in relying on, said instructions of DTC. Any Person receiving a Definitive Trust
Preferred Certificate in accordance with this Section 10.06 shall be recognized as a Holder
upon receipt of such Definitive Trust Preferred Certificate and shall be registered in the
Register of the Trust as a Holder of Trust Preferred Securities; and




          (iii) any Capital Payments, Arrears of Payments or other payments due on Definitive
Trust Preferred Certificates will be made by wire, transfer or by check mailed to the
address of the Holder as it appears on the Register on the relevant record date. The final
payment on any Definitive Trust Preferred Certificates, however, will be made only upon
presentation, and surrender thereof at the office of the Paying Agent on a Business Day.
Subject to applicable escheat laws, claims to Capital Payments on Definitive Trust Preferred
Certificates, or amounts payable upon redemption, will become void unless presented for
payment within a period of (i) with respect to Capital Payments, four years from the
relevant Payment Date, or (ii) with respect to amounts payable upon redemption, ten years
from the Redemption Date.



          Section 10.07.
Registration of Trust Securities. The Registrar shall keep or cause to be kept a register for the Trust Securities issued
hereunder (herein called the “Register”) in which, subject to such reasonable regulations as it may
prescribe, the Registrar shall provide for the registration of Trust Securities and of transfers
and exchanges of Trust Securities as herein provided. The Register shall be in written form or
capable of being converted into written form within a reasonable time. The Registrar shall record
on the Register each Trust Security executed and delivered pursuant to this Agreement.



          Section 10.08. Transfer and Exchanges of Trust Securities.





     (a) Trust Securities may only be transferred, in whole or in part, in accordance with
the terms of this Agreement and of the Trust Securities. Any transfer or purported transfer
of any Trust Security not made in accordance with this Agreement shall be null and void.




     (b) Subject to this Article 10 (and, in the case of the Trust Common Security, subject
to Section 4.03(a)), Trust Securities shall be freely transferable.




     (c) The Trustees and the Registrar shall not be required to issue, register the
transfer of, or exchange any Trust Security from and after the opening of business 15 days
before the Redemption Date.



52









 






     (d) No service charge shall be made for any registration of transfer or exchange of a
Trust Security, but the Trustees or the Registrar may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any transfer or
exchange of a Trust Security.




     (e) Title to any Trust Security that is properly endorsed or accompanied by a properly
executed instrument of transfer or endorsement shall be transferable by delivery with the
same effect as in the case of a negotiable instrument.




     (f) Certificates may be transferred upon surrender thereof by the Holder in person or
by a duly authorized attorney, properly endorsed or accompanied by a properly endorsed
instrument of transfer or endorsement, together with evidence of the payment of any transfer
taxes or government charges that may be imposed in relation to such transfer. Upon surrender
for registration of transfer of a Certificate, the Regular Trustees and the Property Trustee
shall cause one or more new Certificates to be executed and authenticated pursuant to the
applicable provisions of this Agreement in the name of the designated transferee or
transferees. Global Trust Preferred Certificates and the Trust Common Security may only be
transferred in whole but not in part. Definitive Trust Preferred Certificates may be
transferred in whole or in part subject to the applicable minimum denomination requirements
under this Agreement. If only part of Definitive Trust Preferred Certificates is
transferred, a new Definitive Trust Preferred Certificate shall be issued to the transferor
within three Business Days after the Registrar receives the Definitive Trust Preferred
Certificate. The new Definitive Trust Preferred Certificate representing the Trust Preferred
Securities that were not transferred shall be delivered to the transferor by uninsured mail
at the risk of the transferor, to the address of the transferor in the Register. The new
Definitive Trust Preferred Securities Certificate representing the Trust Preferred
Securities that were transferred shall be sent to the transferee within three Business Days
after the Trust receives the surrendered Definitive Trust Preferred Securities Certificate
by uninsured mail at the risk of the transferee, to the address specified on the form of
transfer.




     (g) At the option of the Holder, Certificates may be exchanged for other Certificates
in no less than the applicable minimum denominations in a like aggregate Liquidation
Preference Amount or liquidation amount, as applicable. Upon surrender for registration of
exchange of a Certificate, subject to the conditions to transfer set forth in this
Agreement, the Regular Trustees and the Property Trustee shall execute, authenticate and
deliver pursuant to the applicable provisions of this Agreement, a new Certificate of like
aggregate Liquidation Preference Amount or liquidation amount, as applicable, as the
Certificate surrendered for exchange.




     (h) As a condition precedent to the registration of the transfer or exchange of any
Trust Security, the Registrar may require (i) production of proof satisfactory to it as to
the identity and genuiness of any signature, (ii) compliance with such regulations, if any,
as the Trustee or the Registrar may establish not inconsistent with the provisions of this
Agreement and (iii) such other information as the Registrar may reasonably request.



53









 






     (i) Each Certificate surrendered for registration of transfer or exchange shall be
cancelled by the Property Trustee. Except as prohibited by applicable law or regulation, the
Property Trustee or the Registrar may destroy such cancelled Certificate or otherwise
dispose of it in accordance with its usual practices.




     (j) By acceptance of a Certificate, each transferee shall be deemed to have agreed to
be bound by this Agreement.




     (k) The Registrar shall not be responsible for ascertaining whether any transfer
complies with, or otherwise to monitor or determine compliance with, the requirements or
terms of the Securities Act, applicable state securities laws, ERISA, the Code or the 1940
Act; except that if a certificate is specifically required by the terms of this Section
10.08 to be provided to the Registrar by a prospective transferee, the Registrar shall be
under a duty to receive and examine the same to determine whether it conforms substantially
on its face to the applicable requirements of this Section 10.08.



