Co. Preferred Sec. Subordinated Gaurantee Agmnt



 





Exhibit 4.6




DEUTSCHE BANK CONTINGENT CAPITAL LLC II




CLASS B PREFERRED SECURITIES

SUBORDINATED GUARANTEE AGREEMENT




DEUTSCHE BANK AKTIENGESELLSCHAFT




AS THE GUARANTOR




DATED AS OF MAY 23, 2007





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I
	 	 	 	 
	 
	DEFINITIONS AND INTERPRETATIONS
	 	 	 	 
	 
	 	 	 	 
	Section 1.01. Definitions and Interpretation
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	TRUST INDENTURE ACT
	 	 	 	 
	 
	 	 	 	 
	Section 2.01. Trust Indenture Act; Application
	 	 	6	 
	 
	 	 	 	 
	Section 2.02. Lists of Holders of Company Preferred Securities
	 	 	6	 
	 
	 	 	 	 
	Section 2.03. Reports by the Class B Preferred Guarantee Trustee
	 	 	6	 
	 
	 	 	 	 
	Section 2.04. Periodic Reports to Class B Preferred Guarantee Trustee
	 	 	6	 
	 
	 	 	 	 
	Section 2.05. Evidence of Compliance with Conditions Precedent
	 	 	7	 
	 
	 	 	 	 
	Section 2.06. Events of Default; Waiver
	 	 	7	 
	 
	 	 	 	 
	Section 2.07. Event of Default; Notice
	 	 	7	 
	 
	 	 	 	 
	Section 2.08. Rights of Holders
	 	 	8	 
	 
	 	 	 	 
	Section 2.09. Conflicting Interests
	 	 	8	 
	 
	 	 	 	 
	Section 2.10. Powers, Duties and Rights of Class B Preferred Guarantee Trustee
	 	 	8	 
	 
	 	 	 	 
	Section 2.11. Certain Rights of Class B Preferred Guarantee Trustee
	 	 	10	 
	 
	 	 	 	 
	Section 2.12. Not Responsible for Recitals or Issuance of Company Preferred Guarantee
	 	 	12	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	GUARANTEE TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	Section 3.01. Class B Preferred Guarantee Trustee; Eligibility
	 	 	12	 
	 
	 	 	 	 
	Section 3.02. Appointment, Removal and Resignation of Class B Preferred Guarantee Trustee
	 	 	13	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	GUARANTEE
	 	 	 	 
	 
	 	 	 	 
	Section 4.01. Guarantee
	 	 	14	 
	 
	 	 	 	 
	Section 4.02. Delivery of Guarantor Certificate
	 	 	15	 
	 
	 	 	 	 
	Section 4.03. Waiver of Notice and Demand
	 	 	15	 
	 
	 	 	 	 
	Section 4.04. Obligations Not Affected
	 	 	15	 
	 
	 	 	 	 
	Section 4.05. Action Against Guarantor
	 	 	16	 
	 
	 	 	 	 





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TABLE OF CONTENTS

(continued)





	 	 	 	 	 
	 	 	Page
	Section 4.06. Independent Obligations
	 	 	16	 
	 
	 	 	 	 
	Section 4.07. Taxes
	 	 	16	 
	 
	 	 	 	 
	Section 4.08. Rights Not Separately Transferable
	 	 	18	 
	 
	 	 	 	 
	Section 4.09. No Assurance of Capital Payment Authorization
	 	 	18	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	LIMITATIONS OF TRANSACTIONS; RANKING
	 	 	 	 
	 
	 	 	 	 
	Section 5.01. Limitation of Transactions
	 	 	18	 
	 
	 	 	 	 
	Section 5.02. Ranking
	 	 	19	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	TERMINATION
	 	 	 	 
	 
	 	 	 	 
	Section 6.01. Termination
	 	 	20	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	INDEMNIFICATION
	 	 	 	 
	 
	 	 	 	 
	Section 7.01. Exculpation
	 	 	20	 
	 
	 	 	 	 
	Section 7.02. Fees and expenses; Indemnification
	 	 	21	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	Section 8.01. Successors and Assigns
	 	 	22	 
	 
	 	 	 	 
	Section 8.02. Amendments
	 	 	22	 
	 
	 	 	 	 
	Section 8.03. Judgment Currency Indemnity
	 	 	23	 
	 
	 	 	 	 
	Section 8.04. Assignment of the Guarantor
	 	 	23	 
	 
	 	 	 	 
	Section 8.05. Notices
	 	 	24	 
	 
	 	 	 	 
	Section 8.06. Governing Law
	 	 	25	 
	 
	 	 	 	 
	Section 8.07. Submission to Jurisdiction
	 	 	25	 
	 
	 	 	 	 
	EXHIBIT A            Form of Guarantor’s Certificate
	 	 	 	 






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CROSS-REFERENCE TABLE1




			
	 	 	 
	Section of Trust Indenture Act of 1939, as amended
	 	Section of Guarantee
	310(a)
	 	3.01(a)
	310(b)
	 	2.09, 3.01(c)
	310(c)
	 	Inapplicable
	311(a)
	 	2.02(b)
	311(b)
	 	2.02(b)
	311(c)
	 	Inapplicable
	312(a)
	 	2.02(a)
	312(b)
	 	2.02(b)
	313
	 	2.03
	314(a)
	 	2.04
	314(b)
	 	Inapplicable
	314(c)
	 	2.05
	314(d)
	 	Inapplicable
	314(e)
	 	2.05
	314(f)
	 	Inapplicable
	315(a)
	 	2.10(d), 2.10(e)
	315(b)
	 	2.07
	315(c)
	 	2.10(d)
	315(d)
	 	2.10(e)
	316(a)
	 	2.08(a), 2.06








 




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





iii 









 





     This CLASS B PREFERRED SECURITIES SUBORDINATED GUARANTEE AGREEMENT (this “Class B
Preferred Guarantee”), dated as of May 23, 2007 is executed and delivered by DEUTSCHE BANK
AKTIENGESELLSCHAFT, a company organized under the laws of the Federal Republic of Germany, with its
principal executive office in Frankfurt am Main, Germany (together with its successors, the
“Guarantor”), and THE BANK OF NEW YORK, in its capacity as Class B Preferred Guarantee
Trustee (as defined herein), for the benefit of the Holders (as defined herein) from time to time
of the Class B Preferred Securities (as defined herein) of Deutsche Bank Contingent Capital LLC II,
a Delaware limited liability company together with its successors, the “Company”).



WITNESSETH




     WHEREAS, pursuant to the LLC Agreement (as defined herein) the Company is issuing on the date
hereof its Class B Preferred Securities, (with a liquidation preference amount of U.S.$25 each)
having an aggregate liquidation preference amount of $800,000,025, representing preferred ownership
interests in the Company (the “Class B Preferred Securities”); and



     WHEREAS, in order to induce the Holders from time to time to purchase the Class B Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to the extent set forth
herein, to pay to the Holders from time to time of the Class B Preferred Securities the Class B
Preferred Guarantee Payments (as defined herein) and to make certain other payments on the terms
and conditions set forth herein;



     NOW, THEREFORE, in consideration of the purchase by the Holders from time to time of Class B
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Class B Preferred Guarantee for the benefit of the Holders
from time to time of the Class B Preferred Securities.



