Amended & Restated LLc Agmnt of DB CC LLC II



 





Exhibit 4.4




AMENDED AND RESTATED




LIMITED LIABILITY COMPANY AGREEMENT




OF




DEUTSCHE BANK CONTINGENT CAPITAL LLC II




Dated as of May 23, 2007





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1
	 	 	 	 
	 
	
DEFINED TERMS
	 	 	 	 
	 
	Section 1.01. Definitions
	 	 	2	 
	 
	Section 1.02. Other Definitional Provisions
	 	 	13	 
	 
	ARTICLE 2
	 	 	 	 
	 
	
TRUST INDENTURE ACT
	 	 	 	 
	 
	Section 2.01. Trust Indenture Act; Application
	 	 	14	 
	 
	Section 2.02. List of Holders of Securities
	 	 	14	 
	 
	Section 2.03. Reports by the Manager Trustee
	 	 	14	 
	 
	Section 2.04. Periodic Reports to Manager Trustee
	 	 	14	 
	 
	Section 2.05. Evidence of Compliance with Conditions Precedent
	 	 	14	 
	 
	Section 2.06. Default; Waiver
	 	 	15	 
	 
	Section 2.07. Notice of Events of Default
	 	 	15	 
	 
	ARTICLE 3
	 	 	 	 
	 
	
POWERS, DUTIES AND RIGHTS OF MANAGER TRUSTEE
	 	 	 	 
	 
	Section 3.01. Powers, Duties and Rights of Manager Trustee
	 	 	15	 
	 
	Section 3.02. Certain Rights of Manager Trustee
	 	 	16	 
	 
	Section 3.03. Not Responsible for Recitals or Issuance of Agreement
	 	 	18	 
	 
	Section 3.04. Compensation and Reimbursement
	 	 	18	 
	 
	ARTICLE 4
	 	 	 	 
	 
	
MANAGER TRUSTEE
	 	 	 	 
	 
	Section 4.01. Manager Trustee; Eligibility
	 	 	19	 
	 
	Section 4.02. Appointment, Removal and Resignation of Manager Trustee
	 	 	20	 
	 
	ARTICLE 5
	 	 	 	 
	 
	
CONTINUATION AND TERM; ADMISSION OF SECURITYHOLDERS
	 	 	 	 
	 
	Section 5.01. Continuation
	 	 	21	 
	 
	Section 5.02. Admission of Securityholders
	 	 	21	 
	 
	Section 5.03. Name
	 	 	21	 
	 
	Section 5.04. Term
	 	 	21	 
	 
	Section 5.05. Registered Agent and Office
	 	 	21	 
	 
	Section 5.06. Principal Place of Business
	 	 	21	 
	 
	Section 5.07. Qualification in Other Jurisdictions
	 	 	22	 






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TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	ARTICLE 6
	 	 	 	 
	 
	
PURPOSE AND POWERS OF THE COMPANY; BY-LAWS
	 	 	 	 
	 
	Section 6.01. Purposes and Powers
	 	 	22	 
	 
	Section 6.02. By-laws
	 	 	22	 
	 
	ARTICLE 7
	 	 	 	 
	 
	
CAPITAL CONTRIBUTIONS, ALLOCATIONS AND SECURITIES
	 	 	 	 
	 
	Section 7.01. Form of Contribution
	 	 	22	 
	 
	Section 7.02. Contributions with Respect to the Common Securityholder
	 	 	22	 
	 
	Section 7.03. Contributions with Respect to the Preferred Securityholders
	 	 	23	 
	 
	Section 7.04. Allocation of Profits and Losses
	 	 	23	 
	 
	Section 7.05. Withholding
	 	 	24	 
	 
	Section 7.06. Securities as Personal Property
	 	 	24	 
	 
	ARTICLE 8

	 	 	 	 
	 
	
SECURITYHOLDERS
	 	 	 	 
	 
	Section 8.01. Powers of Securityholders
	 	 	24	 
	 
	Section 8.02. Partition
	 	 	24	 
	 
	Section 8.03. Resignation
	 	 	24	 
	 
	Section 8.04. Liability of Securityholders
	 	 	24	 
	 
	ARTICLE 9
	 	 	 	 
	 
	
MANAGEMENT
	 	 	 	 
	 
	Section 9.01. Management of the Company
	 	 	25	 
	 
	Section 9.02. Limits on Board of Directors’ Powers
	 	 	28	 
	 
	Section 9.03. Reliance by Third Parties
	 	 	28	 
	 
	Section 9.04. No Management by Any Preferred Securityholders
	 	 	28	 
	 
	Section 9.05. Business Transactions of the Common Securityholder with the Company
	 	 	29	 
	 
	Section 9.06. Outside Businesses
	 	 	29	 
	 
	Section 9.07. Duties of the Independent Directors
	 	 	29	 
	 
	ARTICLE 10
	 	 	 	 
	 
	
COMMON SECURITY AND PREFERRED SECURITIES
	 	 	 	 
	 
	Section 10.01. Common Security and Preferred Securities
	 	 	29	 
	 
	Section 10.02. General Provisions Regarding Preferred Securities
	 	 	30	 
	 
	Section 10.03. Class A Preferred Security
	 	 	30	 
	 
	Section 10.04. Class B Preferred Securities
	 	 	31	 






ii 









 




TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	ARTICLE 11

	 	 	 	 
	 
	
VOTING AND MEETINGS
	 	 	 	 
	 
	Section 11.01. Voting Rights of Preferred Securityholders
	 	 	46	 
	 
	Section 11.02. Voting Rights of Common Securityholders
	 	 	46	 
	 
	Section 11.03. Meetings of the Securityholders
	 	 	46	 
	 
	ARTICLE 12
	 	 	 	 
	 
	
CAPITAL PAYMENTS
	 	 	 	 
	 
	Section 12.01. Capital Payments
	 	 	48	 
	 
	Section 12.02. Limitations on Distributions
	 	 	48	 
	 
	Section 12.03. Distribution Policy
	 	 	48	 
	 
	ARTICLE 13
	 	 	 	 
	 
	
BOOKS AND RECORDS
	 	 	 	 
	 
	Section 13.01. Financial Statements
	 	 	48	 
	 
	Section 13.02. Limitation on Access to Records
	 	 	48	 
	 
	Section 13.03. Accounting Method
	 	 	49	 
	 
	Section 13.04. Annual Audit
	 	 	49	 
	 
	ARTICLE 14
	 	 	 	 
	 
	
TAX MATTERS
	 	 	 	 
	 
	Section 14.01. Company Tax Returns
	 	 	49	 
	 
	Section 14.02. Tax Reports
	 	 	49	 
	 
	Section 14.03. Taxation as a Partnership
	 	 	49	 
	 
	ARTICLE 15
	 	 	 	 
	 
	
EXPENSES
	 	 	 	 
	 
	Section 15.01. Expenses
	 	 	50	 
	 
	ARTICLE 16
	 	 	 	 
	 
	
TRANSFERS OF SECURITIES BY SECURITYHOLDERS AND RELATED MATTERS
	 	 	 	 
	 
	Section 16.01. Transfer of the Common Security and Class A Preferred Security
	 	 	50	 
	 
	Section 16.02. Registration
	 	 	51	 
	 
	Section 16.03. Events of Cessation of Security Ownership
	 	 	51	 
	 
	Section 16.04. Persons Deemed Securityholders
	 	 	51	 
	 
	Section 16.05. The Class B Preferred Certificates
	 	 	51	 
	 
	Section 16.06. Transfer of Class B Preferred Certificates
	 	 	51	 
	 
	Section 16.07. Mutilated, Destroyed, Lost or Stolen Class B Preferred Certificates
	 	 	53	 
	 
	Section 16.08. Book-entry Provisions
	 	 	53	 






iii 









 




TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	ARTICLE 17
	 	 	 	 
	 
	
MERGERS, CONSOLIDATIONS AND SALES; REINVESTMENT OF OBLIGATIONS
	 	 	 	 
	 
	Section 17.01. The Company
	 	 	55	 
	 
	Section 17.02. Substitute Obligations
	 	 	56	 
	 
	ARTICLE 18
	 	 	 	 
	 
	
DISSOLUTION, LIQUIDATION AND TERMINATION
	 	 	 	 
	 
	Section 18.01. No Dissolution
	 	 	57	 
	 
	Section 18.02. Events Causing Dissolution
	 	 	57	 
	 
	Section 18.03. Notice of Dissolution
	 	 	58	 
	 
	Section 18.04. Liquidation
	 	 	58	 
	 
	Section 18.05. Termination
	 	 	58	 
	 
	ARTICLE 19
	 	 	 	 
	 
	
MISCELLANEOUS
	 	 	 	 
	 
	Section 19.01. Amendments
	 	 	58	 
	 
	Section 19.02. Amendment of LLC Certificate
	 	 	59	 
	 
	Section 19.03. Successors
	 	 	59	 
	 
	Section 19.04. Law; Severability
	 	 	59	 
	 
	Section 19.05. Filings
	 	 	60	 
	 
	Section 19.06. Power of Attorney
	 	 	60	 
	 
	Section 19.07. Exculpation
	 	 	60	 
	 
	Section 19.08. Indemnification
	 	 	61	 
	 
	Section 19.09. Notices
	 	 	61	 
	 
	Section 19.10. Additional Documents
	 	 	62	 
	 
	Section 19.11. Counterparts
	 	 	62	 






	 
	ANNEX A —By-laws of the Company

	ANNEX B —List of Initial Directors and Officers

	ANNEX C —Form of Certificate Evidencing the Class A Preferred Security

	ANNEX D —Form of Certificate Evidencing Class B Preferred Securities








iv 









 









CROSS-REFERENCES TABLE1




	 	 	 	 	 
	Section of Trust Indenture Act	 	Section of	 
	of 1939, as amended	 	Agreement	 
	310(a)
	 	 	4.01(a)	
	310(b)
	 	 	4.01(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(f)
	 	Inapplicable	 
	315(a)
	 	 	3.01(c), (d)	
	315(b)
	 	 	2.07	 
	315(c)
	 	 	3.01(c)	
	315(d)
	 	 	3.01(d)	
	316(a)
	 	 	2.08	 








 




			
	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 & Restated LLC Agreement




 









 





AMENDED AND RESTATED




LIMITED LIABILITY COMPANY AGREEMENT




OF




DEUTSCHE BANK CONTINGENT CAPITAL LLC II




          AMENDED AND RESTATED LIABILITY COMPANY AGREEMENT dated and effective of May 23, 2007 by the
Bank (as defined below), as initial Common Securityholder (as defined below) and as initial Class A
Preferred Securityholder (as defined below), the Trust (as defined below), as initial Class B
Preferred Securityholder (as defined below), and The Bank of New York, as Manager Trustee.




          WHEREAS, the Bank as the organizing member has formed Deutsche Bank Contingent Capital LLC II
(the “Company”) as a limited liability company pursuant to the Delaware Limited Liability Company
Act, 6 Del.C. § 18-101, et seq., as amended from time to time (the “LLC Act”) pursuant to
the LLC Certificate (as defined below) filed with the office of the Secretary of State of the State
of Delaware on May 10, 2007, and a Limited Liability Company Agreement of the Company dated as of
May 10, 2007 (the “Initial LLC Agreement”);




          WHEREAS, the Bank and the other Securityholders wish to continue the Company as a limited
liability company under the LLC Act in accordance with the terms of this Agreement and to amend and
restate in its entirety the Initial LLC Agreement; and




          NOW, THEREFORE, it being the intention of the parties hereto that this Agreement constitute
the governing instrument of the Company 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 of the initial Securityholders (as defined below) hereby agree as
follows:




ARTICLE 1



DEFINED TERMS




          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;




     (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



2









 






     (e) a term used in this Agreement and not otherwise defined herein shall have the
meaning ascribed to such term in the Trust 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 10.04(c) hereof.




          “Additional Interest Amounts” means any additional interest amounts payable by the Bank or
other obligor pursuant to the terms of the Initial Obligation as a result of deduction or
withholding upon payment of interest on the Initial Obligation or repayment upon redemption
thereof.




          “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 a specified Person, any Person that directly or indirectly
controls, is controlled by, or is under common control with such specified Person. The terms
“control”, “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.




          “Agreement” means this Amended and Restated Limited Liability Company Agreement, as it may be
further amended, modified, supplemented or restated from time to time in accordance with its terms.




          “Arrears of Payments” has the meaning set forth in Section 10.04(b)(vi)(A)(3).




          “Authorized Person” has the meaning specified in Section 5.01(b).




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




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




          “Bankruptcy” means, with respect to any Securityholder, if such Securityholder (i) makes an
assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is
adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy
or insolvency proceeding, (iv) files a petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation or similar relief under any statute, law or
regulation, (v) files an answer or other pleading admitting or failing to contest the material
allegations of a petition filed against it in a proceeding of this nature, (vi) seeks, consents to
or acquiesces in the appointment of a trustee, receiver or liquidator of the Securityholder or of
all or any substantial part of its properties, or (vii) if 120 days after the commencement of any
proceeding against the Securityholder seeking reorganization, arrangement, composition,
readjustment, liquidation or similar relief

3









 








under any statute, law or regulation, if the proceeding has not been dismissed, or if within
90 days after the appointment without such Securityholder’s consent or acquiescence of a trustee,
receiver or liquidator of such Securityholder or of all or any substantial part of its properties,
the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay,
the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace
and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and
18-304 of the LLC Act.




          “Board of Directors” means the Board of Directors of the Company as constituted in accordance
with the provisions of this Agreement and of the By-laws.




          “Book-Entry Class B Preferred Certificates” has the meaning specified in Section 16.08(a) of
this Agreement.




          “Business Day” means a day other than a Saturday, a 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.




          “By-laws” means the By-laws of the Company in the form of Annex A hereto, as they may be
amended from time to time by the Board of Directors in accordance with the provisions of this
Agreement (which By-laws are, for all purposes of this Agreement, deemed to be incorporated herein
and to be a part hereof).




          “Capital Payments” means with respect to the Class B Preferred Securities, periodic
distributions to Class B Preferred Securityholders declared (or deemed declared) and paid in
accordance with this Agreement.




          “Class A Preferred Certificate” means a certificate substantially in the form attached hereto
as Annex C, evidencing the Class A Preferred Security held by a Class A Preferred Securityholder.




          “Class A Preferred Security” has the meaning specified in Section 10.03 of this Agreement.




          “Class A Preferred Securityholder” means a Securityholder that owns the Class A Preferred
Security.




          “Class B Liquidation Preference Amount” has the meaning set forth in Section 10.04(a) of this
Agreement.




          “Class B Payment Date” has the meaning specified in Section 10.04(b)(i) of this Agreement.




          “Class B Payment Period” has the meaning specified in Section 10.04(b)(i) of this Agreement.




          “Class B Preferred Certificate” means a certificate substantially in the form attached hereto
as Annex D, evidencing the Class B Preferred Securities held by a Class B Preferred Securityholder.




          “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,

4









 








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.




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




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




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




          “Class B Preferred Securities” has the meaning specified in Section 10.04(a) of this
Agreement.