          Section 10.09. Lost or Stolen Trust Securities, Etc. If (i) any mutilated Certificate shall be
surrendered to the Registrar, or if the Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (ii) there shall be delivered to the Registrar,
the Regular Trustee and the Property Trustee such security or indemnity as may be required by them
to hold each of them harmless, then in the absence of notice that such Certificate shall have been
acquired by a bona fide purchaser or, as applicable, any protected purchaser, the Regular Trustees
and the Property Trustee shall make available for delivery, in exchange for or in lieu of any
mutilated, destroyed, lost or stolen Certificate, a new Certificate of a like aggregate liquidation
amount. In connection with the issuance of any new Certificate, the Registrar, the Regular Trustee
or the Property Trustee may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of a Certificate corresponding to
that evidenced by the lost, stolen or destroyed Certificate, as if originally issued, whether or
not the lost, stolen or destroyed Certificate shall be found at any time.




     The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Certificates.



ARTICLE 11

LIMITATION OF LIABILITY OF HOLDERS OF TRUST SECURITIES, TRUSTEES OR OTHERS



          Section 11.01. Liability.





     (a) Except as expressly set forth in this Agreement, the Trust Preferred Guarantee and
the terms of the Trust Securities, the Bank, the Guarantor, the Sponsor and the Trustees
shall not be:



54









 






          (i) personally liable for the return of any portion of the capital contributions (or
any return thereon) of the Holders of the Trust Securities, which shall be made solely from
assets of the Trust; and




          (ii) required to pay to the Trust or to any Holder of the Trust Securities any deficit
upon dissolution of the Trust or otherwise.




     (b) Notwithstanding any other provision herein, the Holder of the Trust Common
Security, by entering into this Agreement, agrees that it shall be liable directly to any
creditor or claimant of or against the Trust for the entire amount of all of the debts and
obligations of the Trust (other than obligations to the Holders of the Trust Securities in
their capacities as Holders) to the extent not satisfied out of the Trust’s assets. This
Section 11.01(b) shall automatically terminate upon (i) the adoption of final or temporary
U.S. federal tax regulations which, if the Trust were not classified as a grantor trust for
U.S. federal income tax purposes, would result in the classification of the Trust as a
partnership for U.S. federal tax purposes without regard to its organic characteristics and
(ii) the taking of such action, if any, by the Trust or the Holders of the Trust Securities
as may be necessary to achieve such classification.




     (c) Pursuant to Section 3803(a) of the Delaware Statutory Trust Act, the Holders of the
Trust Preferred Securities shall be entitled to the same limitation of personal liability
extended to shareholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.




     Section 11.02. Exculpation.




     (a) No Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Trust or any Covered Person for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such Indemnified Person in good faith
on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this Agreement or
by law, except that a Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person’s negligence or willful misconduct with
respect to such acts or omissions.




     (b) An Indemnified Person shall be fully protected in relying in good faith upon the
records of the Trust and upon such information, opinions, reports or statements presented to
the Trust by any Person as to matters the Indemnified Person reasonably believes are within
such other Person’s professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence and amount of assets from which Capital Payments and
Arrears of Payments to Holders of the Trust Securities might properly be paid.




     Section 11.03. Fiduciary Duty.



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     (a) To the extent that, at law or in equity, an Indemnified Person has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or to any other
Covered Person, an Indemnified Person acting under this Agreement shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties
and liabilities of an Indemnified Person otherwise existing at law or in equity, are agreed
by the parties hereto to replace such other duties and liabilities of such Indemnified
Person.




     (b) Unless otherwise expressly provided herein:




          (i) whenever a conflict of interest exists or arises between an Indemnified Person and
any Covered Person; or




          (ii) whenever this Agreement or any other agreement contemplated herein or therein
provides that an Indemnified Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any Holder of the Trust Securities,



     the Indemnified Person shall resolve such conflict of interest, take such action or provide
such terms, considering in each case the relative interest of each party (including its own
interest) to such conflict, agreement, transaction or situation and the benefits and burdens
relating to such interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Agreement or any other agreement contemplated herein
or of any duty or obligation of the Indemnified Person at law or in equity or otherwise.




     (c) Whenever in this Agreement, an Indemnified Person is permitted or required to make
a decision:




          (i) in its “discretion” or under a grant of similar authority, the Indemnified Person
shall be entitled to consider such interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any consideration to any interest of
or factors affecting the Trust or any other Person; or




          (ii) in its “good faith” or under another express standard, the Indemnified Person
shall act under such express standard and shall not be subject to any other or different
standard imposed by this Agreement or by applicable law.



          Section 11.04. Indemnification.




          (a)





          (i) To the fullest extent permitted by applicable law, the Bank shall indemnify and
hold harmless any Bank Indemnified Person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action



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by or in the right of the Trust) by reason of the fact that he is or was a Bank
Indemnified Person against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the Bank Indemnified Person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.




          (ii) The Bank shall indemnify, to the fullest extent permitted by law, any Bank
Indemnified Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Bank Indemnified Person
against expenses (including attorneys’ fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in respect of any claim, issue
or matter as to which such Bank Indemnified Person shall have been adjudged to be liable to
the Trust unless and only to the extent that the Court of Chancery of Delaware or the court
in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such Court of Chancery
or such other court shall deem proper.




          (iii) To the extent that a Bank Indemnified Person shall be successful on the merits or
otherwise (including dismissal of an action without prejudice or the settlement of an action
without admission of liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 11.04(a), or in defense of any claim, issue or
matter therein, he shall be indemnified by the Bank, to the fullest extent permitted by law,
against expenses (including attorneys’ fees) actually and reasonably incurred by him in
connection therewith.