ARTICLE I




DEFINITIONS AND INTERPRETATIONS




          Section 1.01. Definitions and Interpretation. In this Class B Preferred Guarantee,
unless the context otherwise requires:





     (a) capitalized terms used but not defined herein have the meanings assigned to them in
the LLC Agreement;




     (b) a term defined anywhere in this Class B Preferred Guarantee has the same meaning
throughout;




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




     (d) all references in this Class B Preferred Guarantee to Articles and Sections are to
Articles and Sections of this Class B Preferred Guarantee, unless otherwise specified; and



Class B Preferred Securities — Subordinated Guarantee Agreement




 









 






     (e) a reference to the singular includes the plural and vice versa.



     “1940 Act” means the U.S. Investment Company Act of 1940, as amended.



     “Additional Amounts” means an amount paid as additional Capital Payments to the extent
set forth in the LLC Agreement.



     “Affiliate” means, with respect to a specified Person, any Person directly or
indirectly controlling, controlled by, or under common control with the 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.



     “Arrears of Payments” has the meaning specified in the LLC Agreement.



     “Authorized Officer” of a Person means any Person that is authorized to bind such
Person.



     “Business Day” means any day that is not a Saturday or Sunday and that is not a day on
which banking institutions are generally authorized or obligated by law, regulation or executive
order to close in the City of New York.



     “Capital Payments” means periodic distributions on the Class B Preferred Securities
declared (or deemed declared) in accordance with the LLC Agreement.



     “Class B Payment Date” has the meaning specified in the LLC Agreement.



     “Class B Payment Period” means the period from and including the immediately preceding
Class B Payment Date (or the date of original issuance of the Class B Preferred Securities with
respect to the Capital Payments payable on the first Class B Payment Date) to but excluding the
relevant Class B Payment Date.



     “Class B Preferred Guarantee” has the meaning set forth in the preamble to this Class
B Preferred Guarantee.



     “Class B Preferred Guarantee Additional Amounts” has the meaning set forth in Section
4.07.



     “Class B Preferred Guarantee Payments” has the meaning assigned to it in Section 4.01.



     “Class B Preferred Guarantee Trustee” means The Bank of New York, a New York banking
corporation, and its successors, in its capacity as trustee under this Class B Preferred Guarantee,
until a Successor Class B Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Class B Preferred Guarantee by executing a counterpart
hereof and becoming a party hereto, and thereafter means each such Successor Class B Preferred
Guarantee Trustee.



2









 





     “Class B Preferred Securities” has the meaning assigned to it in the first recital to
this Class B Preferred Guarantee.



     “Class B Redemption Date” has the meaning assigned to it in the LLC Agreement.



     “Company” has the meaning assigned to it in the preamble to this Class B Preferred
Guarantee.



     “Company Common Security” means the common security of the Company representing the
limited liability company interest in the Company.



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



     “Event of Default” means (i) a default by the Guarantor on any of its obligations
under Article 4 or (ii) a default by the Guarantor in the performance of any other obligation under
this Class B Preferred Guarantee, and, in the case of (ii), continuance of such default for 60 days
after the Class B Preferred Guarantee Trustee has given notice thereof to the Guarantor.



     “Distributable Profits” has the meaning assigned to it in the LLC Agreement.



     “Guarantor” has the meaning assigned to it in the preamble to this Class B Preferred
Guarantee.



     “Guarantor Certificate” has the meaning assigned to it in Section 4.02.



     “Holder” means any holder, as registered on the books and records of the Company or
the Trust, of Class B Preferred Securities or Trust Preferred Securities, as the case may be;
provided, however, that, in determining whether the Holders of the requisite
percentage of the liquidation preference amount of Class B Preferred Securities have given any
request, notice, consent or waiver hereunder, “Holder” shall not include the Guarantor or
any Affiliate of the Guarantor (other than the Property Trustee) other than with respect to Class B
Preferred Securities purchased or acquired by the Guarantor or its Affiliates in connection with
transactions effected by or for the account of customers of the Guarantor or any of its Affiliates
in connection with the distribution or trading of or market-making in connection with such
securities and except that persons (other than Affiliates of the Guarantor) to whom the Guarantor
or any of its subsidiaries have pledged Class B Preferred Securities may vote or consent with
respect to such pledged securities pursuant to the terms of such pledge.



     “Indemnified Person” means the Class B Preferred Guarantee Trustee, any Affiliate of
the Class B Preferred Guarantee Trustee, or any officer, director, shareholder, member, partner,
employee, representative, nominee, custodian or agent of the Class B Preferred Guarantee Trustee.



     “Initial Holder” means the Property Trustee as the initial Holder of the Class B
Preferred Securities.



3









 





     “LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of
the Company dated as of May 23, 2007 as amended, modified or supplemented from time to time.



     “Majority” means, except as provided by the Trust Indenture Act, a vote by the
Holder(s) of more than 50% of the aggregate liquidation preference amount of the Class B Preferred
Securities.



     “Officers’ Certificate” means, with respect to any Person, a certificate signed by two
Authorized Officers of such Person.



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



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



     “Person” means any individual, corporation, association, partnership (general or
limited), joint venture, trust, estate, limited liability company, or other legal entity or
organization.



     “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
Guarantor, Preferred Tier 1 Subsidiary Securities.



     “Preferred Tier 1 Guarantee” means, at any time, any guarantee issued or support
undertaking entered into by the Guarantor from time to time of any preference shares issued by any
subsidiary of the Guarantor (including the Trust and the Company) from time to time, if such
guarantee or support undertaking then ranks pari passu with the Guarantor’s obligations under this
Class B Preferred Guarantee.



     “Preferred Tier 1 Securities” means, at any time, collectively, the most senior
ranking preference shares or any other instrument issued and outstanding from time to time by (i)
the Guarantor or (ii) any subsidiary of the Guarantor subject to any Preferred Tier 1 Guarantee.



     “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 Guarantor, which, in each
case, then qualify as Tier 1 Regulatory Capital and are subject to any agreement of the Guarantor
that guarantees or otherwise provides support of such preference shares or other instruments.



     “Property Trustee” has the meaning assigned to it in the Trust Agreement.



4









 





     “Redemption Price” has the meaning assigned to it in the LLC Agreement.



     “Registrar” means any bank or trust company appointed to register Class B Preferred
Securities and transfers thereof as provided in the LLC Agreement, and shall initially be The Bank
of New York.



     “Relevant Jurisdiction” has the meaning set forth in the LLC Agreement.



     “Responsible Officer” means, with respect to the Class B Preferred Guarantee Trustee,
any officer within the Corporate Trust Office of the Class B Preferred Guarantee Trustee with
direct responsibility for the administration of the Class B Preferred Guarantee, including any vice
president, any assistant vice president, any trust officer, any secretary, any assistant secretary,
the treasurer, any assistant treasurer or other officer of the Class B Preferred Guarantee Trustee
customarily performing functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer’s knowledge of and familiarity with the particular
subject.



     “Shares” means the ordinary shares of common stock of the Guarantor and any other
shares of the Guarantor’s capital stock ranking junior to the Preferred Tier 1 Securities, if any,
in each case issued by the Guarantor from time to time.



     “Stated Rate” has the meaning assigned to it in the LLC Agreement.



     “Successor Class B Preferred Guarantee Trustee” means a successor Class B Preferred
Guarantee Trustee possessing the qualifications to act as Class B Preferred Guarantee Trustee under
Section 3.01.