          “Class B Preferred Securityholder” means a Securityholder that owns one or more Class B
Preferred Securities.




          “Class B Redemption Date” has the meaning specified in Section 10.04(d)(i) of this Agreement.




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




          “Code” means the U.S. Internal Revenue Code of 1986, as amended, or any corresponding federal
tax statute enacted after the date of this Agreement. 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.




          “Common Security” means a voting security of the Company representing common limited liability
company interests in the Company which are described in this Agreement.




          “Common Securityholder” means a Securityholder that owns the Common Security.




          “Company” has the meaning specified in the Preamble of this Agreement.




          “Company Securities” means the securities of the Company representing the Common Security and
the Preferred Securities.




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




          “Definitive Class B Preferred Securities” has the meaning specified in Section 16.05(b) of
this Agreement.




          “Directors” means each of the Persons listed as a Director on Annex B hereto until such
Persons shall resign or otherwise be duly removed as a Director, and each Person

5









 








who may from time to time be designated to serve as a successor to any Director of the Company
in accordance with the provisions of this Agreement and of the By-laws.




          “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
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.




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




          “Event of Default” means (i) 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 Class B Payment Periods, and (ii) 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.




          “Fiscal Year” means (i) the period commencing upon the formation of the Company and ending on
December 31, 2007, and (ii) any subsequent twelve (12) month period commencing on January 1 and
ending on December 31.




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




          “Guarantor” means the Bank in its capacity as guarantor under the Guarantees.




          “Holder” means any initial holder or subsequent holder of securities issued by the Trust or
the Company, as registered on the books and records of the Trust or the Company, as the case may
be.




6









 








          “Independent Director” means each member of the Board of Directors who (i) is not a current
officer or employee of the Company, the Bank or any Affiliate of the Bank or of any Person or
Persons that, in the aggregate, own more than 10% of the Common Securities or (ii) is elected to
the Board of Directors by the Class B Preferred Securityholders in accordance with the provisions
hereof.




          “Initial LLC Agreement” has the meaning specified in the recitals of this Agreement.




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




          “Initial Redemption Date” has the meaning specified in Section 10.04(d) 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.




          “Junior Securities” means (i) ordinary shares of common stock of the Bank, (ii) each class of
preference shares of the Bank ranking junior to Preferred Tier 1 Securities of the Bank, if any,
and any other instrument of the Bank ranking on parity with such preference shares or junior
thereto and (iii) preference shares or any other instrument of any subsidiary of the Bank subject
to any guarantee or support agreement of the Bank which guarantee or support undertaking ranks
junior to the obligations of the Bank under the Guarantees.




          “List of Holders” has the meaning specified in Section 2.02(a).




          “LLC Act” has the meaning specified in the first Recital of this Agreement.




          “LLC Certificate” means the Certificate of Formation of the Company and any and all amendments
thereto and restatements thereof filed on behalf of the Company with the office of the Secretary of
State of the State of Delaware pursuant to the LLC Act.




          “Majority or Other Stated Percentage” means a vote by Securityholders of outstanding Company
Securities voting together as a single class, or, as the context may require, Securityholders of
the outstanding Class A Preferred Security, Securityholders of the outstanding Class B Preferred
Securities or Securityholders of the outstanding 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 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 Company Securities or all outstanding Company
Securities of the relevant class, as the case may be.




7









 








          “Manager Trustee” means The Bank of New York until a Successor Manager Trustee has been
appointed and accepted such appointment pursuant to the terms of this Agreement and thereafter
means each Successor Manager Trustee.




          “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” means each of the Persons listed as an Officer of the Company on Annex B hereto
until such Person shall resign or otherwise be duly removed as an Officer and each Person who may
from time to time be duly appointed an Officer of the Company by the Board of Directors or pursuant
to Section 9.01(a) and acting in accordance with the provisions of this Agreement and of the
By-laws.




          “Officers’ Certificate” means, with respect to the Company, a certificate signed by two
Officers.




          “Operating Profits” of the Company means, for any Class B Payment Period, the excess of (a)
the amounts paid on the (i) Obligations that the Company may then hold in accordance with this
Agreement, in each case during such Class B Payment Period over (b) any operating expenses of the
Company not paid or reimbursed by the Bank or any one of its branches or affiliates as provided in
the Services Agreement during such Class B Payment Period.




          “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” means Deutsche Bank Trust Company Americas, or any successor.




          “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.




          “Power of Attorney” means the power of attorney granted pursuant to Section 19.06.




          “Preferred Securities” means the Class A Preferred Security and the Class B Preferred
Securities.




8









 








          “Preferred Securityholder” means a Securityholder that holds one or more Preferred Securities.




          “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, (i) each class of the most senior ranking
preference shares of the Bank, if any, and (ii) 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 Trustee” has the meaning assigned to it in the Trust Agreement 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.




          “Redemption Notice” has the meaning specified in Section 10.04(e)(i) of this Agreement.




          “Redemption Price” has the meaning specified in Section 10.04(d)(i) of this Agreement.




          “Register” has the meaning specified in Section 16.06 of this Agreement.




          “Registrar” has the meaning specified in Section 16.06 of this Agreement.




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




          “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, prior to the Tier 1 Qualification Date, as supplementary


9









 







capital (Ergänzungskapital) or Upper Tier 2 regulatory capital for capital adequacy purposes
on a consolidated basis, and following the Tier 1 Qualification Date, as core capital (Kernkapital)
or Tier 1 regulatory capital for capital adequacy purposes on a consolidated basis.




          “Relevant Jurisdiction” has the meaning specified in Section 10.04(c) of this Agreement.




          “Responsible Officer” means with respect to the Manager Trustee, any officer within the
Corporate Trust Office of the Manager Trustee, including any vice president, any assistant vice
president, any secretary, any assistant secretary, any assistant treasurer, any trust officer or
other officer of the Manager 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 and who shall have direct responsibility for the
administration of this Agreement.




          “Securities Act” means the United States Securities Act of 1933, as amended, or any successor
legislation.




          “Security” means a limited liability company interest in the Company, including the right of
the holder thereof to any and all benefits to which a Securityholder may be entitled as provided in
this Agreement, together with the obligations of a Securityholder to comply with all of the terms
and provisions of this Agreement, and includes the Common Security and the Preferred Securities
from time to time outstanding.




          “Securityholder” means any Person that holds a Security of the Company and is admitted as a
member and Securityholder of the Company pursuant to the provisions of this Agreement and of the
LLC Act, in its capacity as a Securityholder of the Company. For purposes of the LLC Act, the
Common Securityholder and the Preferred Securityholders shall constitute separate classes or groups
of Securityholders and of members.




          “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 16.06(c).




          “Stated Rate” has the meaning specified in Section 10.04(b)(ii).




          “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


10









 







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 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 Company Securities” has the meaning specified in Section 17.01 of this Agreement.




          “Successor Manager Trustee” has the meaning specified in Section 4.02(b).




          “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 pronouncement or decision is announced, after the date of issuance of the Preferred
Securities and the Trust Securities, 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.




          “Tax Matters Partner” means the Person designated as such in Section 14.01(a) of this
Agreement.




          “Tier 1 Qualification Date” has the meaning specified in Section 10.04(k) hereof.




11









 








          “Tier 1 Qualification Election” has the meaning specified in Section 10.04(k) hereof.




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




          “Tier 2 Junior Securities” means, at any time, (i) common stock of the Bank, (ii) each class
of preference shares of the Bank then ranking junior to Parity Capital Securities and Preferred
Tier 1 Capital Securities of the Bank, if any, and any other instrument of the Bank then ranking
pari passu therewith or junior thereto and (iii) preference shares or any other instrument of any
subsidiary of the Bank (other than Preferred Tier 1 Subsidiary Securities) subject to any guarantee
or support agreement of the Bank then ranking junior to the obligations of the Bank under the terms
of the Guarantees in effect on and after the Tier 1 Qualification Election.




          “Transfer Agent” has the meaning specified in Section 16.06 of this 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” means Deutsche Bank Contingent Capital Trust II, a Delaware statutory trust, together
with its successors.




          “Trust Agreement” means the Amended and Restated Trust Agreement of the Trust dated May 23,
2007, as amended from time to time.




          “Trust Common Security” means the Trust Common Security issued by the Trust.




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




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




          “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 holders of the Trust Preferred
Securities from time to time.




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




          “Trust Preferred Securities” means the Trust Preferred Securities issued by the Trust.




          “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.




          “Withholding Taxes” has the meaning set forth in Section 10.04(c) of this Agreement.




          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 Company 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; 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.



13









 





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.



          Section 2.02. List of Holders of Securities. (a) The Registrar on behalf of the Company shall
provide the Manager Trustee and the Paying Agent a list, in such form as the Manager Trustee and
the Paying Agent may reasonably require, of the names and addresses of the Holders of the Class B
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 Company from the Manager Trustee or 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
Manager Trustee and the Paying Agent.





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



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




          Section 2.04. Periodic Reports to Manager Trustee. The Company shall provide to the Manager
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 Manager
Trustee is for informational purposes only and the Manager Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of its covenants
hereunder (as to which the Manager Trustee is entitled to rely exclusively on Officers’
Certificates furnished by the Company).




          Section 2.05. Evidence of Compliance with Conditions Precedent. The Company shall provide to
the Manager 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.




14









 








          Section 2.06. Default; Waiver. A Majority of the Class B Preferred Securities may, by vote,
on behalf of all Class B Preferred Securityholders, waive any past Event of Default with respect to
the Class B Preferred Securities and its consequences, except that an Event of Default in respect
of any covenant or provision hereof or of the Class B Preferred Guarantee, as applicable, which (i)
cannot be modified or amended without the consent of each Holder of Class B Preferred Securities,
can only be waived by all Holders of Class B Preferred Securities, or (ii) can only be modified or
amended with the consent or vote of the Holders of more than 50% of the Class B Preferred
Securities, can only be waived under this Agreement by the vote of the Holders of at least the same
percentage of the Class B Preferred Securities. The foregoing provisions of this Section 2.06
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. Upon such waiver, any such Event of Default
shall be deemed to have been cured, for every purpose of this Agreement, but no such waiver shall
extend to any subsequent or other Event of Default or impair any right consequent thereon.




          Section 2.07. Notice of Events of Default. (a) The Manager Trustee shall, within 90 days
after the occurrence of an Event of Default, (or an event which with the passage of time would
become an Event of Default, including the failure of the Company to pay a Capital Payment on the
Class B Preferred Securities in full for any Class B Payment Period), transmit by mail, first class
postage prepaid, to the Securityholders, notices of all such Events of Default (or such events)
actually known to a Responsible Officer of the Manager Trustee, unless such Events of Default have
been cured before the giving of such notice, provided that, the Manager Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of the Manager Trustee
in good faith determines that the withholding of such notice is in the interests of the
Securityholders.





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



ARTICLE 3



POWERS, DUTIES AND RIGHTS OF MANAGER TRUSTEE




          Section 3.01. Powers, Duties and Rights of Manager Trustee. (a) The Manager Trustee is
appointed pursuant to this Agreement solely for the benefit of the Class B Preferred
Securityholders. The duties and responsibilities of the Manager Trustee shall be as provided by the
Trust Indenture Act and as set forth herein.





     (b) The Manager Trustee, prior to the occurrence of any Event of Default and after the
curing or waiver of all such Event of Defaults 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 Manager Trustee.




     (c) In case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.06) and is actually known to a Responsible Officer of the Manager
Trustee, the Manager 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



15









 







exercise thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.




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




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




          (iii) The Manager 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
Securityholders relating to the time, method and place of conducting any proceeding for any
remedy available to the Manager Trustee, or exercising any trust or power conferred upon the
Manager Trustee under this Agreement.




     (e) No provision of this Agreement shall require the Manager 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 Manager Trustee shall
have reasonable grounds for believing that the repayment of such fund or liability is not
assured to it under the terms of this Agreement or indemnity reasonably satisfactory to the
Manager Trustee, against such risk or liability is not reasonably assured to it.



          Section 3.02. Certain Rights of Manager Trustee. (a) Subject to the provisions of Section
3.01:





          (i) The Manager Trustee may conclusively rely, and shall be fully protected in acting
or refraining from acting upon, any Officers’ Certificate, 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 or
presented by the proper party or parties.




          (ii) Any direction, request, order or demand of the Company contemplated by this
Agreement shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence
in respect thereof be herein specifically prescribed).



16









 






          (iii) Whenever, in the administration of this Agreement, the Manager 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), in
the absence of negligence or bad faith on the part of the Manager Trustee, be deemed to be
conclusively proved and established by an Officers’ Certificate delivered to the Manager
Trustee, and such Officers’ Certificate, in the absence of negligence or bad faith on the
part of the Manager Trustee, shall be full warrant to the Manager 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 Manager Trustee may, at the expense of the Company, 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 Company or any of its Affiliates and may include any of its
employees. The Manager 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 Manager 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 Securityholder
unless such Securityholder shall have provided to the Manager Trustee such security and
indemnity, satisfactory to the Manager Trustee, against the costs, expenses (including
attorneys’ fees and expenses and the expenses of the Manager 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 Manager Trustee;
provided that, nothing contained in this Section 3.02(a)(v) shall be taken to
relieve the Manager Trustee, upon the occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this Agreement.




          (vi) Prior to the occurrence of an Event of Default and after the curing or waiving of
all Events of Default, the Manager 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 the Company Securities affected (voting as a single class), but the Manager 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, and if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney at the sole cost of the Company.




          (vii) The Manager 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 Manager Trustee shall not be responsible for any misconduct or negligence
on the part of any agent, nominee, custodian or attorney appointed with due care by it
hereunder.



17









 






          (viii) Whenever in the administration of this Agreement the Manager Trustee shall deem
it desirable to receive instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Manager Trustee (i) may request written instructions from a
Majority 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.




          (ix) The Manager 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 Agreement.




          (x) The rights, privileges, protections, immunities and benefits given to the Manager
Trustee, including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Manager Trustee in any other capacity in which it may act
hereunder.




          (xi) The Trustee may request that the Company deliver a certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Agreement.




     (b) No provision of this Agreement shall be deemed to impose any duty or obligation on
the Manager 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 Manager 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 Manager Trustee shall be
construed to be a duty.



          Section 3.03. Not Responsible for Recitals or Issuance of Agreement. The recitals contained
in this Agreement shall be taken as the statements of the Company, and the Manager Trustee does not
assume any responsibility for their correctness. The Manager Trustee makes no representation as to
the validity or sufficiency of this Agreement or the Company Securities.




          Section 3.04. Compensation and Reimbursement.




     (a) The Bank agrees




          (i) to pay to the Manager Trustee from time to time such compensation as the Bank and
the Manager Trustee shall from time to time agree in writing for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);




          (ii) except as otherwise expressly provided herein, to reimburse the Manager Trustee
upon its request for all reasonable expenses, disbursements and advances incurred or made by
the Manager Trustee in accordance with any provision of this Agreement (including the
compensation and the expenses and disbursements



18









 







of its agents and counsel), except any such expense, disbursement or advance as may be
attributable to the Manager Trustee’s negligence or bad faith; and




          (iii) to indemnify the Manager Trustee and its officers, directors, employees and
agents for, and to hold each of them harmless against, any and all loss, liability or
expense incurred without negligence or bad faith on the part of the Manager Trustee, arising
out of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or duties
hereunder.