          (iv) Any indemnification under paragraphs (i) and (ii) of this Section 11.04(a) (unless
ordered by a court) shall be made by the Bank only as authorized in the specific case upon a
determination that indemnification of the Bank Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set forth in paragraphs
(i) and (ii). Such determination shall be made (1) by the Regular Trustees by a majority
vote of a Quorum consisting of such Regular Trustees who were not parties to such action,
suit or proceeding, (2) if such a Quorum is not obtainable, or, even if obtainable, if a
Quorum of disinterested Regular Trustees so directs, by independent legal counsel in a
written opinion, or (3) by the Holder of the Trust Common Security.



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          (v) Expenses (including attorneys’ fees) incurred by a Bank Indemnified Person in
defending a civil, criminal, administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 11.04(a) shall be paid by the Bank in
advance of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Bank Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Bank as authorized
in this Section 11.04(a). Notwithstanding the foregoing, no advance shall be made by the
Bank if a determination is reasonably and promptly made (i) by the Regular Trustees by a
majority vote of a Quorum of disinterested Regular Trustees, (ii) if such a Quorum is not
obtainable, or , even if obtainable, if a Quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion or (iii) the Holder of the Trust
Common Security, that, based upon the facts known to the Regular Trustees, counsel or the
Holder of the Trust Common Security at the time such determination is made, such Bank
Indemnified Person acted in bad faith or in a manner that such person did not believe to be
in or not opposed to the best interests of the Trust, or, with respect to any criminal
proceeding, that such Bank Indemnified Person believed or had reasonable cause to believe
his conduct was unlawful. In no event shall any advance be made in instances where the
Regular Trustees, independent legal counsel or the Holder of the Trust Common Security
reasonably determine that such person deliberately breached his duty to the Trust or to the
Holder of the Trust Common Security.




          (vi) The indemnification and advancement of expenses provided by, or granted pursuant
to, the other paragraphs of this Section 11.04(a) shall not be deemed exclusive of any other
rights to which those seeking indemnification and advancement of expenses may be entitled
under any agreement, vote of shareholders or disinterested directors of the Bank or Holders
of the Trust Securities or otherwise. All rights to indemnification under this Section
11.04(a) shall be deemed to be provided by a contract between the Bank and each Bank
Indemnified Person who serves in such capacity at any time while this Section 11.04(a) is in
effect. Any repeal or modification of this Section 11.04(a) shall not affect any rights or
obligations then existing.




          (vii) The Bank or the Trust may purchase and maintain insurance on behalf of any person
who is or was a Bank Indemnified Person against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such, whether or not
the Bank would have the power to indemnify him against such liability under the provisions
of this Section 11.04(a).




          (viii) For purposes of this Section 11.04(a), references to “the Trust” shall include,
in addition to the resulting or surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or merger, so that any person who
is or was a director, trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee, officer, employee
or agent of another entity, shall stand in the same position under the provisions of this
Section 11.04(a) with respect to the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence had continued.




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          (ix) The indemnification and advancement of expenses provided by, or granted pursuant
to, this Section 11.04(a) shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a Bank Indemnified Person and shall inure to
the benefit of the heirs, executors and administrators of such a person.




     (b) The Bank agrees to indemnify the (i) Property Trustee, (ii) the Delaware Trustee,
(iii) any Affiliate of the Property Trustee and (iv) any officers, directors, shareholders,
members, partners, employees, representatives, custodians, nominees or agents of the
Property Trustee and the Delaware Trustee (each of the Persons in (i) through (iv) being
referred to as a “Fiduciary Indemnified Person”) for, and to hold each Fiduciary Indemnified
Person harmless against, any loss, damage, claim, liability or expense including taxes
(other than taxes based on the income of the Trustee) incurred without negligence or bad
faith on the part of the Fiduciary Indemnified Person arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself against or
investigating any claim or liability in connection with the exercise or performance of any
of its powers or duties hereunder. The obligation to indemnify as set forth in this Section
11.04(b) shall survive the satisfaction and discharge of this Agreement.




     Section 11.05. Outside Businesses.



          Any Covered Person, the Bank, the Delaware Trustee and the Property Trustee may engage in or
possess an interest in other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and the Holders of the
Trust Securities shall have no rights by virtue of this Agreement in and to such independent
ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or improper. Any Covered
Person, the Bank, the Delaware Trustee or the Property Trustee shall not be obligated to present
any particular investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and any Covered Person, the
Bank, the Delaware Trustee and the Property Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the Bank or any Affiliate of
the Bank, or may act as depositary for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Bank or its Affiliates.




ARTICLE 12




ACCOUNTING




          Section 12.01. Fiscal Year.




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          The fiscal year of the Trust (“Fiscal Year”) shall be the calendar year, or such other year as
is required by the Code or the Treasury Regulations.




          Section 12.02. Certain Accounting and Reporting Matters.





     (a) At all times during the existence of the Trust, the Regular Trustees shall keep, or
cause to be kept, full books of account, records and supporting documents, which shall
reflect in reasonable detail, each transaction of the Trust. The books of account shall be
maintained on the accrual method of accounting, in accordance with generally accepted
accounting principles, consistently applied. The books of account and the records of the
Trust shall be examined by and reported upon as of the end of each Fiscal Year by a firm of
independent certified public accountants selected by the Regular Trustees.




     (b) Within 90 days after the end of each Fiscal Year, the Property Trustee shall
provide to the Holder of the Trust Common Security the audited financial statements of the
Trust for such Fiscal Year prepared in accordance with generally accepted accounting
principles.




     (c) The Regular Trustees shall cause to be duly prepared and delivered to each of the
Holders of the Trust Securities, any annual U.S. federal income tax information statement
required by the Code, containing such information with regard to the Trust Securities held
by each Holder of the Trust Securities as is required by the Code and the Treasury
Regulations. Notwithstanding any right under the Code to deliver any such statement at a
later date, the Regular Trustees shall use commercially reasonable efforts to deliver all
such statements within 30 days after the end of each Fiscal Year.