     “Trust” means Deutsche Bank Contingent Capital Trust II, a Delaware statutory trust.



     “Trust Agreement” means the amended and restated trust agreement of Deutsche Bank
Contingent Capital Trust II, dated as of May 23, 2007, among the Trustees (as defined therein), the
Company as Sponsor, Deutsche Bank Aktiengesellschaft as holder of the Trust Common Security and the
holders from time to of the Trust Preferred Securities, as from time to time amended, modified or
supplemented.



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



     “Trust Preferred Securities” means the 32,000,000 6.55% trust preferred securities
issued by the Trust.



     “Withholding Tax” means any present or future taxes, duties or governmental charges of
any nature whatsoever imposed, levied or collected by or on behalf of any Relevant Jurisdiction or
by or on behalf of any political subdivision or authority therein or thereof having the power to
tax.



5









 





ARTICLE II




TRUST INDENTURE ACT




          Section 2.01. Trust Indenture Act; Application.





     (a) This Class B Preferred Guarantee is subject to the provisions of the Trust
Indenture Act that are required to be part of this Class B Preferred Guarantee 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 Class B Preferred Guarantee, unless
otherwise defined in this Class B Preferred Guarantee or unless the context otherwise
requires.




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



          Section 2.02. Lists of Holders of Class B Preferred Securities.





     (a) The Class B Preferred Guarantee Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of
Holders of Class B Preferred Securities. If the Class B Preferred Guarantee Trustee is not
the Registrar, the Guarantor shall furnish to the Class B Preferred Guarantee Trustee at
stated intervals of not more than six months, and at such other times as the Class B
Preferred Guarantee Trustee may request in writing, a list, in such form and as of such date
as the Class B Preferred Guarantee Trustee may reasonably require, containing all the
information in the possession or control of the Registrar, the Guarantor or any of its
paying agents other than the Class B Preferred Guarantee Trustee as to the names and
addresses of Holders of Class B Preferred Securities.




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



          Section 2.03. Reports by the Class B Preferred Guarantee Trustee. Within 60 days
after May 1 of each year, the Class B Preferred Guarantee Trustee shall provide to the Holders of
the Class B Preferred Securities and for so long as the Initial Holder is the Holder of the Class B
Preferred Securities, also 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 Class B Preferred Guarantee Trustee shall
also comply with the other requirements of Section 313 of the Trust Indenture Act.




          Section 2.04. Periodic Reports to Class B Preferred Guarantee Trustee. The Guarantor
shall provide to the Class B Preferred Guarantee Trustee and transmit to the Holders of the Class B
Preferred Securities 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, 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 Class B Preferred Guarantee Trustee
is for informational purposes only and the Class B Preferred Guarantee Trustee’s receipt of
such shall


6









 






not constitute constructive notice of any information contained therein or determinable
from information contained therein, including the Guarantor’s compliance with any of its covenants
hereunder (as to which the Class B Preferred Guarantee Trustee is entitled to rely exclusively on
Officers’ Certificates).




          Section 2.05. Evidence of Compliance with Conditions Precedent. The Guarantor shall
provide to the Class B Preferred Guarantee Trustee such evidence of compliance with the conditions
precedent, if any, provided for in this Class B Preferred Guarantee 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) may be given in the form of an
Officers’ Certificate and shall include:





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




     (b) a brief statement of the nature and scope of the examination or investigation
undertaken by each officer in rendering the Officers’ Certificate;




     (c) 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




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



          Section 2.06. Events of Default; Waiver. The Holders of a Majority in liquidation
preference amount of the Class B Preferred Securities may, by vote, on behalf of the Holders of all
of the Class B Preferred Securities, waive any past Event of Default and its consequences (except
an Event of Default in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of each Holder of Class B Preferred Securities, which can only be
waived by all Holders of Class B Preferred Securities), provided that for so long as the Initial
Holder is the Holder of the Class B Preferred Securities, any such waiver also requires the consent
of Holders of a majority in liquidation preference amount of the Trust Preferred Securities or the
consent of all holders of Trust Preferred Securities, as applicable. Upon such waiver, any such
Event of Default shall cease to exist, for every purpose of this Class B Preferred Guarantee, but
no such waiver shall extend to any subsequent Event of Default or impair any right consequent
thereon.




          Section 2.07. Event of Default; Notice.





     (a) The Class B Preferred Guarantee Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to the Holders of the
Class B Preferred Securities (and, for so long as the Initial Holder is the Holder of the
Class B Preferred Securities, also to the Holders of the Trust Preferred Securities),
notices of all Events of Default actually known to a Responsible Officer of the Class B
Preferred Guarantee Trustee, unless such Events of Default have been cured
before the giving of such notice; provided, that, the Class B Preferred
Guarantee Trustee



7









 







shall be protected in withholding such notice if and so long as a
Responsible Officer of the Class B Preferred Guarantee Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of the Class B Preferred
Securities or Trust Preferred Securities.




     (b) The Class B Preferred Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless a Responsible Officer of the Class B Preferred Guarantee Trustee
shall have received written notice, or a Responsible Officer of the Class B Preferred
Guarantee Trustee charged with the administration of this Class B Preferred Guarantee shall
have obtained actual knowledge, of such Event of Default.



          Section 2.08. Rights of Holders.





     (a) The Holders of a Majority in liquidation preference amount of the Class B Preferred
Securities have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Class B Preferred Guarantee Trustee in respect of this Class
B Preferred Guarantee or exercising any trust or power conferred upon the Class B Preferred
Guarantee Trustee under this Class B Preferred Guarantee; provided, that, (1) such
direction shall not be in conflict with any rule of law or with this Class B Preferred
Guarantee, (2) the Class B Preferred Guarantee Trustee may take any other action deemed
proper by the Class B Preferred Guarantee Trustee which is not inconsistent with such
direction, and (3) subject to the provisions of Section 2.10, the Class B Preferred
Guarantee Trustee shall have the right to decline to follow any such direction if a
Responsible Officer of the Class B Preferred Guarantee Trustee shall determine in good faith
that the proceeding so directed would involve the Class B Preferred Guarantee Trustee in
personal liability.




     (b) Notwithstanding any other provision of this Class B Preferred Guarantee, the right
of any Holder of Class B Preferred Securities to receive Class B Preferred Guarantee
Payments if and when due, or to institute suit for the enforcement of any Class B Preferred
Guarantee Payment on and after the date such Class B Preferred Guarantee Payment was due,
shall be absolute and unconditional and shall not be impaired without the consent of such
Holder.




     (c) Notwithstanding any other provision of this Class B Preferred Guarantee, for so
long as the Initial Holder is the Holder of any Class B Preferred Securities, any Holder of
Trust Preferred Securities shall have the right to exercise directly any right or power of a
Holder of Class B Preferred Securities with a corresponding liquidation preference amount
under this Section 2.08.



          Section 2.09. Conflicting Interests. The Trust Preferred Securities Subordinated
Guarantee Agreement shall be deemed to be specifically described in this Class B Preferred
Guarantee for the purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.




          Section 2.10. Powers, Duties and Rights of Class B Preferred Guarantee Trustee.





8









 









     (a) This Class B Preferred Guarantee shall be held by the Class B Preferred Guarantee
Trustee for the benefit of the Holders of the Class B Preferred Securities and for so long
as the Initial Holder is the Holder of the Class B Preferred Securities, also the benefit of
the Holders of the Trust Preferred Securities.