     (b) The provisions of this Section 3.04 shall survive the termination of this
Agreement.



ARTICLE 4



MANAGER TRUSTEE




          Section 4.01. Manager Trustee; Eligibility. (a) There shall at all times be a Manager Trustee
which shall:





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




          (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 Securities and Exchange 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 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 4.01(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 Manager Trustee shall cease to be eligible to so act under
Section 4.01(a), the Manager Trustee shall immediately resign in the manner and with the
effect set out in Section 4.02(c).




     (c) If the Manager Trustee shall acquire any “conflicting interest” within the meaning
of Section 310(b) of the Trust Indenture Act, the Manager Trustee and Company 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.



19









 






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



          Section 4.02. Appointment, Removal and Resignation of Manager Trustee. (a) Subject to Section
4.02(b), the Manager Trustee may be appointed or removed without cause at any time by a Majority of
the outstanding Common Securities voting as a class at a meeting of the Common Securityholders.





     (b) The Manager Trustee shall not be removed in accordance with Section 4.02(a) until a
successor Manager Trustee possessing the qualifications to act as Manager Trustee under
Section 4.01 hereof (a “Successor Manager Trustee”) has been appointed and has accepted such
appointment by written instrument executed by such Successor Manager Trustee and delivered
to the Company.




     (c) The Manager Trustee appointed to office shall hold office until a Successor Manager
Trustee shall have been appointed or until its death, removal or resignation. The Manager
Trustee may resign from office (without need for prior or subsequent accounting) by an
instrument in writing signed by the Manager Trustee and delivered to the Company, which
resignation shall not take effect until a Successor Manager Trustee has been appointed and
has accepted such appointment by written instrument signed by such Successor Manager Trustee
and delivered to the Company and the resigning Manager Trustee.




     (d) The right, title and interest of the Manager Trustee shall automatically vest in
any Successor Manager 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 Manager Trustee.




     (e) The Holder of the Common Security shall use its best efforts to promptly appoint a
Successor Manager Trustee, if the Manager Trustee delivers an instrument of resignation in
accordance with this Section 4.02.




     (f) If no Successor Manager Trustee shall have been appointed and accepted appointment
as provided in this Section 4.02 within 60 days after delivery to the Company of an
instrument of removal or resignation, the Manager Trustee resigning or being removed may
petition, at the expense of the Company, any court of competent jurisdiction for appointment
of a Successor Manager Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Manager Trustee.




     (g) No Manager Trustee shall be liable for the acts or omissions to act of any
Successor Manager Trustee.




     (h) Upon termination of this Agreement or removal or resignation of the Manager Trustee
pursuant to this Section 4.02, and before the appointment of any Successor Manager Trustee
the Company shall pay to the Manager Trustee all amounts to which it is entitled to the date
of such termination, removal or resignation.



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ARTICLE 5



CONTINUATION AND TERM; ADMISSION OF SECURITYHOLDERS




          Section 5.01. Continuation.





     (a) The Securityholders hereby agree to the continuation of the Company as a limited
liability company under and pursuant to the provisions of the LLC Act and of this Agreement
and agree that the rights, duties and liabilities of the Securityholders shall be as
provided in the LLC Act, except as otherwise provided herein or in the By-laws.




     (b) Any Person designated as an “Authorized Person” by the Board of Directors is
authorized to execute, deliver and file on behalf of the Company any and all amendments to
and restatements of the LLC Certificate, as an authorized person within the meaning of the
LLC Act.



          Section 5.02. Admission of Securityholders. Upon the execution of this Agreement and
contribution to the Company pursuant to Section 7.02 and Section 7.03(a), the Bank shall become and
be designated as, automatically and without any further action on the part of any Person being
necessary, the initial Common Securityholder and the initial Class A Preferred Securityholder.
Upon the execution of this Agreement and contribution to the Company pursuant to Section 7.03(b)
for the Class B Preferred Securities on the Closing Date, the Trust shall become and be designated
as, without any further act on the part of any Person being necessary, the initial Class B
Preferred Securityholder (with title to the Class B Certificate being held of record in the name of
the Property Trustee for the benefit of the Holders of the Trust Preferred Securities and the
Holder of the Trust Common Security).




          Section 5.03. Name. The name of the Company heretofore formed and continued is “Deutsche Bank
Contingent Capital LLC II”; provided that the business of the Company may be conducted upon
compliance with all applicable laws under any other name designated by the Board of Directors.




          Section 5.04. Term. The term of the Company shall commence upon the date the LLC Certificate
shall have been filed in the office of the Secretary of State of the State of Delaware and shall
continue perpetually, unless the Company is dissolved in accordance with the provisions of the LLC
Act and this Agreement. The existence of the Company as a separate legal entity shall continue
until the cancellation of the LLC Certificate in the manner required by the LLC Act.




          Section 5.05. Registered Agent and Office. The Company’s registered agent in Delaware shall
be The Corporation Trust Company, 1209 Orange Street, Wilmington, County of New Castle, Delaware
19801 and its registered office shall be c/o the registered agent. At any time, the Board of
Directors may designate another registered agent and/or registered office.




          Section 5.06. Principal Place of Business. The principal place of business of the Company
shall be at 60 Wall Street, New York, New York 10005. The Board of Directors may change the
location of the Company’s principal place of business; provided, however, that such
change has no material adverse effect upon any Securityholder and that the principal place of
business of the Company shall always be located in the United States.




21









 








          Section 5.07. Qualification in Other Jurisdictions. The Board of Directors shall cause the
Company to be qualified or registered under assumed or fictitious name statutes or similar laws in
any jurisdiction in which the Company conducts business and in which such qualification or
registration is required by law or deemed advisable by the Board of Directors. Each Person
designated by the Board of Directors as an “Authorized Person” is authorized to execute, deliver
and file on behalf of the Company any certificates (and any amendments or restatements thereof)
necessary for the Company to qualify to do business in each jurisdiction in which the Board of
Directors has determined that the Company shall conduct business.




ARTICLE 6



PURPOSE AND POWERS OF THE COMPANY; BY-LAWS




          Section 6.01. Purposes and Powers. The sole purposes of the Company are:





     (a) to issue the Preferred Securities and the Common Security,




     (b) (i) to invest the proceeds of the Class B Preferred Securities in the Initial
Obligation, (ii) upon any redemption of the Obligations, which does not involve a redemption
of the Class B Preferred Securities, to accept Substitute Obligations delivered in
accordance with Section 17.02, and (iii) in the event of a failure in the payment of
interest on or any Additional Interest Amounts, if any, with respect to, the Obligations, to
bring an action or proceeding to enforce such payment, and




     (c) except as otherwise expressly limited herein, to enter into, make and perform all
contracts and other undertakings, and engage in all activities and transactions, as the
Board of Directors may reasonably deem necessary or advisable for the carrying out of the
foregoing purposes of the Company.



          Unless otherwise permitted herein, the Company may not conduct any other business or
operations except as contemplated by the preceding sentence. The Company shall have the power and
authority to take any and all actions necessary, appropriate, proper, advisable, incidental or
convenient to or for the furtherance of the purposes of the Company as set forth herein.




          Section 6.02. By-laws. The Board of Directors, Officers and Securityholders shall be subject
to the express provisions of this Agreement and of the By-laws. In case of any conflict between
any provisions of this Agreement and any provisions of the By-laws, the provisions of this
Agreement shall control.




ARTICLE 7



CAPITAL CONTRIBUTIONS, ALLOCATIONS AND SECURITIES




          Section 7.01. Form of Contribution. The contribution to the Company by a Securityholder shall
be in cash.




          Section 7.02. Contributions with Respect to the Common Securityholder. In connection with its
purchase of the Common Security, the Common Securityholder shall contribute to the capital of the
Company on or prior to the Closing Date, cash in the amount

22









 








of U.S.$25 (such amount being the Common Securityholder’s capital contribution to the
Company).




          Section 7.03. Contributions with Respect to the Preferred Securityholders.





     (a) In connection with its purchase of the Class A Preferred Security, the Class A
Preferred Securityholder shall, in exchange for a Class A Preferred Certificate, contribute
to the capital of the Company on or prior to the Closing Date, cash in the amount of
U.S.$25 (such amount being the Class A Preferred Securityholder’s capital contribution to
the Company).




     (b) In connection with its purchase of the Class B Preferred Securities, the Trust
shall, in exchange for a Class B Preferred Certificate registered in the name of the
Property Trustee, contribute to the capital of the Company on the Closing Date an amount in
cash equal to the gross proceeds from the sale of the Trust Preferred Securities and the
Trust Common Security (such amount being such Person’s capital contribution to the Company).



          Preferred Securityholders, in their capacity as Securityholders of the Company, shall not be
required to make any additional contributions to the Company (except as may be required by law).




          Section 7.04. Allocation of Profits and Losses. Except as otherwise provided in Section 10.03
or Section 10.04, the income, gains, profits and losses of the Company for any Fiscal Year (or
portion thereof) shall be allocated as follows:





     (a) all gains and losses resulting from any disposition of assets (including, without
limitation, any redemption or prepayment of assets) by the Company shall be allocated 100%
to the Common Securityholders;




     (b) gross income of the Company (determined without regard to the amount of any gains
and losses described in subparagraph (a) of this Section 7.04) shall be allocated (i) pro
rata among the Class B Preferred Securityholders until the amount so allocated to each Class
B Preferred Securityholder equals the amount of Capital Payments declared (or deemed
declared) and attributable to such Fiscal Year and (ii) thereafter to the Common
Securityholders, provided, that if capital payments are declared on the Class A
Preferred Security, net income shall first be allocated to the Class A Preferred
Securityholder in the amount of such capital payments before any allocations pursuant to (i)
or (ii); and




     (c) net losses (if any) of the Company (determined without regard to the amount of any
gains and losses described in subparagraph (a) of this Section 7.04) shall be allocated 100%
to the Common Securityholders.



          Notwithstanding the foregoing, the Tax Matters Partner shall have the power to alter any such
allocations for U.S. federal, state, and local income tax purposes if such alteration is necessary
to cause such allocations to have “substantial economic effect” (within the meaning of Treasury
regulation 1.704-1(b)(2)) or to ensure that such allocations are otherwise in accordance with the
interests of the Securityholders (within the meaning of Treasury regulation 1.704-1(b)(3))
determined on the basis of the economic arrangements of the parties as described in this Agreement.




23








 








          Section 7.05. Withholding. The Company shall comply with any withholding requirements under
U.S. federal, state and local law and foreign law and shall remit amounts withheld to and file
required forms with applicable jurisdictions. Subject to the provisions of Section 10.04, to the
extent that the Company is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Securityholder, the amount withheld shall be deemed
to be a distribution in the amount of the withholding to such Securityholder. To the fullest
extent permitted by law, in the event of any claimed over-withholding, Securityholders shall be
limited to an action against the applicable jurisdiction. If the amount was not withheld from
actual distributions, the Company may reduce subsequent distributions by the amount of such
withholding, except with respect to distributions on the Class B Preferred Securities. Each
Securityholder, by its acceptance of Securities, shall be deemed to agree to furnish the Company
with any representations and forms as shall reasonably be requested by the Company to assist it in
determining the extent of, and in fulfilling, its withholding obligations.




          Section 7.06. Securities as Personal Property. Each Securityholder hereby agrees that its
Securities shall for all purposes be personal property. A Securityholder has no interest in
specific property of the Company.




ARTICLE 8



SECURITYHOLDERS




          Section 8.01. Powers of Securityholders. The Securityholders shall have the power to exercise
any and all rights or powers granted to the Securityholders pursuant to the express terms of this
Agreement and of the By-laws and shall be subject in all respects to the provisions hereof and
thereof.




          Section 8.02. Partition. To the fullest extent permitted by law, each Securityholder waives
any and all rights that it may have to maintain an action for partition of the property of the
Company.




          Section 8.03. Resignation. A Securityholder may resign from the Company prior to the
liquidation, dissolution, winding up or termination of the Company only upon the assignment of its
entire ownership interest in any Securities (including any redemption, repurchase or other
acquisition by the Company of such Securities) in accordance with the provisions of this Agreement.
A Securityholder that has resigned shall not be entitled to receive any distribution and shall not
otherwise be entitled to receive the fair value of its Securities or any portion thereof except as
otherwise expressly provided for in this Agreement.




          Section 8.04. Liability of Securityholders.





     (a) Except as otherwise provided by this Agreement and the LLC Act, (i) the debts,
obligations and liabilities of the Company, whether arising in contract, tort or otherwise,
shall be solely the debts, obligations and liabilities of the Company, and (ii) no
Securityholder shall be obligated personally for any such debt, obligation or liability of
the Company solely by reason of being a Securityholder of the Company.




     (b) A Securityholder, in its capacity as such, shall have no liability in excess of (i)
the amount of its capital contributions, (ii) its share of any assets and undistributed
profits of the Company, (iii) any amounts required to be paid by such



24









 







Securityholder pursuant to this Agreement or any payment and/or indemnity in connection
with the registration of transfers of Securities and (iv) the amount of any distributions
wrongfully distributed to it to the extent set forth in the LLC Act.



ARTICLE 9



MANAGEMENT




          Section 9.01. Management of the Company.





     (a) Except as otherwise expressly provided in this Agreement or in the By-laws or as
required by the LLC Act, the business and affairs of the Company shall be managed, and all
actions required under this Agreement shall be determined, solely and exclusively by the
Board of Directors, which shall have all rights and powers on behalf and in the name of the
Company to perform all acts necessary and desirable to further the objects and purposes of
the Company, including the right to appoint Officers and to authorize any Officer to act on
behalf of the Company. Any action taken by the Board of Directors or any duly appointed and
acting Officer in accordance with this Agreement or the By-laws shall constitute the act of,
and shall serve to bind the Company.




     (b) The number of Directors of the Company shall initially be four, which number may be
increased or decreased as provided in this Agreement or in the By-laws, but shall never be
less than four nor more than seven. The initial Common Securityholder shall appoint the
initial Directors who shall serve until the first annual meeting of the Common
Securityholders and until their successors are duly elected and qualified. The names of the
initial Directors are set forth in Annex B hereto. The Common Securityholders may increase
the number of Directors and may fill any vacancy, whether resulting from an increase in the
number of Directors or otherwise, on the Board of Directors occurring before the first
annual meeting of Common Securityholders in the manner provided in the By-laws. Two
Independent Directors may be appointed to the Board of Directors pursuant to Section
10.04(i)(i) under the circumstances set forth therein. Each such Independent Director
shall have all the rights, powers and authorities of a Director to participate in actions by
the Board of Directors on behalf of the Company. No Director, including the Independent
Directors, shall be a resident of the Federal Republic of Germany.



          The names of the initial Officers, and their offices, are set forth in Annex B hereto. Each
such Officer shall have the duties and responsibilities that would apply to his or her office if
the Company were a corporation established under the Delaware General Corporation Law, except to
the extent that the Directors from time-to-time determine otherwise.