     (d) The Regular Trustees shall cause to be duly prepared and filed with the appropriate
taxing authority an annual U.S. federal income tax return on Internal Revenue Service Form
1041 or other applicable form or statement under U.S. federal income tax law, and any other
annual income tax returns required to be filed by the Regular Trustees on behalf of the
Trust with any state or local taxing authority.



          Section 12.03. Banking.




          The Trust shall maintain one or more bank accounts in the name and for the sole benefit of the
Trust; provided, however, that all payments of funds in respect of the Class B Preferred Securities
held by the Property Trustee shall be made directly to a Property Account and no other funds of the
Trust shall be deposited in the Property Accounts. The sole signatories for such accounts shall be
designated by the Regular Trustees; provided, however, that the Property Trustee shall designate
the signatories for the Property Accounts.




ARTICLE 13

AMENDMENTS AND MEETINGS




          Section 13.01. Amendments.





     (a) Except as otherwise provided in this Agreement or by any applicable terms of the
Trust Securities, this Agreement may only be amended or modified by a written



60









 







instrument approved and executed by the Regular Trustees (or, if there are more than
two Regular Trustees, a majority of the Regular Trustees); and in certain circumstances, the
Delaware Trustee and the Property Trustee;




     (b) No amendment shall be made, and any such purported amendment shall be void and
ineffective:




          (i) unless, in the case of any proposed amendment, the Property Trustee and the
Delaware Trustee shall have first received an Officers’ Certificate from each of the Trust
and the Sponsor that such amendment is permitted by, and conforms to, the terms of this
Agreement (including the terms of the Trust Securities);




          (ii) unless, in the case of any proposed amendment which affects the rights, powers,
duties, obligations or immunities of the Property Trustee or the Delaware Trustee, the
Property Trustee or the Delaware Trustee, as the case may be, shall have first received an
opinion of counsel (who may be counsel to the Sponsor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this Agreement (including the terms of the Trust
Securities); and




          (iii) to the extent the result of such amendment would be to:




          (A) cause the Trust to fail to be classified as a grantor trust for
purposes of United States federal income tax;




          (B) cause the Company to be classified as an association or a publicly
traded partnership taxable as a corporation for purposes of United States
federal income tax;




          (C) reduce or otherwise adversely affect the powers of the Property
Trustee; or




          (D) cause the Trust or the Company to be required to register under the
1940 Act.




     (c) In the event the consent of the Property Trustee, as the holder of the Class B
Preferred Securities is required under the LLC Agreement with respect to any amendment,
modification or termination of the LLC Agreement or the Class B Preferred Securities, or
under the Class B Preferred Guarantee with respect to any amendment, modification or
termination of such Class B Preferred Guarantee, the Property Trustee shall request the
direction of the Holders of the Trust Securities with respect to such amendment,
modification or termination and shall vote with respect to such amendment, modification or
termination as directed by a Majority of the Trust Securities voting together as a single
class; provided, however, that where a consent under the LLC Agreement or the Class B
Preferred Guarantee would require the consent of the Holders of a specified percentage of
Class B Preferred Securities in excess of 50%, the Property Trustee may only give such
consent at the direction of the Holders of at least the same percentage in Liquidation
Preference Amount and liquidation amount, as applicable, of



61









 







the Trust Securities; provided, further, that the Property Trustee shall not be
obligated to take any action in accordance with the directions of the Holders of the Trust
Securities under this Section 13.01(c) unless the Property Trustee has obtained an opinion
of independent tax counsel to the effect that as a result of such action, the Trust shall
not fail to be classified as a grantor trust for United States federal income tax purposes;




     (d) At such time after the Trust has issued any Trust Securities that remain
outstanding, any amendment that would (i) materially adversely affect the powers,
preferences or special rights of the Trust Securities whether by way of amendment to this
Agreement or otherwise or (ii) provide for the dissolution, winding up or termination of the
Trust other than pursuant to the terms of this Agreement, may be effected only with the
approval of the Holders of at least a Majority of the Trust Securities affected thereby;
provided, that if any amendment or proposal referred to in Section 13.01(d)(i) hereof would
adversely affect only the Trust Preferred Securities or the Trust Common Security, then only
the affected class shall be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of a Majority of such
class of Trust Securities outstanding;




     (e) Article 7 hereof, Section 11.01(c) hereof and this Section 13.01 shall not be
amended without the consent of all of the Holders of the Trust Securities;




     (f) Article 5 hereof shall not be amended without the consent of the Holders of a
Majority of the Trust Common Security;




     (g) The rights of the Holder of the Trust Common Security under Article 6 hereof to
increase or decrease the number of, and appoint and remove Trustees shall not be amended
without the consent of the Holder of a Majority of the Trust Common Security; and




     (h) Notwithstanding Section 13.01(c) hereof, this Agreement may be amended without the
consent of any Holders of the Trust Securities to:




          (i) cure any ambiguity;




          (ii) correct or supplement any provision in this Agreement that may be defective or
inconsistent with any other provision of this Agreement;




          (iii) add to the covenants, restrictions or obligations of the Bank;




          (iv) conform to any change in the 1940 Act or the Trust Indenture Act or written change
in interpretation or application of the rules and regulations promulgated thereunder by any
legislative body, court, government agency or regulatory authority; and




          (v) modify, eliminate and add to any provision of this Agreement to such extent as may
be necessary or desirable; provided, that such amendments do not have a material adverse
effect on the rights, preferences or privileges of the Holders.



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          Section 13.02. Meetings of the Holders of Trust Securities; Action by Written
Consent.