     (b) The Class B Preferred Guarantee Trustee shall not transfer this Class B Preferred
Guarantee to any Person except to a Successor Class B Preferred Guarantee Trustee on
acceptance by such Successor Class B Preferred Guarantee Trustee of its appointment to act
as Successor Class B Preferred Guarantee Trustee. The right, title and interest of the
Class B Preferred Guarantee Trustee shall automatically vest in any Successor Class B
Preferred Guarantee Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Class B Preferred Guarantee Trustee.




     (c) If an Event of Default actually known to a Responsible Officer of the Class B
Preferred Guarantee Trustee has occurred and is continuing, the Class B Preferred Guarantee
Trustee shall be entitled to enforce this Class B Preferred Guarantee for the benefit of the
Holders of the Class B Preferred Securities and, for so long as the Initial Holder is the
Holder of the Class B Preferred Securities, also the benefit of the Holders of the Trust
Preferred Securities.




     (d) The Class B Preferred Guarantee Trustee, before the occurrence of any Event of
Default and after the curing or waiver of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in this Class B
Preferred Guarantee, and no implied covenants shall be read into this Class B Preferred
Guarantee against the Class B Preferred Guarantee Trustee. In case an Event of Default
actually known to a Responsible Officer of the Class B Preferred Guarantee Trustee has
occurred and is continuing, the Class B Preferred Guarantee Trustee shall exercise such of
the rights and powers vested in it by this Class B Preferred Guarantee, 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.




     (e) No provision of this Class B Preferred Guarantee shall be construed to relieve the
Class B Preferred Guarantee 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 Class B Preferred Guarantee Trustee,
the Class B Preferred Guarantee 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 Class B Preferred Guarantee Trustee and conforming to the
requirements of this Class B Preferred Guarantee; provided that in the case of any
such certificates or opinions that by any provision hereof are specifically required to be
furnished to the Class B Preferred Guarantee Trustee, the Class B Preferred Guarantee
Trustee shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Class B Preferred Guarantee (but need not confirm or
investigate the accuracy of any mathematical calculations or other facts stated therein);



9









 






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




     (iii) the Class B Preferred Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the direction of
the Holders of a Majority in liquidation preference amount of the Class B Preferred
Securities relating to the time, method and place of conducting any proceeding for any
remedy available to the Class B Preferred Guarantee Trustee, or the exercise of any trust or
power conferred upon the Class B Preferred Guarantee Trustee under this Class B Preferred
Guarantee; and




     (iv) no provision of this Class B Preferred Guarantee shall require the Class B
Preferred Guarantee 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 Class B Preferred Guarantee Trustee shall have reasonable grounds
for believing that the repayment of such funds or liability, or indemnity, satisfactory to
the Class B Preferred Guarantee Trustee, against such expense, risk or liability, is not
assured to it under the terms of this Class B Preferred Guarantee.



          Section 2.11. Certain Rights of Class B Preferred Guarantee Trustee.





     (a) Subject to the provisions of Section 2.10:




     (i) the Class B Preferred Guarantee Trustee may conclusively rely, and shall be fully
protected in acting or refraining from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed, sent or presented by
the proper party or parties;




     (ii) any direction or act of the Guarantor contemplated by this Class B Preferred
Guarantee shall be sufficiently evidenced by an Officers’ Certificate;




     (iii) whenever, in the administration of this Class B Preferred Guarantee, the Class B
Preferred Guarantee Trustee shall deem it desirable that a matter be proved or established
before taking, suffering or omitting any action hereunder, the Class B Preferred Guarantee
Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, request and conclusively rely upon an Officers’ Certificate which, upon
receipt of such request, shall be promptly delivered by the Guarantor;




     (iv) the Class B Preferred Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any rerecording, refiling or
registration thereof) except as required in the administration of this Class B Preferred
Guarantee;



10









 






     (v) the Class B Preferred Guarantee Trustee may, at the expense of the Guarantor,
consult with counsel of its selection, and the advice or opinion of such counsel with
respect to legal matters 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 Guarantor or the Class B
Preferred Guarantee Trustee or any of their Affiliates and may include any of their
employees. The Class B Preferred Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Class B Preferred Guarantee from any
court of competent jurisdiction;




     (vi) the Class B Preferred Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Class B Preferred Guarantee at the request
or direction of any Holder, unless such Holder shall have provided to the Class B Preferred
Guarantee Trustee such security and indemnity, satisfactory to the Class B Preferred
Guarantee Trustee, against the costs, expenses (including attorneys’ fees and expenses and
the expenses of the Class B Preferred Guarantee 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 Class B Preferred Guarantee
Trustee; provided, that nothing contained in this Section 2.11(a)(vi) shall be taken
to relieve the Class B Preferred Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in it by this Class B
Preferred Guarantee;




     (vii) the Class B Preferred Guarantee 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, but the Class B Preferred
Guarantee 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;




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




     (ix) any action taken by the Class B Preferred Guarantee Trustee or its agents
hereunder shall bind the Holders of the Class B Preferred Securities and for so long as the
Initial Holder is the Holder of the Class B Preferred Securities, also the Holders of the
Trust Preferred Securities, and the signature of the Class B Preferred Guarantee Trustee or
its agents alone shall be sufficient and effective to perform any such action. No third
party shall be required to inquire as to the authority of the Class B Preferred
Guarantee Trustee to so act or as to its compliance with any of the terms and provisions of
this Class B Preferred Guarantee, both of which shall be conclusively evidenced by the Class
B Preferred Guarantee Trustee or its agent taking such action;



11









 






     (x) whenever in the administration of this Class B Preferred Guarantee the Class B
Preferred Guarantee Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Class B Preferred
Guarantee Trustee (i) may request written instructions from the Holders of a Majority in
liquidation preference amount of the Class B Preferred Securities, (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 written instructions; and




     (xi) the Class B Preferred Guarantee Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by this Class B
Preferred Guarantee. No provision of this Class B Preferred Guarantee shall be deemed to
impose any duty or obligation on the Class B Preferred Guarantee 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 Class B Preferred Guarantee
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 Class B Preferred Guarantee Trustee shall be
construed to be a duty.



          Section 2.12. Not Responsible for Recitals or Issuance of Class B Preferred Guarantee.
The recitals contained in this Class B Preferred Guarantee shall be taken as the statements of the
Guarantor, and the Class B Preferred Guarantee Trustee does not assume any responsibility for their
correctness. The Class B Preferred Guarantee Trustee makes no representation as to the validity or
sufficiency of this Class B Preferred Guarantee.




ARTICLE III




GUARANTEE TRUSTEE




          Section 3.01. Class B Preferred Guarantee Trustee; Eligibility.





     (a) There shall at all times be a Class B Preferred Guarantee Trustee which shall:




     (i) not be an Affiliate of the Guarantor; and




     (ii) be a corporation with a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000) 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, and be permitted
by the Securities and Exchange Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by federal, state, territorial or District
of Columbia authority. 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 above, then, for the purposes of this Section 3.01(a)(ii), the combined capital



12









 






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 Class B Preferred Guarantee Trustee shall cease to be eligible
to so act under Section 3.01(a), the Class B Preferred Guarantee Trustee shall immediately
resign in the manner and with the effect set out in Section 3.02(c).




     (c) If the Class B Preferred Guarantee Trustee has or shall acquire any “conflicting
interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Class B
Preferred Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act, subject to the penultimate paragraph thereof.