     (c) Each member of the Board of Directors shall be a “manager” of the Company for all
purposes of, and within the meaning of, the LLC Act.




     (d) Without limiting the generality of the foregoing, and subject to the provisions of
Section 9.02. and provided, that any such action does not cause the Company (i) to
be deemed to be required to register under the 1940 Act, (ii) to be treated as an
association or as a “publicly traded partnership” (within the meaning of Section 7704 of the
Code) or (iii) to be treated as engaged in trade or business within the United States for
U.S. federal income tax purposes, the Board of Directors shall



25









 







have all authority, rights and powers in the management of the business of the Company
to do any and all other acts and things necessary, proper, convenient or advisable to
effectuate the purposes of this Agreement, including by way of illustration but not by way
of limitation, the following:




          (i) to authorize the Company or any Officer of the Company on behalf of the Company, to
engage in transactions and dealings, including transactions and dealings with any
Securityholder or any Affiliate of any Securityholder and including the entering into and
performance by the Company of one or more agreements with any Person whereby, subject to the
supervision and control of the Board of Directors, any such other Person shall render or
make available to the Company managerial, investment, advisory or related services, office
space and other services and facilities upon such terms and conditions as may be provided in
such agreement or agreements (including, if deemed fair and equitable by the Board of
Directors, the compensation payable thereunder by the Company);




          (ii) to call meetings of Securityholders or any class or series thereof;




          (iii) to cause the Company to issue the Common Security and Preferred Securities in
accordance with the provisions of this Agreement;




          (iv) to pay all expenses incurred in forming the Company to the extent not paid by the
Bank or any other party responsible therefor;




          (v) to purchase and hold the Obligations, including as provided in Section 17.02;




          (vi) to authorize, suspend, pay, declare or otherwise determine and make Capital
Payments or other distributions, in cash or otherwise, on Securities, in accordance with the
provisions of this Agreement and of the LLC Act;




          (vii) to establish, when a record date is not otherwise established by this Agreement,
a record date with respect to all actions to be taken hereunder that require a record date
to be established, including with respect to allocations, distributions and voting rights;




          (viii) to redeem or repurchase on behalf of the Company, Securities which may be so
redeemed or repurchased in accordance with the provisions of this Agreement;




          (ix) to appoint (and dismiss from appointment) attorneys and agents on behalf of the
Company, and employ (and dismiss from employment) any and all Persons providing legal,
accounting or financial services to the Company, or such other employees or agents as the
Directors deem necessary or desirable for the management and operation of the Company;




          (x) to incur and pay all expenses and obligations incident to the operation and
management of the Company, which shall be paid for and furnished by the Bank pursuant to the
Services Agreement, including, without limitation, the services referred to in the preceding
paragraph, taxes, interest, rent and insurance;



26









 






          (xi) to open accounts and deposit, maintain and withdraw funds in the name of the
Company in banks, savings and loan associations, brokerage firms or other financial
institutions;




          (xii) to effect a dissolution of the Company and to act as liquidating trustee or the
Person winding up the Company’s affairs, all in accordance with and subject to the
provisions of this Agreement and of the LLC Act;




          (xiii) to effect the delivery of Class B Preferred Securities to the Holders of Trust
Securities generally in the event of the dissolution of the Trust;




          (xiv) to bring and defend on behalf of the Company actions and proceedings at law or
equity before any court or governmental, administrative or other regulatory agency, body or
commission or otherwise;




          (xv) to acquire and enter into any contract of insurance necessary or desirable for the
protection or conservation of the Company and its assets or otherwise in the interest of the
Company as the Board of Directors shall determine;




          (xvi) to prepare and cause to be prepared reports, statements, Officers’ Certificates
and other relevant information for distribution to the Securityholders or as required by
applicable regulatory authorities, in each case as may be required or determined to be
appropriate by the Board of Directors from time to time;




          (xvii) (to prepare and file all necessary returns and statements and pay all taxes,
assessments and other impositions applicable to the assets of the Company;




          (xviii) to purchase and maintain on behalf of the Company insurance to protect any
Director or Officer against any liability asserted against him or her, or incurred by him or
her, arising out of his or her status as such;




          (xix) to enforce the Company’s rights with respect to the issuer of the Obligations
held by the Company; and




          (xx) to execute all other documents or instruments, perform all duties and powers and
do all things for and on behalf of the Company in all matters necessary or desirable or
incidental to the foregoing.




     (e) Subject to the provisions of Section 9.02, the expression of any power or authority
of the Board of Directors shall not in any way limit or exclude any other power or authority
which is not specifically or expressly set forth in this Agreement.




     (f) The Company, the Bank or a Subsidiary of the Bank, if applicable, and any Director
or Officer on behalf of the Company, is hereby authorized to enter into, execute, deliver
and perform the Purchase Agreement, the Services Agreement, the Trust Agreement, the Agency
Agreement and any other agreement or instrument related thereto or contemplated thereby,
notwithstanding any other provision of this Agreement, the LLC Act or other applicable law,
rule or regulation, and without any further action, vote or approval of any Person.



27









 






     (g) Notwithstanding anything to the contrary in this Agreement, the Manager Trustee
shall not be deemed to be a member of the Board of Directors and shall have no right, power
or authority to participate in the management of the business and affairs of the Company by
the Board of Directors. Such Manager Trustee shall be appointed pursuant to Section 4.02 for
the sole purpose of qualifying this Agreement under the Trust Indenture Act and performing
the duties and obligations of the Manager Trustee provided by the Trust Indenture Act and as
expressly set forth herein.



          Section 9.02. Limits on Board of Directors’ Powers.





     (a) Notwithstanding anything to the contrary in this Agreement, the Board of Directors
shall not cause or permit the Company to, and the Company shall not:




          (i) acquire any assets other than as expressly provided by this Agreement or the
By-laws:




          (ii) possess Company property for other than a Company purpose;




          (iii) admit a Person as a Securityholder, except as expressly provided in this
Agreement;




          (iv) perform any act that would subject any Class B Preferred Securityholder to
liability for the debts, obligations or liabilities of the Company in any jurisdiction;




          (v) engage in any activity that is not consistent with the purposes of the Company, as
set forth in Section 6.01 of this Agreement; or




          (vi) engage in any activity that would cause the Company (i) to be required to register
under the 1940 Act, (ii) to be treated as an association or as a “publicly traded
partnership” (within the meaning of Section 7704 of the Code) or (iii) to be engaged in a
trade or business within the United States for U.S. federal income tax purposes.



          Section 9.03. Reliance by Third Parties. Persons dealing with the Company are entitled to
rely conclusively upon the power and authority of the Board of Directors and of any duly appointed
and acting Officers. In dealing with the Board of Directors or any Officer duly appointed and
acting as set forth in this Agreement or in the By-laws, no Person shall be required to inquire
into the authority of the Board of Directors or any such Officer to bind the Company.




          Section 9.04. No Management by Any Preferred Securityholders. Except as otherwise expressly
provided herein, no Preferred Securityholder, in its capacity as a Preferred Securityholder of the
Company, shall take part in the day-to-day management, operation or control of the business and
affairs of the Company. The Preferred Securityholders, in their capacity as Preferred
Securityholders of the Company, shall not be agents of the Company and shall not have any right,
power or authority to transact any business in the name of the Company or to act for or on behalf
of or to bind the Company.




28









 








          Section 9.05. Business Transactions of the Common Securityholder with the Company. Subject to
Section 9.01 and Section 9.02 of this Agreement and applicable law, a Common Securityholder and any
of its Affiliates may hold deposits of, and enter into business transactions with, the Company and,
subject to applicable law, shall have the same rights and obligations with respect to any such
matter as Persons who are not Common Securityholders or Affiliates thereof.




          Section 9.06. Outside Businesses. Any Director, Officer, Securityholder or Affiliate thereof
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 Company, and the Company
and the Securityholders 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 Company, shall not be deemed wrongful or improper. No
Director, Officer, Securityholder or Affiliate thereof shall be obligated to present any particular
investment opportunity to the Company even if such opportunity is of a character that, if presented
to the Company, could be taken by the Company, and any Director, Officer, Securityholder or
Affiliate thereof 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 opportunity




          Section 9.07. Duties of the Independent Directors. Any Independent Directors appointed
pursuant to Section 10.04(i)(i) shall, in making decisions with respect to the declaration of
Capital Payments or other matters affecting the rights of the Class B Preferred Securityholders as
set forth in Section 10.04, take into account only the interests of the Class B Preferred
Securityholders and, with respect to all other matters, the interests of the Common
Securityholders, the Class A Preferred Securityholders and the Class B Preferred Securityholders.
In considering the interests of the Class B Preferred Securityholders, the Independent Directors
shall owe the Class B Preferred Securityholders fiduciary duties comparable to those that a
director of a Delaware corporation owes to common shareholders of such corporation.




ARTICLE 10



COMMON SECURITY AND PREFERRED SECURITIES




          Section 10.01. Common Security and Preferred Securities.





     (a) The Securities of the Company shall be divided into the Common Security and
Preferred Securities. The Preferred Securities shall be divided into two separate classes
representing limited liability company interests in the Company, the Class A Preferred
Security and Class B Preferred Securities, and there shall be one class of common securities
representing limited liability company interests in the Company, the Common Security.




     (b) No Common Securityholder or Preferred Securityholder shall be entitled as a matter
of right to subscribe for or purchase, or have any pre-emptive right with respect to, any
part of any new or additional issue of Preferred Securities whatsoever, whether now or
hereafter authorized and whether issued for cash or other consideration or by way of a
dividend or other distribution.




     (c) A Preferred Security shall be represented by a certificate which, in the case of a
Class B Preferred Security, may be in global form in the circumstances set



29









 







forth in Section 16.08. The Common Security shall not be evidenced by any certificate
or other written instrument, but shall only be evidenced by this Agreement.




     (d) Upon issuance of the Preferred Securities as provided in this Agreement, the
Preferred Securities so issued shall be deemed to be validly issued, fully paid and
nonassessable.




     (e) In purchasing the Preferred Securities, each Preferred Securityholder agrees with
the Bank and the Company that the Bank, the Company and the Preferred Securityholders shall
treat Preferred Securityholders as Holders of the Preferred Securities in the Company for
all purposes, and not as the Holders of an interest in the Bank or in any other person.



          Section 10.02. General Provisions Regarding Preferred Securities.





     (a) There is hereby authorized for issuance and sale by the Company securities
designated as the Class A Preferred Security and the Class B Preferred Securities. The
specific designation, stated rate, liquidation preference amount, redemption terms, voting
rights, exchange limitations and other powers, preferences and special rights and
limitations of the Class A Preferred Security and the Class B Preferred Securities are set
forth respectively in Section 10.03 (with respect to the Class A Preferred Security) and in
Section 10.04 (with respect to the Class B Preferred Securities).




     (b) The Preferred Securities shall rank senior to all other Securities in respect of
the right to receive capital payments including Capital Payments or other distributions and
the right to receive payments out of the assets of the Company upon voluntary or involuntary
liquidation, dissolution, winding-up or termination of the Company in accordance with the
provisions hereof. All Preferred Securities redeemed, purchased or otherwise acquired by
the Company shall be canceled.




     (c) The Class A Preferred Security shall rank senior to the Class B Preferred
Securities in respect of the right to receive payments out of the upon voluntary or
involuntary liquidation, dissolution, winding-up or termination of the Company in accordance
with the provisions hereof, provided that any payments made by the Guarantor
pursuant to the Class B Preferred Guarantee shall be payable by the Company solely to the
Class B Preferred Securityholders.



          Section 10.03. Class A Preferred Security.





     (a) Designation. There shall hereby be designated as a class of Preferred Securities
one Class A Preferred Security (the “Class A Preferred Security”). The Class A Preferred
Security shall have an aggregate liquidation preference amount of
U.S.$25. The Class A
Preferred Security, at any time outstanding, shall be owned by the Bank or one or more
Qualified Subsidiaries.




     (b) Class A Capital Payment Rights. The Class A Preferred Securityholder shall be
entitled to receive when, as and if declared by the Board of Directors out of assets of the
Company legally available therefor, capital payments in cash or in assets of the Company.
Such a declaration shall occur only to the extent the Board of Directors does not declare
Capital Payments on the Class B Preferred



30









 







Securities at the Stated Rate in full on any Class B Payment Date after the Tier 1
Qualification Date. The Board of Directors is authorized, and it is the intention of the
Company, to declare a capital payment on the Class A Preferred Security in respect of Class
B Payment Periods commencing on and after the Tier 1 Qualification Date only to the extent
that (i) Capital Payments are not permitted to be declared on the Class B Preferred
Securities on any such Class B Payment Date at the Stated Rate in full due to insufficient
Distributable Profits of the Bank for the fiscal year preceding such Class B Payment Period
or an order of the BaFin (or any other relevant regulatory authority) prohibiting the Bank
from making any distribution of profits as described under Section 10.04(b) below and (ii)
the Company has sufficient Operating Profits. It is the intention of the Company not to pay
capital payments on the Class A Preferred Securities. Furthermore, the payment of capital
payments on the Class A Preferred Security is not a condition to the payment of Capital
Payments on the Class B Preferred Securities.




     (c) Redemption Terms. The Class A Preferred Security shall not be redeemable.




     (d) Voting Rights. The Class A Preferred Securityholders shall not be entitled to vote
other than as provided for elsewhere in this Agreement.




     (e) Liquidation Distribution. In the event of any voluntary or involuntary
liquidation, dissolution, winding-up or termination of the Company, the Class A Preferred
Securityholders shall be entitled to receive the Obligations (including interest accrued and
unpaid thereon) as their liquidation distribution. For the avoidance of doubt, the Class A
Preferred Securityholders shall not be entitled to share in any payments made by the
Guarantor pursuant to the Class B Preferred Guarantee.



          Section 10.04. Class B Preferred Securities.





     (a) Designation. There shall hereby be designated as a class of Preferred Securities
the Class B Preferred Securities (the “Class B Preferred Securities”). The Class B
Preferred Securities shall have a liquidation preference amount of U.S.$25 per Class B
Preferred Security (the “Class B Liquidation Preference Amount”). The Class B Preferred
Securities shall be issued in an aggregate Class B Liquidation Preference Amount of
U.S.$800,000,025.




     (b) Class B Capital Payment Rights.




          (i) Class B Preferred Securityholders shall be entitled to receive when, as and if
declared (or deemed declared) by the Board of Directors out of assets of the Company legally
available therefor, Capital Payments in cash on the Class B Preferred Securities held by
them, payable quarterly in arrears on February 23, May 23, August 23 and November 23 of each
year, (each a “Class B Payment Date”). Capital Payments payable on each Class B Payment
Date shall accrue from and including the immediately preceding Class B Payment Date (or May
23, 2007 with respect to the Capital Payment payable August 23, 2007) to but excluding the
relevant Class B Payment Date (each a “Class B Payment Period”). Capital Payments on the
Class B Preferred Securities shall be cumulative prior to the Tier 1 Qualification Date



31









 







and non-cumulative as of and after the Tier 1 Qualification date as provided in Section
10.04(b)(vi) below.