     (a) Meetings of the Holders of any class of Trust Securities may be called at any time
by the Regular Trustees (or as provided in the terms of the Trust Securities) to consider
and act on any matter on which Holders of such class of Trust Securities are entitled to act
under the terms of this Agreement, the terms of the Trust Securities, the LLC Agreement, the
rules of any stock exchange on which the Trust Preferred Securities are listed or admitted
for trading the Delaware Statutory Trust Act or other applicable law. The Regular Trustees
shall call a meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in Liquidation Preference Amount or liquidation amount, as applicable, of such
class of Trust Securities. Such direction shall be given by delivering to the Regular
Trustees one or more notices in a writing stating that the signing Holders of the Trust
Securities wish to call a meeting and indicating the general or specific purpose for which
the meeting is to be called. Any Holders of the Trust Securities calling a meeting shall
specify in writing the Certificates held by the Holders of the Trust Securities exercising
the right to call a meeting and only those Trust Securities specified shall be counted for
purposes of determining whether the required percentage set forth in the second sentence of
this paragraph has been met.




     (b) Except to the extent otherwise provided in the terms of the Trust Securities, the
following provisions shall apply to meeting of Holders of the Trust Securities:




          (i) notice of any such meeting shall be given to all the Holders of the Trust
Securities having a right to vote thereat at least 7 days and not more than 60 days before
the date of such meeting. Any action that may be taken at a meeting of the Holders of the
Trust Securities may be taken without a meeting if a consent in writing setting forth the
action so taken is signed by the Holders of the Trust Securities owning not less than the
minimum amount of Trust Securities in liquidation amount that would be necessary to
authorize or take such action at a meeting at which all Holders of the Trust Securities
having a right to vote thereon were present and voting. Prompt notice of the taking of
action without a meeting shall be given to the Holders of the Trust Securities entitled to
vote who have not consented in writing. The Regular Trustees may specify that any written
ballot submitted to the Holder for the purpose of taking any action without a meeting shall
be returned to the Trust within the time specified by the Regular Trustees;




          (ii) each Holder of a Trust Security may authorize any Person to act for it by proxy on
all matters in which a Holder of the Trust Securities is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting. No proxy shall be
valid after the expiration of 11 months from the date thereof unless otherwise provided in
the proxy. Every proxy shall be revocable at the pleasure of the Holder of the Trust
Securities executing it. Except as otherwise provided herein, all matters relating to the
giving, voting or validity of proxies shall be governed by the General Corporation Law of
the State of Delaware relating to proxies, and judicial interpretations thereunder, as if
the Trust were a Delaware corporation and the Holders of the Trust Securities were
shareholders of a Delaware corporation;



63









 






          (iii) each meeting of the Holder of the Trust Securities shall be conducted by the
Regular Trustees or by such other Person that the Regular Trustees may designate; and




          (iv) unless the Delaware Statutory Trust Act, this Agreement, the Trust Indenture Act,
the listing rules of any stock exchange on which the Trust Preferred Securities are then
listed for trading or the terms of the Trust Securities otherwise provide, the Regular
Trustees, in their sole discretion, shall establish all other provisions relating to
meetings of Holders of the Trust Securities, including notice of the time, place or purpose
of any meeting at which any matters is to be voted on by any Holders of the Trust
Securities, waiver of any such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements, voting in person or by proxy or any
other matter with respect to the exercise of any such right to vote.



ARTICLE 14

REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE




          Section 14.01. Representations and Warranties of Property Trustee.




          The Trustee that acts as initial Property Trustee represents and warrants to the Trust, to the
Bank and to the Sponsor at the date of this Agreement, and each Successor Property Trustee
represents and warrants to the Trust and the Sponsor at the time of the Successor Property
Trustee’s acceptance of its appointment as Property Trustee that:





     (a) The Property Trustee is a New York banking corporation with trust powers, duly
organized, validly existing and in good standing under the laws of the State of New York,
with trust power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Agreement;




     (b) The execution, delivery and performance by the Property Trustee of the Agreement
has been duly authorized by all necessary corporate action on the part of the Property
Trustee. The Agreement has been duly executed and delivered by the Property Trustee;




     (c) The execution, delivery and performance of the Agreement by the Property Trustee
does not conflict with or constitute a breach of the Articles of Incorporation or By-laws of
the Property Trustee; and




     (d) The Property Trustee, pursuant to this Agreement, shall hold legal title to, and a
valid ownership interest on behalf of the Holders of the Trust Securities, in the Class B
Preferred Securities and agrees that, except as expressly provided or contemplated by this
Agreement, it shall not create, incur or assume, or suffer to exist any mortgage, pledge,
hypothecation, encumbrance, lien or other charge or security interest upon the Class B
Preferred Securities.



          Section 14.02. Representations and Warranties of Delaware Trustee.




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          The Trustee that acts as initial Delaware Trustee represents and warrants to the Trust, to the
Bank and to the Sponsor at the date of this Agreement, and each Successor Delaware Trustee
represents and warrants to the Trust and the Sponsor at the time of the Successor Delaware
Trustee’s acceptance of its appointment as Delaware Trustee that:





     (a) The Delaware Trustee is duly organized, validly existing and in good standing under
the laws of the State of Delaware, with power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, the Agreement;




     (b) The Delaware Trustee has been authorized to perform its obligations under the
Certificate of Trust and this Agreement; and




     (c) The Delaware Trustee is an entity that has its principal place of business in the
State of Delaware.



ARTICLE 15

MISCELLANEOUS




          Section 15.01. Notices.