          Section 3.02. Appointment, Removal and Resignation of Class B Preferred Guarantee
Trustee.





     (a) Subject to Section 3.02(c), the Class B Preferred Guarantee Trustee may be removed
without cause at any time, except when an Event of Default has occurred and is continuing,
by the Guarantor by an instrument in writing executed by the Guarantor and delivered to the
Class B Preferred Guarantee Trustee.




     (b) Subject to Section 3.02(c), the Class B Preferred Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) at any time by an instrument in
writing executed by the Class B Preferred Guarantee Trustee and delivered to the Guarantor.




     (c) Subject to Section 3.02(d), any removal or resignation of the Class B Preferred
Guarantee Trustee shall only take effect once a Successor Class B Preferred Guarantee
Trustee has been appointed and has accepted such appointment by instrument in writing
executed by such Successor Class B Preferred Guarantee Trustee and delivered to the
Guarantor and the resigning or removed Class B Preferred Guarantee Trustee and the Class B
Preferred Guarantee Trustee shall hold office until such an appointment of a Successor Class
B Preferred Guarantee Trustee.




     (d) If no Successor Class B Preferred Guarantee Trustee shall have been appointed and
accepted appointment as provided in Section 3.02(c) within 60 days after delivery of an
instrument of removal or resignation, the Class B Preferred Guarantee Trustee resigning or
being removed may petition, at the expense of the Guarantor, any court of competent
jurisdiction for appointment of a Successor Class B Preferred Guarantee Trustee. Such court
may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a
Successor Class B Preferred Guarantee Trustee.




     (e) No Class B Preferred Guarantee Trustee shall be liable for the acts or omissions to
act of any Successor Class B Preferred Guarantee Trustee.




     (f) The Guarantor shall pay to the Class B Preferred Guarantee Trustee on or prior to
the date of termination of this Class B Preferred Guarantee or the effectiveness of



13









 







any
removal or resignation of the Class B Preferred Guarantee Trustee all amounts to which it is
entitled to the date of such termination, removal or resignation.



ARTICLE IV




GUARANTEE




          Section 4.01. Guarantee.





     (a) The Guarantor irrevocably and unconditionally agrees with the Class B Preferred
Guarantee Trustee and the Holders from time to time of the Class B Preferred Securities,
subject to the limitations set forth in this Class B Preferred Guarantee, to guarantee
payment, on a subordinated basis as provided in Section 5.02, in full to such Holders
(whether such rights under this Class B Preferred Guarantee are asserted by the Class B
Preferred Guarantee Trustee or directly by any such Holder) (without duplication of amounts
theretofore paid to the Holders by the Company), regardless of any defense, right of set-off
or counterclaim that the Company may have or assert, of:




     (i) Capital Payments due and payable on the Class B Preferred Securities on each Class
B Payment Date for the then current Class B Payment Period, if declared by the Board of
Directors of the Company or deemed declared pursuant to the LLC Agreement, in the amounts
and in the manner set forth in the LLC Agreement, including, if the Tier 1 Qualification
Date has not occurred prior to such Class B Payment Date, any Arrears of Payments that are
due and payable and including any Additional Amounts payable with respect to such Capital
Payments and, if applicable, such Arrears of Payments;




     (ii) on each Class B Redemption Date, the Redemption Price for each Class B Preferred
Security called for redemption by the Company in accordance with the provisions of the LLC
Agreement; and




     (iii) upon any voluntary or involuntary dissolution, liquidation or winding up of the
Company, liquidation preference amount of the Class B Preferred Securities, plus accrued and
unpaid Capital Payments on the Class B Preferred Securities in respect of the then current
Class B Payment Period to but excluding the date of liquidation, plus, if the Tier 1
Qualification Date had not occurred as of the Payment Date of any payments with respect to
which this Class B Preferred Guarantee is invoked, Arrears of Payments that are due and
payable, and plus any Additional Amounts payable with respect to such Capital Payments and,
if applicable, such Arrears of Payment;




(collectively, the “Class B Preferred Guarantee Payments”).




All Class B Preferred Guarantee Payments shall include interest accrued on such Class B
Preferred Guarantee Payments, at a rate per annum equal to the Stated Rate of the Class B
Preferred Securities, since the date of the claim asserted under this Class B Preferred
Guarantee relating to such Class B Preferred Guarantee Payments.




     (b) The Guarantor’s obligation to make any of the payments listed in (i) and (ii) of
subsection (a) above may be satisfied by direct payment of the required amounts



14









 







by the
Guarantor to the Holders or by causing the Company to pay such amounts to the Holders.



          Section 4.02. Delivery of Guarantor Certificate. As of each (x) Class B Payment Date
with respect to which the Company has not paid the full amount of Capital Payments at the Stated
Rate payable as contemplated by clause (i) of Section 4.01(a) or (y) Class B Redemption Date with
respect to which the Company has not paid the Redemption Price in full as contemplated by clause
(ii) of Section 4.01(a), the Guarantor shall deliver an Officers’ Certificate to the Class B
Preferred Guarantee Trustee within five Business Days after such Class B Payment Date or Class B
Redemption Date, as applicable, substantially in the form attached as Exhibit A (the “Guarantor
Certificate”).




          Section 4.03. Waiver of Notice and Demand. The Guarantor hereby waives notice of
acceptance of this Class B Preferred Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.




          Section 4.04. Obligations Not Affected. The obligations, covenants, agreements and
duties of the Guarantor under this Class B Preferred Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:





     (a) the release or waiver, by operation of law or otherwise, of the performance or
observance by the Company of any express or implied agreement, covenant, term or condition
relating to the Class B Preferred Securities to be performed or observed by the Company;




     (b) the extension of time for the payment by the Company of all or any portion of the
Capital Payments, Arrears of Payments, Redemption Price, the liquidation preference amount
or other liquidation distribution or any other sums payable under the terms of the Class B
Preferred Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Class B Preferred Securities;




     (c) any failure, omission, delay or lack of diligence on the part of the Holders of the
Class B Preferred Securities (or so long as the Initial Holder is the Holder of the Class B
Preferred Securities, on the part of the Holders of the Trust Preferred Securities) to
enforce, assert or exercise any right, privilege, power or remedy conferred on such Holders
pursuant to the terms of the Class B Preferred Securities (or Trust Preferred Securities, as
applicable) or any action on the part of the Company (or the Trust, if applicable) granting
indulgence or extension of any kind;




     (d) the voluntary or involuntary liquidation, dissolution, sale of any collateral,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Company or any of the assets of the Company;




     (e) any invalidity of, or defect or deficiency in, the Class B Preferred Securities;



15









 






     (f) the settlement or compromise of any obligation guaranteed hereby or hereby
incurred; or




     (g) any other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a guarantor, it being the intent of this Section 4.04 that
the obligations of the Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.



     There shall be no obligation of the Holders of the Class B Preferred Securities or the Trust
Preferred Securities to give notice to, or obtain consent of, the Guarantor with respect to the
happening of any of the foregoing.



          Section 4.05. Action Against Guarantor. The Guarantor waives any right or remedy to
require that any action be brought first against the Company or any other person or entity before
proceeding directly against the Guarantor.