          (ii) For each Class B Payment Period Capital Payments shall accrue on the Class B
Liquidation Preference Amount of each Class B Preferred Security at a fixed rate of 6.55%
per annum (the “Stated Rate”), calculated on the basis of a 360-day year of twelve 30-day
months.




          (iii) If any Class B Payment Date or Class B 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.




          (iv) Capital Payments on the Class B Preferred Securities shall be paid out of amounts
received by the Company on the Obligations held by the Company from time to time.




          (v) Each Capital Payment declared (or deemed to be declared) shall be payable to the
Holders of record as they appear on the Register on the corresponding record date. The
record dates for the Class B Preferred Securities shall be (A) for those Class B Preferred
Securities held by the Property Trustee (regardless of their own form), so long as the Trust
Preferred Securities remain in book-entry form, and for Book-Entry Class B Preferred
Certificates, the end of business on the Business Day immediately preceding the relevant
Class B Payment Date and (B) in all other cases, the end of business on the 15th
Business Day prior to the relevant Class B Payment Date.




          (vi) Capital Payments on Class B Preferred Securities prior to, as of and after the
Tier 1 Qualification Date.




          (A) The provisions of this Section 10.04(b)(vi)(A) shall apply solely with respect to
Class B Payment Periods ending on or prior to, and shall have no force or effect with
respect to any Class B Payment Period ending after, the Tier 1 Qualification Date.




     (1) The right of Class B Preferred Securityholders to receive Capital Payments
is cumulative to the extent provided herein. If the Board of Directors does not
declare a Capital Payment in respect of any Class B Payment Period (and no such
Capital Payment is deemed to be declared), Class B Preferred Securityholders shall
have no right to receive a Capital Payment in respect of such Class B Payment
Period, and the Company shall have no obligation to pay a Capital Payment in respect
of such Class B Payment Period, whether or not Capital Payments are declared and
paid in respect of any future Class B Payment Period; however, any such Capital
Payment or portion thereof not declared (or deemed to have been declared) by the
Company in respect of any such Class B Payment Period shall be deferred.




     (2) If any Class B Preferred Securities are outstanding, no distributions shall
be declared or paid or set apart for payment on the Common Security for any Class B
Payment Period unless all Capital Payments, Additional Amounts thereon, if any, and
Arrears of Payments, if any, in



32









 







respect of the relevant Class B Payment Period have been declared and paid in
full at the Stated Rate.




     (3) Capital Payments on the Class B Preferred Securities shall only be
authorized to be declared, and declared (or deemed declared) Capital Payments are
only authorized to be paid, in each case on any Class B Payment Date to the extent
that (i) the Company has an amount of Operating Profits for such Class B Payment
Period ending on the day immediately preceding such Payment Date at least equal to
the amount of such Capital Payments and (ii) the Bank has an amount of Distributable
Profits for the next preceding fiscal year of the Bank for which audited
unconsolidated financial statements are available at least equal to the aggregate
amount of such Capital Payments on the Class B Preferred Securities and capital
payments or dividend or other distributions payable on Parity Capital Securities and
Preferred Tier 1 Capital Securities, if any, due in such fiscal year, pro rata on
the basis of Distributable Profits for such preceding fiscal year; provided,
however, that if the amount of such Distributable Profits is insufficient to
pay all such amounts on the Class B Preferred Securities, the Parity Capital
Securities and the Preferred Tier 1 Capital Securities, the Capital Payment on the
Class B Preferred Securities is authorized to be declared. In such case, however,
the portion of such Capital Payments that cannot be paid will be deferred and will
thereupon constitute Arrears of Payments.




     In determining the availability of sufficient Distributable Profits of the Bank
related to any fiscal year to 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, dividend or other distributions
already paid during the succeeding fiscal year of the Bank on Parity Capital
Securities and Preferred Tier 1 Capital Securities, if any, on the basis of such
Distributable Profits for such fiscal year will be deducted from such Distributable
Profits.




     Notwithstanding the foregoing, if the Bank or any of its Subsidiaries declares
or pays any dividend or makes any other payment or distribution on any Tier 2 Junior
Securities (other than payments on Tier 2 Junior Securities issued by wholly-owned
subsidiaries of the Bank, when such Tier 2 Junior Securities are held exclusively by
the Bank or by any of its other wholly-owned subsidiaries), the Company shall be
deemed to have declared Capital Payments on the Class B Preferred Securities at the
Stated Rate:




	 	(x)	 	payable on each of the next four Class B
Payment Dates, if the dividend, distribution or other payment on the
Tier 2 Junior Securities is paid in respect of an annual period;
	 
	 	(y)	 	payable on each of the next two Class B
Payment Dates, if the dividend, distribution or other payment on the
Tier 2 Junior Securities is paid in respect of a semi-annual period;
and
	 
	 	(z)	 	payable on the next Class B Payment Date, if
the dividend, distribution or other payment on the Tier 2 Junior
Securities is paid in respect of a quarterly period.




33









 












     Further, notwithstanding the foregoing, if the Bank or any of its Subsidiaries
declares or pays any dividends or makes any other payment or distribution on any
Parity Capital Securities or Preferred Tier 1 Capital Securities on the basis of
Distributable Profits in respect of any fiscal year of the Bank, the Company shall
be deemed to have declared Capital Payments on the Class B Preferred Securities at
the Stated Rate:




	 	(x)	 	payable on each of the next four Class B
Payment Dates, if the dividend, distribution or other payment on the
Parity Capital Securities or Preferred Tier 1 Capital Securities is
paid in respect of an annual period;
	 
	 	(y)	 	payable on each of the next two Class B
Payment Dates, if the dividend, distribution or other payment on the
Parity Capital Securities or Preferred Tier Capital 1 Securities is
paid in respect of a semi-annual period; and
	 
	 	(z)	 	payable on the next Class B Payment Date, if
the dividend, distribution or other payment on the Parity Capital
Securities or Preferred Tier 1 Capital Securities is paid in respect
of a quarterly period.






     If the dividend or other payment or distribution on Parity Capital Securities
or Preferred Tier 1 Capital Securities was in the full stated amount payable on such
Parity Capital Securities or Preferred Tier 1 Capital Securities in respect of such
fiscal year, Capital Payments will be deemed declared at the Stated Rate in full for
payment on such Payment Date or Payment Dates. If the dividend or other payment or
distribution on Parity Capital Securities or Preferred Tier 1 Capital Securities was
only a partial payment of the amount so owing, the amount of the Capital Payment
deemed declared for payment on such Payment Date or Payment Dates will be adjusted
proportionally, in which case the portion of such Capital Payment that is not so
paid will be deferred and will thereupon constitute Arrears of Payments.




     If the Bank or any of its Subsidiaries redeems, repurchases or otherwise
acquires any Parity Capital Securities, Preferred Tier 1 Capital Securities or Tier
2 Junior Securities (other than Parity Capital Securities, Preferred Tier 1 Capital
Securities or Tier 2 Junior Securities issued by wholly-owned subsidiaries of the
Bank, when such Parity Capital Securities, Preferred Tier 1 Capital Securities or
Tier 2 Junior Securities are held exclusively by the Bank or any of the Bank’s
wholly-owned subsidiaries) for any consideration except by conversion into or
exchange for common stock of the Bank (other than in connection with (1) with
transactions effected by or for the account of customers of the Bank or any of its
Subsidiaries or in connection with the distribution, trading or market-making in
respect of such securities, (2) in connection with the satisfaction by the Bank or
any of its Subsidiaries of its obligations under any employee benefit plans or
similar arrangements with or for the benefit of employees, officers, directors or
consultants, including hedging transactions effected to cover exposure to unvested
grants under employee benefit plans, (3) a reclassification of the



34









 







capital stock of the Bank or any of its Subsidiaries or the exchange or
conversion of one class or series of such capital stock for another class or series
of such capital stock or (4) the purchase of fractional interests in shares of the
capital stock of the Bank or any of its Subsidiaries pursuant to the provisions of
any security being converted into or exchanged for such capital stock), the Company
shall be deemed to have declared Capital Payments on the Class B Preferred
Securities at the Stated Rate in full payable on each of the next four Class B
Payment Dates contemporaneously with and/or immediately following the date on which
such redemption, repurchase or other acquisition occurred.




     Any Capital Payments so deemed to be declared pursuant to this Section
10.04(b)(vi)(A)(3) shall (i) only be authorized to be paid on any Class B Payment
Date to the extent the Company has an amount of Operating Profits for the related
Class B Payment Period at least equal to the amount of Capital Payments so deemed
declared and (ii) to the extent not authorized to be paid pursuant to clause (i)
shall not be considered due and payable for any purposes hereunder or under the
Class B Preferred Guarantee, except with respect to such Capital Payments deemed
declared after the Trust is dissolved and the Class B Preferred Securities have been
distributed to the Holders of the Trust Preferred Securities pursuant to the Trust
Agreement, which shall be considered due and payable for purposes of the Class B
Preferred Guarantee.




     (4) If the Company declares (or is deemed to have declared) a Capital Payment
in respect of any Class B Payment Period under circumstances where the Distributable
Profits of the Bank for the most recent preceding fiscal year are insufficient to
pay such Capital Payment in full as well as capital payments, dividends or other
distributions or payments then due on Parity Capital Securities, payment of all or a
portion of such Capital Payment on the Class B Preferred Securities will be
deferred. The portions of such Capital Payments that cannot be paid and have been
deferred in such case, together with the portions of Capital Payments that were not
declared or deemed to have been declared in respect of any Class B Payment Period
and therefore deferred, will be cumulative and will collectively constitute arrears
of payments with respect to the Class B Preferred Securities (“Arrears of
Payments”). Arrears of Payments will not themselves bear interest.




     The Company will pay outstanding Arrears of Payments on the Class B Preferred
Securities on the earliest of:




(a) the first Class B Payment Date after such deferral to the extent that
for the most recent preceding fiscal year for which audited financial
statements are available the Distributable Profits of the Bank are in an
amount exceeding the aggregate of (x) Capital Payments on the Class B
Preferred Securities due on such Class B Payment Date, (y) capital payments,
dividends or other distributions or payments on Parity Capital Securities,
if any, due in respect of such fiscal year, and (z) capital payments,
dividends or other distributions or payments on Preferred Tier 1 Securities,
if any, due in respect of such fiscal year, in which case, such Arrears of
Payments on the Class B Preferred Securities and any capital payments,
dividends or other distributions or



35









 







payments on Parity Capital Securities that have been deferred in accordance
with their terms (“Deferred Payments”), will be paid pro rata on the basis
of Distributable Profits for such preceding fiscal year, with any Arrears of
Payments that cannot be repaid pursuant to the foregoing on such Class B
Payment Date continuing to be deferred and to constitute Arrears of
Payments;




(b) the Class B Redemption Date, in the full amount of outstanding Arrears
of Payments; and




(c) the date on which an order is made for the winding up, liquidation or
dissolution of the Company or the Bank (other than for the purposes of or
pursuant to an amalgamation, reorganization or restructuring while solvent,
where the continuing entity assumes substantially all of the assets and
obligations of the Company or the Bank, as the case may be), in the full
amount of outstanding Arrears of Payments.




     (5) If, as a result of the deferral of Capital Payments, the Company would
receive payments of interest on the Obligations that would exceed Capital Payments
declared and paid on the Class B Preferred Securities on the corresponding Class B
Payment Date (in each such case, “Excess Interest Amounts”), the Bank will not pay
such Excess Interest Amounts to the Company in cash but will instead credit such
Excess Interest Amounts (without further instructions from the Company) to a
subordinated deposit account maintained by the Company with the Bank under and
subject to the Subordinated Deposit Agreement. The Subordinated Deposit Agreement
will provide that the deposit account at the Bank will bear interest at a rate of
0.75% per annum. Any interest accumulating in such deposit account will be payable
to the holder of the Company Common Security under the circumstances described
herein. The Subordinated Deposit Agreement will provide that, subject to the
subordination provisions of the Subordinated Deposit Agreement, the subordinated
deposit outstanding under the Subordinated Deposit Agreement will be terminated, and
such deposit repaid to the Company, at such time and to the extent as the Company is
required to pay Arrears of Payments. The subordinated deposit outstanding at any
time pursuant to the Subordinated Deposit Agreement will be subordinated such that
the obligations of the Bank under the Subordinated Deposit Agreement upon the
bankruptcy, insolvency or liquidation of the Bank will be (i) subordinated in right
of payment to the prior payment in full of all indebtedness and other liabilities of
the Bank to its creditors (including subordinated liabilities), except those which
by their terms rank on parity with or are subordinated to the Bank’s obligations
under the Subordinated Deposit Agreement, (ii) on a parity with
the most senior ranking preference
shares of the Bank, if any, and any obligations or instruments of the Bank which by
their terms on parity with such preference shares and (iii) senior
to the Junior Securities.




     (6) Notwithstanding any of the foregoing provisions of this Section
10.04(b)(vi)(A), however, Capital Payments on the Class B Preferred Securities shall
not be payable on any Class B Payment Date (or a date set for redemption or
liquidation) if on such date there is in effect an order of the



36









 







BaFin (or any other relevant regulatory authority) prohibiting the Bank from
making any distribution of profits. The Company shall have no obligation to make
up, at any time, any Capital Payments (including Arrears of Payments) not paid in
full by the Company as a result of insufficient Operating Profits of the Company, or
an order of the BaFin.




          (B) The provisions of this Section 10.04(b)(vi)(B) shall apply solely with respect to
Class B Payment Periods ending after, and shall have no force or effect with respect to any
Class B Payment Period ending prior to or on, the Tier 1 Qualification Date.




     (1) The right of Class B Preferred Securityholders to receive Capital Payments
is noncumulative. If the Board of Directors does not declare a Capital Payment in
respect of any Class B Payment Period (and no such Capital Payment is deemed to be
declared), Class B Preferred Securityholders shall have no right to receive a
Capital Payment in respect of such Class B Payment Period, and the Company shall
have no obligation to pay a Capital Payment in respect of such Class B Payment
Period, whether or not Capital Payments are declared (or deemed declared) and paid
in respect of any future Class B Payment Period.




     (2) If any Class B Preferred Securities are outstanding, no distributions shall
be declared or paid or set apart for payment on the Common Security for any Class B
Payment Period unless all Capital Payments and Additional Amounts thereon, if any,
in respect of the relevant Class B Payment Period have been declared and paid in
full at the Stated Rate.