          All notices provided for in this Agreement shall be in writing, duly signed by the party
giving such notice, and shall be delivered, telecopied or mailed by first-class, registered or
certified mail, as follows:





     (a) If given to the Trust, in care of the Regular Trustees at the Trust’s mailing
address set forth below (or such other address as the Trust may give notice of to the
Holders of the Trust Securities):


Deutsche Bank Contingent Capital Trust II

60 Wall Street

New York, New York 10005



Telecopy No.: (732) 460-7125

Attention: Treasury (mail stop NYC 60-4011)



with a copy to:



Deutsche Bank Contingent Capital Trust II

c/o Deutsche Bank Trust Company Delaware

1011 Centre Road, Suite 200

Wilmington

Delaware 19805





     (b) If given to the Delaware Trustee, at the mailing address set forth below (or such
other address as the Delaware Trustee may give notice of to the other Trustees):



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Deutsche Bank Trust Company Delaware

1011 Centre Road, Suite 200

Wilmington,

Delaware 19805



Telecopy No.: (302) 636-3333

Attention:         Corporate Services Division





     (c) If given to the Property Trustee, at the mailing address set forth below (or such
other address as the Property Trustee may give notice of to the Holders of the Trust
Securities and the other Trustees):


The Bank of New York

101 Barclay Street, Floor 4 East

New York, New York 10286

United States



Telecopy No.: (212) 815-5802

Attention:      Corporate Trust Administration





     (d) If given to the Sponsor, at the mailing address set forth below (or such address as
the Sponsor may give notice of to the Holders of the Trust Securities and the Trustees):


Deutsche Bank Aktiengesellschaft

Taunusanlage 12

60325 Frankfurt am Main

Germany



Telecopy No.: (+49) 69 910-35092

Attention:        Group Treasury





     (e) If given to the Holder of the Trust Common Security, at the mailing address set
forth below (or such other address as the Holder of the Trust Common Security may give
notice of to the Trust):


Deutsche Bank Aktiengesellschaft

Taunusanlage 12

60325 Frankfurt am Main

Germany



Telecopy No.: (+49) 69 910-35092

Attention:        Group Treasury





     (f) If given to the Holders of the Trust Preferred Securities, at the address set forth
in the Register.



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          Notices shall be deemed to have been given when received in person, telecopied with receipt
confirmed, or mailed by first class mail, postage prepaid, except that if a notice or other
document is refused delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.




          Section 15.02. Governing Law.




          This Agreement and the rights of the parties hereunder shall be governed by and construed in
accordance with the laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.




          Section 15.03. Intention of the Parties.




          It is the intention of the parties hereto that the Trust be classified for U.S. federal income
tax purposes as a grantor trust. The provisions of this Agreement shall be interpreted to further
this intention of the parties.




          Section 15.04. Successors and Assigns.




          Whenever in this Agreement any of the parties hereto is named or referred to, the successors
and assigns of such party shall be deemed to be included, and all covenants and agreements in this
Agreement by the Sponsor, the Bank, the Guarantor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed.




          Section 15.05. Partial Enforceability.




          If any provision of this Agreement, or the application of such provision to any Person or
circumstance, shall be held invalid, the remainder of this Agreement, or the application of such
provision to persons or circumstances other than those to which it is held invalid, shall not be
affected thereby.




          Section 15.06. Counterparts.




          This Agreement may contain more than one counterpart of the signature page and this Agreement
may be executed by the affixing of the signature of each of the Trustees and a duly authorized
officer of the Sponsor to one of such counterpart signature pages. All of such counterpart
signature pages shall be read as though one, and they shall have the same force and effect as
though all of the signers had signed a single signature page.




67









 








          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.




	 	 	 	 
	 

	 	REGULAR TRUSTEES
	 
	 	 
	 
	 

	 	 
	 

	 	Name:

Title:
	 
	 	 
	 
	 	 
	 
	 	 
	 

	 	 
	 

	 	Name:

Title:
	 
	 	 
	 
	 	 
	 
	 	 
	 

	 	 
	 

	 	Name:

Title:
	 
	 	 
	 
	 	 






	 	 	 	 	 
	 	THE BANK OF NEW YORK,

        as Property Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	DEUTSCHE BANK TRUST COMPANY DELAWARE,

        as Delaware Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





Amended
& Restated Trust Agreement



 









 





	 	 	 	 	 
	 	DEUTSCHE BANK AKTIENGESELLSCHAFT,

        as the Bank and Guarantor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	DEUTSCHE BANK CONTINGENT CAPITAL LLC II,

        as Sponsor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





Amended
& Restated Trust Agreement



 









 





EXHIBIT A-1




[FORM OF GLOBAL TRUST PREFERRED SECURITY CERTIFICATE]




     THIS CERTIFICATE IS A GLOBAL TRUST PREFERRED CERTIFICATE WITHIN THE MEANING OF THE TRUST
AGREEMENT REFERRED TO HEREINAFTER.



     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (THE “DEPOSITARY”), TO THE TRUST 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 THE DEPOSITARY (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY, AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY), 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.



     TRANSFER OF THIS GLOBAL TRUST PREFERRED CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF THE DEPOSITARY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE TRUST AGREEMENT.



     FURTHER, THE HOLDER HEREOF, BY PURCHASING AND HOLDING THIS CERTIFICATE, WILL BE DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT ON EACH DAY THAT IT HOLDS THE TRUST PREFERRED SECURITIES (OR CLASS B
PREFERRED SECURITIES) EITHER (A) IT IS NOT ITSELF, AND IS NOT ACQUIRING ANY SECURITIES (OR CLASS B
PREFERRED SECURITIES) WITH “PLAN ASSETS” OF, AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN SUBJECT TO
TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), ANY PLAN
OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”), A GOVERNMENTAL PLAN WHICH IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS
SUBSTANTIALLY SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”) OR ANY ENTITY WHOSE
UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY SUCH PLAN’S INVESTMENT IN THE ENTITY OR
(B) THE PURCHASE, HOLDING AND REDEMPTION OF ANY SECURITIES (OR CLASS B PREFERRED SECURITIES) IS
EXEMPT BY REASON OF SECTION 408(B)(17) OF ERISA OR U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION
CLASS EXEMPTION (“PTCE”) 96-23 (FOR CERTAIN TRANSACTIONS DETERMINED BY IN-HOUSE ASSET MANAGERS),
PTCE 95-60 (FOR CERTAIN TRANSACTIONS INVOLVING INSURANCE COMPANY GENERAL ACCOUNTS), PTCE 91-38 (FOR
CERTAIN TRANSACTIONS INVOLVING BANK COLLECTIVE INVESTMENT FUNDS), PTCE 90-1 (FOR CERTAIN
TRANSACTIONS INVOLVING INSURANCE COMPANY