          Section 4.06. Independent Obligations. The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of the Company with respect to the Class B
Preferred Securities, and that the Guarantor shall be liable as principal and as debtor hereunder
to make Class B Preferred Guarantee Payments pursuant to the terms of this Class B Preferred
Guarantee notwithstanding the occurrence of any event referred to in subsections (a) through (g),
inclusive, of Section 4.04. It is further understood that all rights of a Holder of a Class B
Preferred Security (and if and for so long as the Initial Holder is the Holder of the Class B
Preferred Securities, all rights of a Holder of a Trust Preferred Security) against the Guarantor
under this Class B Preferred Guarantee, and all corresponding obligations of the Guarantor to such
Holder, are separate and independent of the rights and corresponding obligations between the
Guarantor and the respective other Holders of the Class B Preferred Securities or Trust Preferred
Securities, as the case may be. This Class B Preferred Guarantee is a guarantee of payment and not
of collection.




          Section 4.07. Taxes. All payments in respect of the Class B Preferred Guarantee
Payments (including interest accrued thereon, if any) by the Guarantor shall be made without
withholding or deduction for or on account of any Withholding Tax, unless the withholding or
deduction of such Withholding Tax is required by law. In that event, the Guarantor shall pay, as
additional Class B Preferred Guarantee Payments, such additional amounts as may be necessary in
order that the net amounts received by a Holder of Class B Preferred Securities or Trust Preferred
Securities after such withholding or deduction for or on account of Withholding Tax will equal the
amount which would have been received in respect of the Class B Preferred Guarantee Payments
(including interest accrued thereon, if any) had no such deduction or withholding been required
(“Class B Preferred Guarantee Additional Amounts”), except that no such Class B Preferred
Guarantee Additional Amounts shall be payable to a Holder with respect to any Class B Preferred
Guarantee Payments,




     (i) if, as of the Class B Payment Date of the most recent payment with respect to which such
Guarantee Payment is payable, the Tier 1 Qualification Date has not occurred, if and to the extent
such payment would exceed the Distributable Profits of the Guarantor for the fiscal year in respect
of which the relevant Capital Payments are payable (after subtracting from such



16









 






Distributable
Profits the amount of capital payments on Parity Capital Securities and Preferred Tier 1 Capital
Securities, if any, already paid on the basis of such Distributable Profits, on or prior to the
date on which such Class B Preferred Guarantee Additional Amounts will be payable), in which case
such Class B Preferred Guarantee Additional Amounts shall be deferred and will thereupon constitute
arrears of payments under this Class B Preferred Guarantee;



     (ii) if, as of the Class B Payment Date of the most recent payment with respect to which such
Guarantee Payment is payable, the Tier 1 Qualification Date has occurred, if and to the extent that
the Guarantor has insufficient Distributable Profits for the preceding fiscal year to make such
payment (determined on the same basis as the authority of the Company to declare Capital Payments
on the Class B Preferred Securities);



     (iii) with respect to any Withholding Taxes that are payable by reason of a Holder or
beneficial owner of Class B Preferred Securities to which such Class B Preferred Guarantee Payments
relate (other than the Property Trustee and the Trust) having some connection with any Relevant
Jurisdiction other than by reason only of the mere holding or beneficial ownership of Class B
Preferred Securities;



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



     (iv) where such deduction or withholding can be avoided or reduced if the Holder or beneficial
owner of Class B Preferred Securities to which such Class B Preferred Guarantee Payments relate
(other than the Property Trustee and the Trust) 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 subclause
shall not apply in respect of any certification, information documentation or other reporting
requirement if such requirement would be materially more onerous to the Holder or beneficial owner
of Class B Preferred Securities (in form, in procedure or in the substance of information to be
disclosed) 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).



     No later than two Business Days prior to the date on which a Class B Preferred Guarantee
Payment is due, the Guarantor shall furnish to the Class B Preferred Guarantee Trustee an Officers’
Certificate instructing the Class B Preferred Guarantee Trustee as to whether any Class B Preferred
Guarantee Payment shall be made to Holders with or without withholding or
deduction for or on account of any Withholding Tax. If any such withholding or deduction
shall be required, then such Officers’ Certificate shall specify by country the amount, if any,
required to be withheld or deducted on such payments to such Holders and shall certify whether
Class B Preferred Guarantee Additional Amounts will be payable with respect to such withholding or



17









 







deduction and the Class B Preferred Guarantee Additional Amount so payable to each Holder. In such
case, the Guarantor shall pay to the Class B Preferred Guarantee Trustee, the Class B Preferred
Guarantee Additional Amounts required to be paid by this Section. The Guarantor covenants to
indemnify the Class B Preferred Guarantee Trustee for, and to hold it harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on its part arising out of
or in connection with actions taken or omitted by it in reliance on any Officers’ Certificate
furnished pursuant to this Section.



          Section 4.08. Rights Not Separately Transferable. This Class B Preferred Guarantee is
a guarantee for the benefit of each Holder from time to time of Class B Preferred Securities. Upon
transfer of any Class B Preferred Securities to a third party, the prior Holder thereof shall no
longer have any rights hereunder with respect to such transferred Class B Preferred Securities.
The rights under this Class B Preferred Guarantee with respect to a Class B Preferred Security are
not separately transferable from such Class B Preferred Security. The Initial Holder hereby
accepts the rights under this Class B Preferred Guarantee held by the Class B Preferred Guarantee
Trustee for the Initial Holder’s benefit as initial purchaser of the Class B Preferred Securities
(who in turn holds the Class B Preferred Securities and related rights under this Class B Preferred
Guarantee for the benefit of the Holders of the Trust Preferred Securities) with the understanding
that such rights shall be transferred by operation of law to any subsequent Holder acquiring a
Class B Preferred Security from the Initial Holder or from a subsequent Holder of Class B Preferred
Securities.




          Section 4.09. No Assurance of Capital Payment Authorization. Nothing in this Class B
Preferred Guarantee shall constitute a guarantee or undertaking of any kind that (i) the Company
will at any time to have sufficient assets, or be authorized pursuant to the LLC Agreement, to
declare a Capital Payment on the Class B Preferred Securities, (ii) any other condition for
declaring such a Capital Payment will be met or (iii) the Company will declare a Capital Payment on
the Class B Preferred Securities if all condition for the declaration of such a Capital Payment are
met.




ARTICLE V




LIMITATIONS OF TRANSACTIONS; RANKING




          Section 5.01. Limitation of Transactions.





     (a) Until the time on the Tier 1 Qualification Date when the Tier 1 Qualification
Election has become effective, and if the Tier 1 Qualification Date does not occur for so
long as any Class B Preferred Securities remain outstanding, the Guarantor shall not give
any guarantee or similar undertaking with respect to, or enter into any other agreement
relating to the support of, or payment of any amounts in respect of, any Group Capital
Securities of any of its affiliates which guarantee or similar undertaking or other support
agreement would rank senior in any regard to this Class B Preferred Guarantee unless this
Class B Preferred Guarantee is amended to give the Holders of the Class B
Preferred Securities such rights and entitlements as are contained in or attached to
such other guarantee, similar undertaking or agreement so that the Guarantor’s obligations
under this Class B Preferred Guarantee rank at least pari passu with, and contain,
substantially equivalent rights of priority as to payment, as any such other guarantee,



18









 







similar undertaking or agreement. “Group Capital Securities”, as used herein, includes any
interests in the capital of any person that rank (A) senior to the preference shares,
Preferred Tier 1 Capital Securities and common shares of such person and (B) junior to all
other obligations of such person that (i) rank senior to the preference shares and Preferred
Tier 1 Capital Securities, if any, of such person and (ii) do not by their terms rank pari
passu with such interests.