     (3) Capital Payments on the Class B Preferred Securities shall only be
authorized to be declared, and declared (or deemed declared) Capital Payments are
only authorized to be paid, in each case on any Class B Payment Date to the extent
that (i) the Company has an amount of Operating Profits for such Class B Payment
Period ending on the day immediately preceding such Class B Payment Date at least
equal to the amount of such Capital Payments and (ii) the Bank has an amount of
Distributable Profits for the preceding fiscal year of the Bank for which audited
financial statements are available at least equal to the aggregate amount of such
Capital Payments on the Class B Preferred Securities and Capital Payments on the
Class B Preferred Securities theretofore paid and capital payments or dividend or
other distributions payable on Preferred Tier 1 Securities, if any, pro rata, on the
basis of Distributable Profits for such preceding fiscal year; provided,
that:




(a) Notwithstanding the foregoing, if the Bank or any of its Subsidiaries
declares or pays any dividends or makes any other payment or distribution on
any Preferred Tier 1 Securities (other than a payment in kind of ordinary
shares of common stock or other Junior Securities or payments on Preferred
Tier 1 Securities issued by wholly-owned Subsidiaries of the Bank, when such
Preferred Tier 1 Securities are held exclusively by the Bank or by any of
its other wholly-owned Subsidiaries), the Company shall be deemed to have
declared Capital Payments on the Class B Preferred Securities at the Stated
Rate pro rata (in the same proportion that the payment that was made on the



37









 







Preferred Tier 1 Security had to the amount that was payable on such
Preferred Tier 1 Security at the time of such payment):




	 	(i)	 	payable on each of the next four
Class B Payment Dates, if the dividend, distribution or
other payment on the Preferred Tier 1 Security is paid in
respect of an annual period;
	 
	 	(ii)	 	payable on each of the next two
Class B Payment Dates, if the dividend, distribution or
other payment on the Preferred Tier 1 Security is paid in
respect of a semi-annual period; or
	 
	 	(iii)	 	payable on the next Class B
Payment Date, if the dividend, distribution or other
payment on the Preferred Tier 1 Security is paid in
respect of a quarterly period.






(b) Further, notwithstanding the foregoing, if the Bank or any of its
Subsidiaries declares or pays any dividends or makes any other payment or
distribution on its Junior Securities (other than payments in kind of
ordinary shares of common stock or other Junior Securities or payments on
Junior Securities issued by wholly-owned Subsidiaries of the Bank, when such
Junior Securities are held exclusively by the Bank or by any of its other
wholly-owned Subsidiaries), the Company shall be deemed to have declared
Capital Payments on the Class B Preferred Securities at the Stated Rate in
full:




	 	(i)	 	payable on each of the next four
Class B Payment Dates, if the dividend, distribution or
other payment on the Junior Security is paid in respect of
an annual period;
	 
	 	(ii)	 	payable on each of the next two
Class B Payment Dates, if the dividend, distribution or
other payment on the Junior Security is paid in respect of
a semi-annual period; and
	 
	 	(iii)	 	payable on the next Class B
Payment Date, if the dividend, distribution or other
payment on the Junior Security is paid in respect of a
quarterly period.






(c) If the Bank or any of its Subsidiaries redeems, repurchases or otherwise
acquires any Preferred Tier 1 Securities or Junior Securities (other than
Preferred Tier 1 Securities or Junior Securities issued by wholly-owned
Subsidiaries of the Bank, when such Preferred Tier 1 or Junior Securities
are held exclusively by the Bank or by any of the Bank’s wholly-owned
Subsidiaries), for any consideration (except by conversion into or exchange
for common stock of the Bank or other Junior Securities) or any moneys are
paid to or made available for a



38









 







sinking fund for, or for redemption of, any such securities, other than in
connection with:




	 	(i)	 	transactions effected by or for
the account of customers of the Bank or any of its
Subsidiaries or in connection with the distribution,
trading or market-making in respect of such securities,
	 
	 	(ii)	 	the satisfaction by the Bank or
any of its Subsidiaries of its obligations under any
employee benefit plans or similar arrangements with or for
the benefit of employees, officers, directors or
consultants, including hedging transactions effected to
cover exposure of yet unvested grants under employee
benefit plans,
	 
	 	(iii)	 	a reclassification of the capital
stock of the Bank or any of its Subsidiaries or the
exchange or conversion of one class or series of such
capital stock for another class or series of such capital
stock, or
	 
	 	(iv)	 	the purchase of fractional
interests in shares of the capital stock of the Bank or
any of its Subsidiaries pursuant to the provisions of any
security being converted into or exchanged for such
capital stock;






the Company shall be deemed to have declared Capital Payments on the Class B
Preferred Securities at the Stated Rate in full payable on each of the first
four Class B Payment Dates falling contemporaneously with or immediately
following the date on which such redemption, repurchase or other acquisition
occurred.




     Any Capital Payments so deemed to be declared pursuant to clauses (a), (b) or
(c) of this Section 10.04(b)(vi)(B)(3) shall (i) only be authorized to be paid on
any Class B Payment Date to the extent the Company has an amount of Operating
Profits for the related Class B Payment Period at least equal to the amount of
Capital Payments so deemed declared and (ii) to the extent not authorized to be paid
pursuant to clause (i) shall not be considered due and payable for any purposes
hereunder or under the Class B Preferred Guarantee, except with respect to such
Capital Payments deemed declared after the Trust is dissolved and the Class B
Preferred Securities have been distributed to the Holders of the Trust Preferred
Securities pursuant to the Trust Agreement, which shall be considered due and
payable for purposes of the Class B Preferred Guarantee.




     (4) Notwithstanding any of the foregoing provisions of this Section 10.04,
however, Capital Payments on the Class B Preferred Securities shall not be payable
on any Class B Payment Date (or a date set for redemption or liquidation) if on such
date there is in effect an order of the BaFin (or any other relevant regulatory
authority) prohibiting the Bank from making any



39









 







distribution of profits (including to the holders of Preferred Tier 1
Securities, if any such Preferred Tier 1 Securities are then outstanding).




     (5) The Company shall have no obligation to make up, at any time, any Capital
Payments not paid in full by the Company as a result of insufficient Operating
Profits of the Company, insufficient Distributable Profits of the Bank or an order
of the BaFin.




     (c) Additional Amounts. The payment of Capital Payments on the Class B Preferred
Securities, and any amount payable upon redemption thereof or in liquidation, shall be made
without any 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 Company shall pay as additional Capital Payments (or Arrears of Payments, as the
case may be), such additional amounts (the “Additional Amounts”) to the Class B Preferred
Securityholders as may be necessary in order that the net amounts received by the Class B
Preferred Securityholders and the Trust Preferred Securityholders after such deduction or
withholding for or on account of Withholding Taxes shall equal the amounts that otherwise
would have been received had no such deduction or withholding been required,
provided, however, that no such Additional Amounts shall be payable in
respect of the Class B Preferred Securities




          (i) in respect of Class B Payment Periods ending prior to the Tier 1 Qualification
Date, if and to the extent that the Company is unable to pay because such payment would
exceed the Distributable Profits of the Bank for the fiscal year in respect of which the
relevant Capital Payments are payable (after subtracting from such Distributable Profits the
amount of Capital Payments on the Class B Preferred Securities and any 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 Additional Amounts
will be payable), in which case such Additional Amounts shall be deferred and will thereupon
constitute Arrears of Payments;




          (ii) in respect of Class B Payment Periods beginning on or after the Tier 1
Qualification Date, if and to the extent that the Company is unauthorized to pay because of
insufficient Distributable Profits of the Bank for the preceding fiscal year;




          (iii) with respect to any Withholding Taxes that are payable by reason of a Holder or
beneficial owner of Class B Preferred Securities (other than 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



40









 







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




          (v) to the extent such deduction or withholding can be avoided or reduced if the Holder
or beneficial owner of Class B 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
Class B 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).




     (d) Redemption Terms.




          (i) On May 23, 2017 (the “Initial Redemption Date”) and on any Class B Payment Date
falling on or after the Initial Redemption Date, the Class B Preferred Securities shall be
redeemable at the option of the Company, in whole but not in part, at a redemption price per
Class B Preferred Security equal to the Class B Liquidation Preference Amount, plus any
accrued and unpaid Capital Payments in respect of the then current Class B Payment Period to
but excluding the date of redemption (the “Class B Redemption Date”), plus Arrears of
Payments, if any, and Additional Amounts, if any (the “Redemption Price”), provided
that, the Company may exercise its right to redeem the Class B Preferred Securities
only if (A) the Company has given 30 calendar days’ prior notice (or such longer period as
may be required by the relevant regulatory authorities) to the Class B Preferred
Securityholders of its intention to redeem the Class B Preferred Securities on the Class B
Redemption Date and (B) the Company has obtained any required regulatory approvals.




          (ii) The Company shall have the right, upon the occurrence of a Company Special
Redemption Event, to redeem the Class B Preferred Securities at any time upon at least 30
calendar days’ prior notice, in whole but not in part, at the Redemption Price, subject to
the Company having obtained any required regulatory approvals.




          (iii) In the event that payment of the Redemption Price in respect of any Class B
Preferred Securities is improperly withheld or refused and not paid, Capital Payments on
such Class B Preferred Securities shall continue to accrue at the Stated Rate from the
designated Class B Redemption Date to the date of actual payment of the Redemption Price, in
which case the actual payment date shall be considered the Class B Redemption Date for
purposes of calculating the Redemption Price.



41









 






          (iv) No redemption of the Class B Preferred Securities shall take place for any reason
unless on the Class B Redemption Date (i) the Company has an amount of cash funds (by reason
of payments on the Obligations or the Class B Preferred Guarantee) at least equal to the
Redemption Price, plus Additional Amounts, if any, (ii) the Company has an amount of
Operating Profits for the current Payment Period at least equal to the Capital Payments on
the Class B Preferred Securities accrued and unpaid as of the Class B Redemption Date plus,
if the Tier 1 Qualification Date has not occurred, all outstanding Arrears of Payments, if
any, plus Additional Amounts, if any, (iii) the Bank has an amount of Distributable Profits
for the preceding fiscal year of the Bank for which audited unconsolidated financial
statements are available at least equal to the Capital Payments on the Class B Preferred
Securities accrued and unpaid as of the Class B Redemption Date, plus, if the Tier 1
Qualification Date has not occurred, all outstanding Arrears of Payments, if any, plus
Additional Amounts, if any, plus (x) if the Tier 1 Qualification Date has not occurred, the
aggregate amount of Capital Payments (including Arrears of Payments, if any) on the Class B
Preferred Securities theretofore paid, and capital payments payable on Parity Capital
Securities, or (y) if the Tier 1 Qualification Date has occurred, the aggregate amount of
Capital Payments on the Class B Preferred Securities theretofore paid, and capital payments
or dividends payable on Preferred Tier 1 Securities, if any, pro rata, on the basis of
Distributable Profits for such preceding fiscal year, and (iv) no order of the BaFin (or any
other relevant regulatory authority) is in effect prohibiting the Bank from making any
distribution of profits (including to the holders of Preferred Tier 1 Securities, if any
such Preferred Tier 1 Securities are then outstanding).



          No redemption of Class B Preferred Securities, whether on a Class B Payment Date, on or after
the Initial Redemption Date or upon the occurrence of a Company Special Redemption Event, shall
require the vote or consent of any of the Class B Preferred Securityholders.





     (e) Redemption Procedures.




          (i) An irrevocable notice of redemption of Class B Preferred Securities (a “Redemption
Notice”) shall be given by the Board of Directors on behalf of the Company, in the manner
prescribed in Section 19.09 hereof, to each Class B Preferred Securityholder not fewer than
30 calendar days before the proposed 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, postage prepaid, to Class B Preferred Securityholders. Each
Redemption Notice shall be addressed to the Class B Preferred Securityholders 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 Class B Preferred Securityholder shall affect the
validity of the redemption proceedings with respect to any other Class B Preferred
Securityholder.




          (ii) By 9:00 a.m. New York City time on the Class B Redemption Date, the Company shall
(A) with respect to Book-Entry Class B 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 (B) with respect to Definitive Class B Preferred
Securities, deposit with



42









 







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 Class B Preferred Securityholder (at its address in the Register on
the Class B Redemption Date) upon surrender of its Class B Preferred Certificates;
provided, however, that for so long as the Trust owns the Class B Preferred
Securities (which shall 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), payment of the Redemption Price shall be made by wire in same
day funds to the Property Trustee by 9:00 a.m., New York City time on the Class B Redemption
Date. Upon satisfaction of the foregoing conditions, all rights of Class B Preferred
Securityholders so called for redemption shall cease on the Class B Redemption Date, except
the right of the Class B Preferred Securityholders to receive the applicable Redemption
Price (without interest thereon from and after the Class B Redemption Date).



          If the Class B 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.





     (f) Liquidation Terms




          (i) In the event of any voluntary or involuntary liquidation, dissolution, winding up
or termination of the Company, each Class B Preferred Securityholder shall, subject to the
limitations described herein, be entitled to receive the Class B Liquidation Preference
Amount of U.S.$25 per Class B Preferred Security, plus, in each case, accrued and unpaid
Capital Payments in respect of the then current Class B Payment Period to but excluding the
date of liquidation, and Arrears of Payments and Additional Amounts, if any. Such
entitlement shall arise following the liquidation distribution of the Obligations to the
Class A Preferred Securityholders and before any distribution of assets is made to Common
Securityholders.




          (ii) In the event of any voluntary or involuntary liquidation, dissolution, winding up
or termination of the Trust not involving redemption of the Class B Preferred Securities or
the liquidation of the Company, the Holders of the Trust Preferred Securities shall be
entitled to receive Class B Preferred Securities with a corresponding Class B Liquidation
Preference Amount.




     (g) Additional Capital and Indebtedness. For so long as any of the Class B Preferred
Securities are outstanding, the Company shall not issue, without the unanimous consent of
all the Class B Preferred Securityholders (excluding any Class B Preferred Securities held
by the Bank or any of its Affiliates), any additional equity securities ranking prior to or
pari passu with the Class B Preferred Securities as to periodic distribution rights or
rights on liquidation or dissolution, or incur any indebtedness for money borrowed.




     Notwithstanding the foregoing, the Company will, from time to time on or prior to the
fifth anniversary of the Issue Date, and without the consent of the holders of the Class B
Preferred Securities, issue additional Class B Preferred Securities having the same terms
and conditions as the Class B Preferred Securities in all



43









 







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, upon notice from the Bank and in consideration for Obligations of a principal
amount equal to the aggregate liquidation preference amount of such 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 on such
Obligations, the issue price and any other deviations required for compliance with
applicable law.




     (h) Class B Preferred Guarantee. To the extent set forth in the Class B Preferred
Guarantee, the Guarantor has agreed to pay the Class B Preferred Securityholders, as and
when due, the Class B Preferred Guarantee Payments. As set forth in the Class B Preferred
Guarantee, the obligations of the Guarantor under the Class B Preferred Guarantee shall be
several and independent of the Company’s obligations hereunder. The Class B Preferred
Securityholders, by acceptance of such Class B Preferred Securities, acknowledge and agree
to the subordination provisions in, and other terms of, the Class B Preferred Guarantee.




     (i) Rights of Holders.