A-3









 







SEPARATE ACCOUNTS), OR PTCE 84-14 (FOR CERTAIN TRANSACTIONS DETERMINED BY INDEPENDENT
QUALIFIED PROFESSIONAL ASSET MANAGERS) OR SIMILAR EXEMPTIONS FROM SIMILAR LAW.



A-4









 





	 	 	 
	CUSIP Number: 25153X208

	 	     Aggregate Liquidation
	ISIN: US25153X2080

	 	     Preference Amount
	 

	 	     U.S.$800,000,000
	 
	 	 
	 

	 	May 23, 2007






CERTIFICATE FOR TRUST PREFERRED SECURITIES OF

DEUTSCHE BANK CONTINGENT CAPITAL TRUST II




Trust Preferred Securities

(Liquidation Preference Amount U.S.$25 per Trust Preferred Security)




     This Trust Preferred Security is a Global Trust Preferred Certificate within the meaning of
the Amended and Restated Trust Agreement, dated as of May 23, 2007 (the “Trust Agreement”), by and
among Deutsche Bank Aktiengesellschaft, Deutsche Bank Contingent Capital LLC II, Deutsche Bank
Trust Company Delaware, as Delaware Trustee, The Bank of New York, as Property Trustee (the
“Property Trustee”), and the Regular Trustees and is registered in the name of The Depository Trust
Company (“DTC”) or a nominee of DTC as owner of an undivided beneficial ownership interest in the
Trust Estate of Deutsche Bank Contingent Capital Trust II (the “Trust”) as described in the Trust
Agreement. This Trust Preferred Security is exchangeable for Trust Preferred Securities registered
in the name of a person other than DTC or its nominee only in the limited circumstances described
in the Trust Agreement and no transfer of this Trust Preferred Security (other than a transfer of
this Trust Preferred Security in whole and not in part by DTC to a nominee of DTC or by a nominee
of DTC to DTC or another nominee of DTC) may be registered except in limited circumstances.



          To the extent not defined herein, the capitalized terms used herein have the meanings assigned
in the Trust Agreement. This Trust Preferred Security is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement, as amended from time to
time, the Holder by virtue of its acceptance hereof assents and by which the Holder is bound. This
Global Trust Preferred Certificate does not purport to summarize the Trust Agreement. Reference is
hereby made to the Trust Agreement (to which this Global Trust Preferred Certificate is subject and
which is incorporated herein by reference in its entirety as fully as if it were restated herein)
for a statement of the duties, obligations, rights, interests and benefits of the registered Holder
hereof and the rights, duties and immunities of the Property Trustee.




          The interest in the Trust Estate evidenced by this Global Trust Preferred Certificate is
limited to the right to receive a pro rata share of the Capital Payments received by the Property
Trustee in respect of the Class B Preferred Securities issued by the Sponsor (the “Class B
Preferred Securities”), at the times and in the manner provided in the Trust Agreement.




          This Global Trust Preferred Certificate is transferable as provided in the Trust Agreement,
subject to the limitations referred to herein and in the Trust Agreement, only upon entry of such
transfer in the Register kept by the Registrar and only upon surrender of this Trust

A-5









 








Preferred Security for transfer to the Registrar together with an endorsement or a written
instrument of transfer (executed by the registered Holder hereof or his or her duly authorized
attorney) in form satisfactory to the Registrar. No transfer of this Global Trust Preferred
Certificate shall be registered unless the transferee satisfies the requirements set forth in the
Trust Agreement.




          No service charge shall be made for registration of transfer or exchange of this Global Trust
Preferred Certificate, but the Registrar, the Property Trustee or any agent may require payment of
a sum sufficient to cover any tax or other governmental charge payable in connection therewith.




          In connection with the involuntary or voluntary liquidation, dissolution, winding-up or
termination of the Trust not involving the redemption of the Class B Preferred Securities in whole
or the liquidation or dissolution of the Sponsor, the Holders shall be entitled to receive
corresponding amounts of Class B Preferred Securities.




          The Holders shall be entitled to receive cash Capital Payments from the date of original
issuance of the Trust Preferred Securities payable quarterly in arrears on February 23, May 23,
August 23 and November 23 of each year, commencing on August 23, 2007, as and when funds are
available to the Trust to make such Capital Payments. With respect to each Payment Period, Capital
Payments shall be payable on the Liquidation Preference Amount of each Trust Preferred Security at
the Stated Rate to the extent funds are available to the Trust to make such Capital Payments.
Capital Payments on the Trust Preferred Securities shall be cumulative with respect to Payment
Periods ending on or prior to the Tier 1 Qualification Date and non-cumulative with respect to
Payment Periods ending thereafter, as provided in the Trust Agreement.




          To
the extent and in the manner described in the Trust Agreement,
Capital Payments on the Trust Preferred Securities shall be
cumulative with respect to Payment Periods ending on or prior to the
Tier 1 Qualification Date (as defined in the Trust Agreement) and
non-cumulative with respect to Payment Periods ending after such Tier
1 Qualification Date.



          The Trust Preferred Securities shall be redeemed if the Class B Preferred Securities are
redeemed. The redemption terms for the Class B Preferred Securities including certain
restrictions, limitations and prohibitions are as described in the LLC Agreement.