     (b) Beginning at and after the time on the Tier 1 Qualification Date when the Tier 1
Qualification Election has become effective, and if the Tier 1 Qualification Date does not
occur for so long as any Class B Preferred Securities remain outstanding, the Guarantor
shall not issue any preference shares ranking senior on liquidation to its obligations under
this Class B Preferred Guarantee or give any guarantee or similar undertaking with respect
to, or enter into any other agreement relating to the support or payment of any amounts in
respect of, any other preference shares (or instruments ranking pari passu with or junior to
preference shares) issued by any other affiliated entity that would rank senior in right of
payment to the Guarantor’s obligations under this Class B Preferred Guarantee, unless this
Class B Preferred Guarantee is amended to give the Holders of the Class B Preferred
Securities such rights and entitlements as are contained in or attached to such other
guarantee, similar undertaking or agreement so that the Guarantor’s obligations under this
Class B Preferred Guarantee rank at least pari passu with, and contain substantially
equivalent rights of priority as to payment as, such guarantee, similar undertaking or
agreement.




     (c) The Guarantor shall pay all amounts required to be paid pursuant to this Class B
Preferred Guarantee in respect of any Capital Payments on the Class B Preferred Securities
payable in respect of the most recent Class B Payment Period prior to any dividend or other
payment (except dividends in the form of Shares) upon the Shares.



          Section 5.02. Ranking. This Class B Guarantee will constitute a general, unsecured and
subordinated obligation of the Guarantor and will rank:





     (a) in the case of a liquidation of the Guarantor as of a date as of which the Tier 1
Qualification Date has not occurred,




     (i) subordinate and junior to all senior and subordinated debt obligations of the
Guarantor (including profit participation rights (Genussscheine)):




     (ii) senior to all preference shares, Preferred Tier 1 Capital Securities and the
common shares of the Guarantor; and




     (iii) unless otherwise expressly provided in the terms thereof, pari passu with any
instrument or contractual obligation of the Guarantor ranking junior to any of the
instruments included in the first clause above and senior to any of the instruments or
contractual obligations of the Guarantor included in clause (ii) above.




     (b) in the case of a liquidation of the Guarantor as of a date as of which the Tier 1
Qualification Date has occurred,



19









 







     (i) subordinate and junior to all senior and subordinated debt obligations of the
Guarantor (including those in respect of bonds, notes and debentures and guarantees in
respect thereof and any profit participation rights (Genussrechte)) that do not expressly
rank pari passu with the obligations of the Guarantor under this Class B Preferred
Guarantee;




     (ii) on parity with the most senior ranking preference shares of the Guarantor, if any,
and with its obligations under any guarantee or support agreement or undertaking relating to
any preference shares or other instrument of any subsidiary of the Guarantor qualifying as
consolidated Tier 1 capital of the Guarantor that does not expressly rank junior to the
obligations of the Guarantor under this Class B Preferred Guarantee; and




     (iii) senior to the (i) Shares, (ii) each class of preference shares of the Guarantor
ranking junior to Preferred Tier 1 Securities of the Guarantor, if any, and any other
instrument of the Guarantor ranking pari passu with such preference shares or junior thereto
and (iii) preference shares or any other instrument of any subsidiary of the Guarantor
subject to any guarantee or support agreement of the Guarantor which guarantee or support
agreement ranks junior to the obligations of the Guarantor under this Class B Preferred
Guarantee.



ARTICLE VI




TERMINATION




          Section 6.01. Termination. This Class B Preferred Guarantee shall terminate upon, and
be of no further force and effect from the earlier of (i) full payment of the Redemption Price of
all Class B Preferred Securities or repurchase and cancellation of all Class B Preferred
Securities, or (ii) upon full payment of the aggregate liquidation preference amount of the Class B
Preferred Securities, plus any accumulated and unpaid Capital Payments thereon, plus Arrears of
Payments, if applicable, plus Additional Amounts, if any, as payable on the Class B Preferred
Securities upon liquidation of the Company pursuant to the LLC Agreement. Notwithstanding the
foregoing, this Class B Preferred Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder of Class B Preferred Securities must return payment of
any sums paid under the Class B Preferred Securities or under this Class B Preferred Guarantee
pursuant to (i) or (ii) above.




ARTICLE VII




INDEMNIFICATION




          Section 7.01. Exculpation.





     (a) No Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Guarantor or any Holder or beneficial owner of Class B
Preferred Securities and any Holder or beneficial owner of the Trust Preferred
Securities) for any loss, liability, expense, damage or claim incurred by reason of any act
or omission performed or omitted by such Indemnified Person in good faith in accordance with
this Class B Preferred Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified Person by



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this Class B Preferred Guarantee or by law, except that an Indemnified Person shall be
liable for any such loss, liability, expense, 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 Guarantor and upon such information, opinions, reports or statements
presented to the Guarantor by any Person as to matters the Indemnified Person reasonably
believes are within such other Person’s professional or expert competence, 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 to Holders of Class B Preferred Securities might properly
be paid.



          Section 7.02. Fees and expenses; Indemnification. The Guarantor agrees to pay to the
Class B Preferred Guarantee Trustee from time to time such compensation as shall be agreed to in
writing between the Guarantor and the Class B Preferred Guarantee Trustee for all services rendered
by it hereunder and to reimburse the Class B Preferred Guarantee Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Class B Preferred Guarantee
Trustee in accordance with any provision of this Class B Preferred Guarantee (including the
reasonable compensation and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its negligence, willful misconduct
or bad faith. The Guarantor agrees to indemnify each Indemnified Person for, and to hold each
Indemnified Person harmless against, any and all loss, liability, damage, claim or expense
(including taxes other than taxes based on the income of any such Indemnified Person) incurred
without negligence or bad faith on its part, 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.




     Promptly after receipt by an Indemnified Person of notice of the commencement of any action,
such Indemnified Person will, if a claim in respect thereof is to be made against the Guarantor,
notify the Guarantor in writing of the commencement thereof; provided that, failure to give
such prompt notice shall not impair the obligations of the Guarantor hereunder except to the extent
that such failure to provide notice materially prejudices the Guarantor. The Guarantor shall be
entitled to appoint counsel of the Guarantor’s choice at the Guarantor’s expense to represent the
Indemnified Persons in any action for which indemnification is sought; provided, however,
that such counsel shall be reasonably satisfactory to the Indemnified Persons. The Guarantor will
not, without the prior written consent of the Indemnified Persons, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought unless such
settlement, compromise or consent includes an unconditional release of each Indemnified Person
from all liability arising out of such claim, action, suit or proceeding.



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     The obligations of the Guarantor under this Section 7.02 shall survive the termination of this
Class B Preferred Guarantee or the earlier resignation or removal of the Class B Preferred
Guarantee Trustee.



ARTICLE VIII




MISCELLANEOUS




          Section 8.01. Successors and Assigns. All guarantees and agreements contained in this
Class B Preferred Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders of the Class B
Preferred Securities and, if and for so long as the Initial Holder is the Holder of the Company
Class B Securities, the Holders of the Trust Preferred Securities, then outstanding.




          Section 8.02. Amendments.