          (i) If for four consecutive Class B Payment Periods, Capital Payments on the Class B
Preferred Securities and any Additional Amounts in respect of such Capital Payments have not
been paid at the Stated Rate in full by the Company or by the Guarantor under the Class B
Preferred Guarantee, the Class B Preferred Securityholders shall be entitled to appoint two
Independent Directors to the Board of Directors. Such Independent Directors shall be elected
by ordinary resolution, passed by Holders of a Majority of the Class B Preferred Securities
entitled to vote thereon, as determined in accordance with Section 11.01, present in person
or by proxy at a separate general meeting of such Class B Preferred Securityholders convened
for that purpose (which shall be called at the request of any Class B Preferred
Securityholder entitled to vote thereon). Any Independent Director so appointed shall vacate
office if, in such Independent Director’s sole determination, Capital Payments have been
paid regularly at the Stated Rate in full by the Company or the Guarantor under the Class B
Preferred Guarantee or the Trust Preferred Guarantee for one calendar year. Any such
Independent Director may be removed by, and shall not be removed except by, the vote of
Holders of a Majority of the Class B Preferred Securities entitled to vote thereon, at a
meeting of the Company’s Securityholders or of the Class B Preferred Securityholders
entitled to vote thereon, called for that purpose.




          (ii) The Holders of a Majority of the Class B Preferred Securities have the right to
direct the time, method and place of conducting of any proceeding for any remedy available
to the Manager Trustee in respect of enforcing the rights of the Class B Preferred
Securities under this Agreement, or direct the exercise of any trust or power conferred upon
the Manager Trustee under this Agreement.




          (iii) If the Manager Trustee fails to enforce its rights under the Agreement after a
Class B Preferred Securityholder has made a written request, such Class B Preferred
Securityholder may, to the fullest extent permitted by applicable law, institute a legal
proceeding directly against the Company to enforce the Manager



44









 







Trustee’s rights under this Agreement, without first instituting a legal proceeding
against the Manager Trustee or any other person or entity.




          Notwithstanding the foregoing, if the Company has failed to pay the Redemption Price
with respect to Class B Preferred Securities duly called for redemption, any Capital
Payments declared (or deemed declared), including Additional Amounts, if applicable, that
are due and owing, a Class B Preferred Securityholder may take any action authorized by this
Agreement and may directly institute a proceeding in such Class B Preferred Securityholder’s
own name against the Company for enforcement of this Agreement for such payment or against
the Guarantor for enforcement of the Class B Preferred Guarantee in respect of such payment.




     (j) Ratings and Clearance. If the Class B Preferred Securities are distributed to
Holders of Trust Preferred Securities in connection with the involuntary or voluntary
dissolution, winding up or liquidation of the Trust, the Company shall use its commercially
reasonable efforts to cause the Class B Preferred Securities (i) to be assigned the rating
at which the Trust Preferred Securities are then rated and (ii) to be eligible for
settlement and clearance through DTC and its participants, if the Trust Preferred Securities
are then eligible for clearance through DTC and consequently to be issued in the form of one
or more global certificates registered in the name of DTC as the depository or its nominee,
and (iii) to be listed on the New York Stock Exchange or on such other national securities
exchange as the Trust Preferred Securities are then listed or quoted.




     (k) Tier 1 Qualification Election. At any time on or before the tenth Business Day
preceding the Class B Payment Date falling closest to but not later than the fifth
anniversary of the Issue Date, the Bank in its sole discretion may give notice to the
Company that, as of and after the effective date designated in such notice, the provisions
of Section 10.04(b)(vi)(A) hereof shall no longer apply, and the terms of Section
10.04(b)(iv)(B) hereof shall apply, to the Class B Preferred Securities. Such election is
referred to as the “Tier 1 Qualification Election” and the date on and after which it is
effective as the “Tier 1 Qualification Date.”




     The Tier 1 Qualification Date may be any Class B Payment Date after the Issue Date and
until (and including) the Class B Payment Date falling closest
to, but not later than, the fifth anniversary of
the Issue Date. The Company will give notice to the Trust pursuant to the Trust Agreement
immediately upon receipt from the Bank of the Tier 1 Qualification Election.




     Once the Bank has made the Tier 1 Qualification Election and the Tier 1 Qualification
Date has occurred, the Bank may not elect to revert to the terms in effect before the Tier 1
Qualification Election.




     The effectiveness of the Tier 1 Qualification Election is subject to the conditions
that, on the date on which notice of the Tier 1 Qualification Election is given and on the
Tier 1 Qualification Date,




	 	(w)	 	the BaFin has not applied for the initiation of insolvency
proceedings against Deutsche Bank Aktiengesellschaft,




45









 






	 	(x)	 	Deutsche Bank Aktiengesellschaft has not given notice to the
BaFin that it is insolvent (zahlungsunfähig) or overindebted (überschuldet)
within the meaning of §46b of the German Banking Act (Gesetz über das
Kreditwesen),
	 
	 	(y)	 	the BaFin (or any other relevant regulatory authority) has not
prohibited the Bank from making the Tier 1 Qualification Election, and
	 
	 	(z)	 	all Arrears of Payments, if any, have been paid or will be paid
by or on the Tier 1 Qualification Date.






If any of these conditions are not met with respect to the Tier 1 Qualification Election,
the Tier 1 Qualification Election shall not occur and the Bank shall be deemed to have
rescinded the notice. In such case, the Bank may make the Tier 1 Qualification Election at a
later date in compliance with the provisions summarized in the preceding two paragraphs.



ARTICLE 11



VOTING AND MEETINGS




          Section 11.01. Voting Rights of Preferred Securityholders.





     (a) Except as shall be otherwise expressly provided herein, in the By-laws or as
otherwise required by the LLC Act or other applicable law, the Preferred Securityholders
shall have no right or power to vote on any question or matter or in any proceeding or to be
represented at, or to receive notice of, any meeting of Securityholders.




     (b) Notwithstanding that Securityholders holding Preferred Securities may become
entitled to vote or consent under any of the circumstances described in this Agreement or in
the By-laws, any of the Preferred Securities that are beneficially owned by the Bank, or any
of its Subsidiaries or Affiliates (other than the Trust), either directly or indirectly,
shall not, in such case, be entitled to vote or consent and shall, for the purposes of such
vote or consent, be treated as if such Preferred Securities were not outstanding, except for
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 Preferred Securities; 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 Preferred Securities may vote
or consent with respect to such pledged Preferred Securities pursuant to the terms of such
pledge.



          Section 11.02. Voting Rights of Common Securityholders. Except as otherwise provided herein,
and except as otherwise provided by the LLC Act or other applicable law, all voting rights of the
Securityholders shall be vested exclusively in the Common Securityholders. The Common
Securityholders shall vote as a single class on any matter on which the Common Securityholders have
the right to vote regardless of the voting rights of any other Securityholder.




          Section 11.03. Meetings of the Securityholders.




46









 









     (a) Meetings of the Securityholders of any class or of all classes of Securities may be
called at any time by the Chairman of the Board, if any, the President, the Board of
Directors or any of the Independent Directors, if any, as provided by this Agreement or the
By-laws. A special meeting of Securityholders shall also be called by the Secretary upon
the written request, stating the purpose of the meeting, of Securityholders who together own
of record a majority of the Securities entitled to vote at such meeting, or, if so provided
herein, upon the written request of any Class B Preferred Securityholder entitled to vote in
such special meeting.




     (b) Except to the extent otherwise provided, the following provisions shall apply to
meetings of Securityholders:




          (i) Securityholders may vote in person or by proxy at such meeting. Whenever a vote,
consent or approval of Securityholders is permitted or required under this Agreement, such
vote, consent or approval may be given at a meeting of Securityholders or by written
consent.




          (ii) Each Securityholder may authorize any Person to act for it by proxy on all matters
in which a Securityholder is entitled to participate, including waiving notice of any
meeting, or voting or participating at a meeting. Every proxy must be signed by the
Securityholder or its attorney-in-fact. Every proxy shall be revocable at the pleasure of
the Securityholder executing it at any time before it is voted.




          (iii) Each meeting of Securityholders shall be conducted by the Board of Directors or
by such other Person that the Board of Directors may designate.




          (iv) Any required vote of Preferred Securityholders may be given at a separate meeting
of such Preferred Securityholders convened for such purpose or at a meeting of
Securityholders of the Company or pursuant to written consent. The Board of Directors shall
cause a notice of any meeting at which Preferred Securityholders holding Preferred
Securities are entitled to vote pursuant to Section 7.04 or of any matter upon which action
may be taken by written consent of such Preferred Securityholders, to be given to each
Holder of record of such Preferred Securities in the manner set forth in Section 19.09
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 Preferred
Securityholders are entitled to vote or of such matters upon which written consent is sought
and (iii) instructions for the delivery of proxies or consents.




     (c) Subject to the provisions of this Agreement, the Board of Directors shall establish
all other provisions relating to meetings of Securityholders, including notice of the time,
place or purpose of any meeting at which any matter is to be voted on by any
Securityholders, 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.



47









 





ARTICLE 12



CAPITAL PAYMENTS




          Section 12.01. Capital Payments.





     (a) Subject to the terms of this Article 12, (i) Class B Preferred Securityholders
shall receive periodic Capital Payments, if any, in accordance with Article 10 of this
Agreement only when, as and if declared or deemed declared by the Board of Directors and
(ii) Class A Preferred Securityholders and Common Securityholders shall receive periodic
distributions, subject to Article 10 of this Agreement and to the provisions of the LLC Act,
only when, as and if declared by the Board of Directors.




     (b) A Securityholder shall not be entitled to receive any Capital Payment or other
distribution with respect to any Class B Capital Payment Date (and any such Capital Payment
or other distribution shall not be considered due and payable), irrespective of whether such
Capital Payment or other distribution has been declared by the Board of Directors, until
such time as the Company shall have funds legally available for the payment of such Capital
Payment or such other distribution to such Securityholder pursuant to the terms of this
Agreement and the LLC Act, and notwithstanding any provision of Section 18-606 of the LLC
Act to the contrary, until such time, a Securityholder shall not have the status of a
creditor of the Company, or the remedies available to a creditor of the Company.



          Section 12.02. Limitations on Distributions. Notwithstanding any provision to the contrary
contained in this Agreement, the Company shall not make a distribution (including a Capital
Payment) to any Securityholder on account of its Security if such distribution would violate
Section 18-607 of the LLC Act or other applicable law. No dividends shall be declared and paid on
the Common Security unless all Capital Payments (and Arrears of Payments, if any, and Additional
Amounts, if any) on the Class B Preferred Securities, if any, have been declared and paid in full
at the Stated Rate.




          Section 12.03. Distribution Policy. The Company shall distribute the full amount of Operating
Profits for each Class B Payment Period as a capital payment or dividend to the Company’s
Securityholders on the terms, and subject to the provisions, of this Agreement.




ARTICLE 13



BOOKS AND RECORDS




          Section 13.01. Financial Statements. The Board of Directors shall, as soon as available after
the end of each Fiscal Year, cause to be prepared and mailed to each Common Securityholder and
Preferred Securityholder of record the audited financial statements of the Company for such Fiscal
Year prepared in accordance with generally accepted accounting principles in the United States of
America.




          Section 13.02. Limitation on Access to Records. Notwithstanding any provision of this
Agreement, the Board of Directors may, to the maximum extent permitted by law, keep, or cause to be
kept, confidential from the Preferred Securityholders, for such period of time as the Board of
Directors deems reasonable, any information the disclosure of which the Board of Directors
reasonably believes to be in the nature of trade secrets or other




48









 








information the disclosure of which the Board of Directors in good faith believe is not in the
best interest of the Company or could damage the Company or its business or which the Company or
the Board of Directors are required by law or by an agreement with any Person to keep confidential.




          Section 13.03. Accounting Method. For both financial and tax reporting purposes and for
purposes of determining profits and losses, the books and records of the Company shall be kept on
the accrual method of accounting applied in a consistent manner and shall reflect all Company
transactions and be appropriate and adequate for the Company’s business.




          Section 13.04. Annual Audit. As soon as practical after the end of each Fiscal Year, but not
later than 90 days after such end, the financial statements of the Company shall be audited by a
firm of independent certified public accountants selected by the Board of Directors, and such
financial statements shall be accompanied by a report of such accountants containing their opinion.
The cost of such audits shall be an expense of and be paid by the Bank.




ARTICLE 14



TAX MATTERS




          Section 14.01. Company Tax Returns.





     (a) The Bank is hereby designated as the Company’s “Tax Matters Partner” under Section
6231(a)(7) of the Code and shall have all the powers and responsibilities of such position
as provided in the Code. The Bank is specifically directed and authorized to take whatever
steps the Bank, in its discretion, deems necessary or desirable to perfect such designation,
including filing any forms or documents with the Internal Revenue Service and taking such
other action as may from time to time be required under the Treasury Regulations. Expenses
incurred by the Tax Matters Partner in its capacity as such shall be borne by the Company.




     (b) The Tax Matters Partner shall cause to be prepared and timely filed all tax returns
required to be filed for the Company. The Tax Matters Partner may, in its discretion, cause
the Company to make or refrain from making any U.S. federal, state or local income or other
tax elections for the Company that it deems necessary or advisable, including, without
limitation, any election under Section 754 of the Code or any successor provision.



          Section 14.02. Tax Reports. The Tax Matters Partner shall, as promptly as practicable and in
any event within 90 days of the end of each fiscal year, cause to be prepared and mailed by the
Company to each Preferred Securityholder of record Internal Revenue Service Schedule K-1 and any
other forms that are necessary or advisable in order to permit the Securityholders to comply with
U.S. federal and any other income tax requirements.




          Section 14.03. Taxation as a Partnership. The Company shall take any necessary steps to be
treated as a partnership for U. S. federal income tax purposes and shall not file any election to
be treated as anything other than a partnership for such purposes. The Bank and the Company will
use their commercially reasonable efforts to ensure that the

49









 







Company will not be an association or a publicly traded partnership taxable as a corporation
for United States federal income tax purposes.




ARTICLE 15



EXPENSES




          Section 15.01. Expenses. Except as otherwise provided herein or in the Services Agreement as
long as it is in effect, the Bank, shall be responsible for, and shall pay, all expenses of the
Company, provided that such expenses or obligations are those of the Company or are
otherwise incurred by or pursuant to the direction of the Board of Directors in connection with
this Agreement, including, without limitation:





     (a) all costs and expenses related to the business of the Company and all routine
administrative expenses of the Company, including the maintenance of books and records of
the Company, the preparation and dispatch to the Securityholders of checks, financial
reports, tax returns and notices required pursuant to this Agreement and the holding of any
meetings of the Securityholders;




     (b) all expenses incurred in connection with any litigation involving the Company
(including the cost of any investigation and preparation) and the amount of any judgment or
settlement paid in connection therewith (other than expenses incurred by any Director in
connection with any litigation brought by or on behalf of any Securityholder against such
Director);




     (c) all expenses for indemnity or contribution payable by the Company to any Person;




     (d) all expenses incurred in connection with the collection of amounts due to the
Company from any Person;




     (e) all expenses incurred in connection with the preparation of amendments or
restatements to this Agreement; and




     (f) all expenses incurred in connection with the involuntary or voluntary liquidation,
dissolution, winding up or termination of the Company; provided, however,
that (i) all expenses relating to the organization of the Company, the preparation of this
Agreement and the issuance of the Securities and (ii) any expenses which relate to the
organization and offering of the Securities but are not explicitly referenced to in Section
15.01 hereof or in the Services Agreement shall be paid by the Bank.