          The Holders shall not be entitled to vote except as provided in the Trust Agreement.




          The Trust and each Trustee may treat the Person in whose name this Trust Preferred Security is
registered on the Register as the owner of this Trust Preferred Security for all purposes, and none
of the Trustees shall be affected by any notice to the contrary.




          The Holder, by its acceptance of this Global Trust Preferred Certificate, agrees that the
Trust Preferred Securities evidenced thereby shall look solely to the funds in the Property Account
to the extent available for distribution to the Holder as provided in the Trust Agreement for
payment hereunder and that the Property Trustee in its individual capacity is not personally liable
to the Holder for any amounts payable under this Global Trust Preferred Certificate or the Trust
Agreement or, except as expressly provided in the Trust Agreement, subject to any liability under
the Trust Agreement.




A-6








 








          This Global Trust Preferred Certificate shall be governed by and interpreted in accordance
with the laws of the State of Delaware without regard to principles of conflicts of laws.




A-7









 








          Definitive Trust Preferred Certificates representing individual Trust Preferred Securities
shall not be issued; provided, however, that in the event that DTC or any successors thereto shall
be unable to clear and settle the Trust Preferred Securities, definitive Trust Preferred
Certificate representing individual Trust Preferred Securities may be issued.




          This Global Trust Preferred Certificate shall not be entitled to any benefit under the Trust
Agreement or become valid or obligatory for any purpose until it shall have been executed by the
Property Trustee or an Authenticating Agent appointed pursuant to the Agency Agreement.




          Copies of the Trust Agreement, the Limited Liability Company Agreement, the Trust Preferred
Guarantee and the Class B Preferred Guarantee shall be provided by the Property Trustee to any
Holder upon written request and at the expense of the Holder at the Property Trustee’s corporate
trust office.




          IN WITNESS WHEREOF, the Trust has executed this certificate as of the day and year first
written above.




	 	 	 	 	 
	 	DEUTSCHE BANK CONTINGENT CAPITAL

        TRUST II

 
	 
	 	By:  	 	 
	 	 	as Regular Trustee 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	as Regular Trustee 	 
	 	 	 	 
	 




Global
Trust Preferred Certificate












 







CERTIFICATE OF AUTHENTICATION




          Dated:
____ 2007.




          This is one of the Trust Preferred Securities designated therein referred to in the
within-mentioned Trust Agreement.




	 	 	 	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK,
     
not in its individual capacity, but solely as

Property Trustee

	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	DEUTSCHE BANK TRUST
COMPANY
 AMERICAS, as Authenticating Agent
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Authorized Signatory
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Authorized Signatory	 	 







Global
Trust Preferred Certificate














 





EXHIBIT B




[FORM OF TRUST COMMON SECURITY CERTIFICATE]




     THIS TRUST COMMON SECURITY IS NOT TRANSFERABLE EXCEPT IN ACCORDANCE WITH THE TRANSFER
RESTRICTIONS SET FORTH IN THE TRUST AGREEMENT



     THIS CERTIFICATE REPRESENTS A BENEFICIAL INTEREST IN THE TRUST ESTATE. TRANSFERS OF THIS
CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
TRUST AGREEMENT.



     THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED OR SOLD IN THE
UNITED STATES OR TO OR FOR THE ACCOUNT OF U.S. PERSONS UNLESS SO REGISTERED OR AN EXEMPTION
THEREFROM IS AVAILABLE.



B-1









 





	 	 	 
	 

	 	Aggregate Liquidation
	 

	 	Amount
	Certificate Number CS-1

	 	U.S.$25
	 
	 

	 	      May 23, 2007






CERTIFICATE FOR THE TRUST COMMON SECURITY OF

DEUTSCHE BANK CONTINGENT CAPITAL TRUST II




Trust Common Security

(Liquidation Amount U.S.$ 25 per Trust Common Security)




          DEUTSCHE BANK CONTINGENT CAPITAL TRUST II, a statutory trust formed under the laws of the
State of Delaware (the “Trust”), hereby certifies that Deutsche Bank Aktiengesellschaft (the
“Holder”) is the registered owner of one (1) common security of the Trust representing an undivided
beneficial ownership interest in the Trust Estate designated the Trust Common Security (liquidation
amount U.S.$25 per Trust Common Security) (the “Trust Common Security”). The designation, rights,
powers, privileges, restrictions, preferences and other terms and provisions of the Trust Common
Security represented hereby are set forth in, issued under and shall in all respects be subject to
the provisions of the Amended and Restated Trust Agreement dated as of May 23, 2007, as the same
may be amended from time to time (the “Agreement”). Capitalized terms used herein but not defined
shall have the meaning given them in the Agreement.




Trust
Common Certificate




i









 





          IN WITNESS WHEREOF, the Trust has executed this certificate as of the day and year first
written above.




	 	 	 	 	 
	 	DEUTSCHE BANK CONTINGENT CAPITAL
TRUST II
	 
	 
	 	By:  	 	 
	 	 	as Regular Trustee 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	

 	 
	 	 	as Regular Trustee 	 
	 	 	 	 
	 




Trust
Common Certificate













 





ASSIGNMENT




          FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Common Security
Certificate to:




	 	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	(Insert assignee’s social security or tax identification number
	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	          (Insert address and zip code of assignee)	 	 
	 
	 	 	 	 
	 

	 	and irrevocably appoints	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 






     agent to transfer this Trust Common Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.



	 	 	 	 	 	 	 
	 

	 	Date:
	 	 	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 	 	 
	 

	 	Signature:
	 	 	 	 
	 

	 	 	 	 	 	 





          (Sign exactly as your name appears on the other side of this Trust Common Security
Certificate)





ii