     (a) The Guarantor and the Class B Preferred Guarantee Trustee may, at any time and from time
to time, without the consent of the Holders of the Class B Preferred Securities, enter into one or
more agreements supplemental hereto, in form satisfactory to the Class B Preferred Guarantee
Trustee (i) to make any changes required pursuant to Section 5.01(a) or (b), (ii) to cure any
ambiguity or correct any mistake, (iii) to correct or supplement any provision in this Class B
Preferred Guarantee that may be defective or inconsistent with any other provision of this Class B
Preferred Guarantee, (iv) to add to the covenants, restrictions or obligations of the Guarantor for
the benefit of the Holders of the Class B Preferred Securities or to surrender any right or power
conferred upon the Guarantor under this Class B Preferred Guarantee, (v) to evidence the succession
of another entity to the Guarantor and the assumption by any such successor of the covenants of the
Guarantor stated herein, (vi) to modify or supplement any provision in this Class B Preferred
Guarantee to give effect to any provision made invalid by any changes in the Investment Company
Act, the Trust Indenture Act or the rules or regulations of either such Act or any other applicable
law, (vii) to modify, eliminate and add to any provision of this Class B Preferred Guarantee to
such extent as may be necessary or desirable, or (viii) in connection with the creation of any
series of Class B Preferred Securities and the establishment of the particular terms thereof;
provided that no such amendment made in reliance upon clause (vi) or (vii) above shall have
a material adverse effect on the rights, preferences or privileges of the Holders of the Class B
Preferred Securities (and so long as the Initial Holder is the Holder of the Class B Preferred
Securities, the rights, preferences or privileges of the Holders of the Trust Preferred
Securities).



     (b) This Class B Preferred Guarantee may be modified with the prior approval of the Holders of
not less than a Majority in liquidation preference amount of the Class B Preferred Securities,
provided that, (i) except as provided in clause (a) above, Sections 4.01, 4.02, 4.07 and
the form of Exhibit A may not be amended without the prior approval of each Holder of the Class B
Preferred Securities and (ii) any amendment to reduce the aggregate liquidation
preference amount of Class B Preferred Securities whose Holders must consent to an amendment
must be approved by each Holder of Class B Preferred Securities.



     (c) Any amendment hereof in accordance with this Section 8.02 shall be binding on all Holders
of Class B Preferred Securities.



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     (d) The Class B Preferred Guarantee Trustee shall be entitled to receive, and shall be fully
protected in relying upon, a written opinion of counsel stating that the execution of any amendment
pursuant to this Section 8.02 is authorized or permitted by this Class B Preferred Guarantee,
stating that all requisite consents have been obtained or that no consents are required and stating
that such amendment constitutes the legal, valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its terms, subject to customary exceptions.
Subject to the preceding sentence, the Class B Preferred Guarantee Trustee shall sign such
amendment if the same does not adversely affect the rights of the Class B Preferred Guarantee
Trustee. The Class B Preferred Guarantee Trustee may, but shall not be obligated to, execute any
such amendment that affects the Class B Preferred Guarantee Trustee’s own rights, duties or
immunities under this Class B Preferred Guarantee or otherwise.



          Section 8.03. Judgment Currency Indemnity.





     (a) If, for the purposes of obtaining judgment in any court, it is necessary to convert
an amount due from the Guarantor under any provision of this Class B Preferred Guarantee to
a currency other than U.S. dollars, the parties agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures The Bank of New York could purchase such other currency with U.S.
dollars at its New York office on the second Business Day preceding the day on which final
judgment is given.




     (b) The obligations of the Guarantor in respect of any amount due to the Class B
Preferred Guarantee Trustee or any Holders under this Class B Preferred Guarantee shall,
notwithstanding any judgment in a currency other than U.S. dollars, be discharged only to
the extent that on the Business Day following receipt by the Class B Preferred Guarantee
Trustee or such Holders, as the case may be, of any amount adjudged to be so due in such
other currency the Class B Preferred Guarantee Trustee or such Holders, as the case may be,
may in accordance with normal banking procedures purchase U.S. dollars with such other
currency.




     (c) If the amount of U.S. dollars so purchased is less than the amount originally due
to the Class B Preferred Guarantee Trustee or such Holders, as the case may be, in U.S.
dollars, the Guarantor agrees, to the fullest extent that it may effectively do so, as a
separate obligation and notwithstanding any such judgment, to indemnify the Class B
Preferred Guarantee Trustee or such Holders, as the case may be, against such loss.




     (d) If the amount of dollars so purchased exceeds the amount originally due to the
Class B Preferred Guarantee Trustee or such Holders, as the case may be, in U.S.
dollars, the Class B Preferred Guarantee Trustee and such Holders agree to remit any
remaining amount to the Guarantor.



          Section 8.04. Assignment of the Guarantor. The Guarantor may not assign its
obligations under this Class B Preferred Guarantee, except in the case of a merger or consolidation
where the Guarantor is not the surviving entity, to the surviving entity, or in the case of a sale,
lease or other transfer of substantially all of its assets, to the purchaser and which


23









 







surviving
entity or purchaser expressly assumes the obligations of the Guarantor hereunder or such assumption
of obligations results from applicable law.




          Section 8.05. Notices. All notices provided for in this Class B Preferred Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be delivered,
telecopied with receipt confirmed or mailed by first class mail, postage prepaid, as follows:





     (a) If given to the Class B Preferred Guarantee Trustee, at the Class B Preferred
Guarantee Trustee’s mailing address set forth below:


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





     (b) If given to the Guarantor, at the Guarantor’s mailing address set forth below (or
such other address as the Guarantor may give notice of to the Holders of the Class B
Preferred Securities):


Deutsche Bank Aktiengesellschaft

Taunusanlage 12

D-60325 Frankfurt am Main

Germany

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

Attention: Group Treasury



With copies to:



Deutsche Bank Contingent Capital LLC II

60 Wall Street

New York, New York 10005

United States

Telecopy No.: (212) 797-0291

Attention: The Directors





     (c) If given to any Holder of Class B Preferred Securities, at the address set forth on
the books and records of the Company.




     (d) If given to any Holder of Trust Preferred Securities, at the address set forth on
the books and records of the Trust.




All such 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.



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          Section 8.06. GOVERNING LAW. THIS CLASS B PREFERRED GUARANTEE SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THEREOF.




          Section 8.07. Submission to Jurisdiction. Any claim or proceeding brought by the
Class B Preferred Guarantee Trustee on behalf of Holders or a Holder of Class B Preferred
Securities or Trust Preferred Securities to enforce the obligations of the Guarantor hereunder
shall be brought exclusively in a court of competent jurisdiction in the State of New York. Any
claim or proceeding relating to the application of Articles II and III, and the definitions of
terms as used therein, including, without limitation, any claims, counter-claims and cross-claims
asserted against the Class B Preferred Guarantee Trustee in connection therewith, shall be brought
in a court of competent jurisdiction in the State of New York.




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     This CLASS B PREFERRED GUARANTEE is executed as of the day and year first above written.



	 	 	 	 	 
	 	DEUTSCHE BANK AKTIENGESELLSCHAFT, 

     as Guarantor

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



	 	 	 	 	 
	THE BANK OF NEW YORK,

      as Class B Preferred Guarantee Trustee

 	 	 
	By:

	 	 
 

Name:

Title:
	 	 





 Class B
Preferred Securities - Subordinated Guarantee Agreement