ARTICLE 16



TRANSFERS OF SECURITIES BY SECURITYHOLDERS



AND RELATED MATTERS




          Section 16.01. Transfer of the Common Security and Class A Preferred Security. The Bank
undertakes that the Bank or one or more other Qualified Subsidiaries of the Bank will maintain sole
ownership of the Common Security and the Class A Preferred Security, and the Bank or a Qualified
Subsidiary may transfer the Common Security or the Class A Preferred Security only to the Bank or
other Qualified Subsidiaries, provided that prior to such transfer it has received an
opinion of a nationally recognized law firm


50









 







experienced in such matters to the effect that: (i) the Company will continue to be treated as
a partnership, and not as an association or publicly traded partnership taxable as a corporation,
for United States federal income tax purposes, (ii) such transfer will not cause the Company to be
required to register under the 1940 Act, (iii) such transfer will not adversely affect the limited
liability of the holders of the Class B Preferred Securities and (iv) such transfers will not
otherwise result in a Company Special Redemption Event.




          Section 16.02. Registration. The Board of Directors shall provide for the registration of
Class B Preferred Certificates, the Class A Certificate and the Common Security and of transfers of
Class B Preferred Certificates, the Class A Certificate and the Common Security in a record thereof
(the “Register”) and shall appoint a securities registrar (the “Registrar”) and transfer agent (the
“Transfer Agent”) to act on its behalf; provided, however, that without any action
on the part of the Board of Directors being necessary, Deutsche Bank Trust Company Americas, is
hereby appointed as the initial Registrar and Transfer Agent.




          Section 16.03. Events of Cessation of Security Ownership. A person shall cease to be a
Securityholder upon the lawful assignment of all of its Securities (including by any redemption or
other repurchase by the Company) or as otherwise provided herein.




          Section 16.04. Persons Deemed Securityholders. The Company may treat the Person in whose name
any Class B Preferred Certificate, Class A Preferred Certificate or Common Security shall be
registered in the Register as the sole Holder of such Class B Preferred Certificate, Class A
Preferred Certificate or Common Security and of the Securities represented thereby for purposes of
receiving Capital Payments or other distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or interest in such
Class B Preferred Certificate, Class A Preferred Certificate or Common Security or in the
Securities represented thereby on the part of any other Person, whether or not the Company shall
have actual or other notice thereof.




          Section 16.05. The Class B Preferred Certificates.





     (a) The Class B Preferred Certificates shall be issued in denominations equal to the
Class B Liquidation Preference Amount or greater integral multiples thereof. Each Class B
Preferred Certificate shall be signed, manually, by the President, any Vice-President or the
Secretary of the Company. Class B Preferred Certificates bearing the signatures of
individuals who were, at the time when such signatures shall have been affixed, authorized
to sign on behalf of the Company 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 Class B Preferred Certificates or did not hold such offices at the date of delivery of
such Class B Preferred Certificates. A transferee of a Class B Preferred Certificate shall
become a Securityholder, upon due registration of such Class B Preferred Certificate in such
transferee’s name pursuant to Section 16.06.




     (b) Unless and until the Company issues global Class B Preferred Certificates pursuant
to Section 16.08, the Company shall only issue Class B Preferred Securities in certificated,
fully registered form (the “Definitive Class B Preferred Securities”) to the Class B
Preferred Securityholders.



          Section 16.06. Transfer of Class B Preferred Certificates.




51









 









     (a) Subject to the other provisions of this Article 16, upon surrender for registration
of transfer of any Class B Preferred Certificate, the Board of Directors shall cause one or
more new Class B Preferred Certificates to be issued in the name of the designated
transferee or transferees. Every Class B Preferred Certificate surrendered for registration
of transfer shall be accompanied by a written instrument of transfer in form satisfactory to
the Board of Directors duly executed by the Class B Preferred Securityholder or his or her
attorney duly authorized in writing. Any registration of transfer shall be effected upon
the Transfer Agent being satisfied with the documents of title and identity of the person
making the request, upon the receipt by the Transfer Agent of any applicable certificate
relating to transfer restrictions as described below, and subject to such reasonable
regulations as the Company may from time to time establish. Each Class B Preferred
Certificate surrendered for registration of transfer shall be canceled by the Board of
Directors. A transferee of a Class B Preferred Certificate shall be admitted to the Company
as a Class B Preferred Securityholder and shall be entitled to the rights and subject to the
obligations of a Class B Preferred Securityholder hereunder upon receipt by such transferee
of a Class B Preferred Certificate. By acceptance of a Class B Preferred Certificate, each
transferee shall be bound by this Agreement. The transferor of a Class B Preferred
Certificate, in whole, shall cease to be a Class B Preferred Securityholder (subject to
certain exceptions) at the time that the transferee of such Class B Preferred Certificate is
admitted to the Company as a Class B Preferred Securityholder in accordance with this
Section 16.06.




     (b) Upon surrender for registration of transfer of any Class B Preferred Certificate at
the office or agency of the Company or the Registrar maintained for that purpose the Company
shall deliver or cause to be delivered to the Registrar in a form duly executed on behalf of
the Company in the manner provided for in Section 16.05(a) and the Registrar shall register
in the Register and deliver, in the name of the designated transferee or transferees, one or
more new Class B Preferred Certificates in authorized denominations of a like aggregate
Class B Liquidation Preference Amount dated the date of execution by such Registrar.




          The Company and the Registrar shall not be required to issue, register the transfer of
or exchange any Class B Preferred Security from and after the opening of business 15 days
before the Class B Redemption Date.




          No service charge shall be made for any registration of transfer or exchange of Class B
Preferred Certificates, but 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 Class B Preferred Certificates.




          The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to its duties under this Agreement. The Company, at its
own expense, shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of reasonable written
notice to the Registrar.




     (c) Any acquiror or Holder of Class B Preferred Securities (other than the Property
Trustee or DTC) or holder of a beneficial interest therein shall be deemed to have
represented and warranted by its acquisition and holding of the Class B Preferred Securities
that on each day that it holds Class B Preferred Securities either



52









 






(A) it is not itself, and is not acquiring any 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 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.



          Section 16.07. Mutilated, Destroyed, Lost or Stolen Class B Preferred Certificates. If (a)
any mutilated Class B Preferred 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 Class
B Preferred Certificate, and (b) there shall be delivered to the Registrar and the Company such
security or indemnity as may be required by them to save each of them harmless, then in the absence
of notice that such Class B Preferred Certificate shall have been acquired by a bona fide
purchaser, the Company shall sign and the Company and the Registrar shall make available for
delivery (all in the manner provided for in Section 16.05), in exchange for or in lieu of any
mutilated, destroyed, lost or stolen Class B Preferred Certificate, a new Class B Preferred
Certificate of like class, tenor and denomination. In connection with the issuance of any new
Class B Preferred Certificate under this Section 16.07, the Company or the Registrar 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 Class B Preferred Certificate issued pursuant to this
Section shall constitute conclusive evidence of a limited liability company interest in the Company
corresponding to that evidenced by the lost, stolen or destroyed Class B Preferred Certificate, as
if originally issued, whether or not the lost, stolen or destroyed Class B Preferred Certificate
shall be found at any time.




          Section 16.08. Book-entry Provisions.




          (a) General. The provisions of this Section 16.08 shall apply only in the event that
the Class B Preferred Securities are distributed to the Holders of Trust Preferred
Securities in book-entry form in connection with the involuntary or voluntary liquidation,
dissolution, winding-up or termination of the Trust. Upon the occurrence of such event, the
Company shall use its commercially reasonable efforts to cause the Class B Preferred
Securities to be issued in the form of one or more book-entry Class B Preferred Certificates
(the “Book-Entry Class B Preferred Certificates”) in fully registered form in the name of
DTC or its nominee and beneficial interests of the Holders of the Trust Preferred Securities
in the Class B Preferred Securities shall be shown on and transfers thereof shall be
effected through records maintained by DTC. In the event that the provisions of this
Section 16.08 take effect, still outstanding Definitive Class B Preferred Securities shall
be of no further force and effect. In connection with the involuntary or voluntary
liquidation,


53









 







dissolution, winding-up or termination of the Trust, DTC or its nominee shall
automatically be admitted as the Class B Preferred Securityholder. Receipt of the
Book-Entry Class B Preferred Certificates shall be deemed to constitute a request by DTC or
its nominee that the Register of the Company reflect its admission as a Class B Preferred
Securityholder. Unless and until new definitive, fully registered Class B Preferred
Certificates have been issued to the Class B Preferred Securityholders pursuant to Section
16.08(c):





          (i) The provisions of this Section 16.08(a) shall be in full force and effect;




          (ii) The Company, the Board of Directors, the Manager Trustee, and the Registrar and
Transfer Agent shall be entitled to deal with DTC or its nominee for all purposes of this
Agreement (including for purposes of the payment of Capital Payments, the Redemption Price
and liquidation distributions and the receipt of approvals, votes or consents hereunder) as
the Class B Preferred Securityholder and the sole Holder of the Class B Preferred
Certificates and shall have no obligation to any other Class B Preferred Securityholders;




          (iii) None of the Company, the Trust, the Board of Directors, the Manager Trustee, or
any agents of any of the foregoing shall have any liability or responsibility for any aspect
of the records relating to or payments made on account of beneficial ownership interests in
a Book-Entry Class B Preferred Certificate for such beneficial ownership interests or for
maintaining, supervising or reviewing any records relating to such beneficial ownership
interests; and




          (iv) Except as provided in Section 16.08(c) below, the Class B Preferred
Securityholders shall not be entitled to receive physical delivery of the Class B Preferred
Securities in definitive form and shall not be considered Holders thereof for any purpose
under this Agreement, and no Book-Entry Class B Preferred Certificate representing Class B
Preferred Securities shall be exchangeable, except for another Book-Entry Class B Preferred
Certificate of like denomination and tenor to be registered in the name of DTC or its
nominee. Accordingly, each Class B Preferred Securityholder must rely on the procedures of
DTC, or if such person is not a participant in DTC on the procedures of such a participant
through which such person owns its interest, to exercise any rights of a Class B Preferred
Securityholder under this Agreement.




     (b) Notices to DTC or its Nominee. Whenever a notice or other communication to the
Class B Preferred Securityholders is required under this Agreement, unless and until
Definitive Class B Preferred Securities shall have been issued to the Class B Preferred
Securityholder pursuant to Section 16.08(c), the Company, the Board of Directors, and the
Manager Trustee shall give all such notices and communications specified herein to be given
to the Class B Preferred Securityholders to DTC or its nominee, and shall have no
obligations to any other Class B Preferred Securityholders.




     (c) Definitive Class B Preferred Certificates. In the event that (i) the Class B
Preferred Securities are distributed to the Holders of Trust Preferred Securities in
book-entry form in connection with the involuntary or voluntary liquidation, dissolution,
winding-up or termination of the Trust and (ii) DTC or its



54









 







nominee notifies the Company that it is unwilling or unable to continue its services as
a securities depositary with respect to the Class B Preferred Securities and no successor
depositary shall have been appointed within 90 days of such notification, then Definitive
Class B Preferred Securities shall be prepared by the Company and exchangeable for the
Book-Entry Class B Preferred Certificates only. Upon surrender of the Book-Entry Class B
Preferred Certificates in whole by the Holder thereof, accompanied by registration
instructions, the Board of Directors or authorized Officer shall cause Class B Preferred
Certificates to be delivered to those Class B Preferred Securityholders who were owners of
beneficial interests in the Book-Entry Class B Preferred Certificate in accordance with the
instructions of DTC. None of the Board of Directors, authorized Officers or the Company
shall be liable for any delay in delivery of such instructions and may conclusively rely on,
and shall be protected in relying on, such instructions. Any Person receiving a Definitive
Class B Preferred Certificate in accordance with this Section 16.08 shall be admitted to the
Company as a Class B Preferred Securityholder upon receipt of such Definitive Class B
Preferred Certificate and shall be registered in the Register of the Company as a Class B
Preferred Securityholder. DTC or its nominee, as the case may be, shall cease to be a Class
B Preferred Securityholder under this Section 16.08(c) at the time of such surrender and
delivery. The Definitive Class B Preferred Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as may be required by a securities exchange,
if any, on which Class B Preferred Securities may be listed and as is reasonably acceptable
to any Officer of the Company, as evidenced by his or her execution thereof.



ARTICLE 17



MERGERS, CONSOLIDATIONS AND SALES; REINVESTMENT OF OBLIGATIONS




          Section 17.01. The Company. Subject to Section 19.01, the Company 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 body, except as described below.
The Company may, without the consent of the Class B Preferred Securityholders, consolidate,
amalgamate, merge with or into, or be replaced by a limited partnership, limited liability company
or trust organized as such under the laws of any state of the United States of America,
provided that:





     (a) such successor entity either (i) expressly assumes all of the obligations of the
Company under the Class B Preferred Securities or (ii) substitutes for the Class B Preferred
Securities other securities having substantially the same terms as the Class B Preferred
Securities (the “Successor Company Securities”) so long as the Successor Company Securities
are not junior to any equity securities of the successor entity, with respect to
participation in the profits, distributions and assets of the successor entity, except that
they may rank junior to the Class A Preferred Security or any successor Class A Preferred
Security to the same extent that the Class B Preferred Securities rank junior to the Class A
Preferred Security,




     (b) the Bank expressly acknowledges such successor entity as the Holder of the
Obligations and holds, directly or indirectly, all of the voting securities (within the
meaning of Rule 3a-5 under the 1940 Act) of such successor entity,




     (c) such consolidation, merger, amalgamation or replacement does not cause the Trust
Preferred Securities (or, in the event that the Trust is liquidated, the



55









 







Class B Preferred Securities (including any Successor Company Securities)) to be
downgraded by any nationally recognized rating organization,




     (d) such consolidation, merger, amalgamation or replacement does not adversely affect
the powers, preferences and other special rights or the tax treatment of the Holders of the
Trust Preferred Securities or Class B Preferred Securities (including any Successor Company
Securities) in any material respect,




     (e) such successor entity has a purpose substantially identical to that of the Company,




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




          (i) such successor entity will be treated as a partnership, and will not be classified
as an association or a publicly traded partnership taxable as a corporation, for United
States federal income tax purposes,




          (ii) such consolidation, merger, amalgamation or replacement would not cause the Trust
to be classified as other than a grantor trust for United States federal income tax
purposes,




          (iii) following such consolidation, merger, amalgamation or replacement, such successor
entity will not be required to register under the 1940 Act and




          (iv) such merger, consolidation, amalgamation or replacement will not adversely affect
the limited liability of the Class B Preferred Securityholders,




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




     (h) the Guarantor guarantees the obligations of such successor entity under the
Successor Company Securities at least to the extent provided by the Class B Preferred
Guarantee.



          Section 17.02. Substitute Obligations. Upon the redemption of an Obligation (at its maturity,
if any, or otherwise) under circumstances that do not involve the redemption of the Class B
Preferred Securities, the Bank will deliver and the Company will accept, in replacement thereof,
Substitute Obligations, 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.





56









 





ARTICLE 18

DISSOLUTION, LIQUIDATION AND TERMINATION




          Section 18.01. No Dissolution. The Company shall not be dissolved by the admission of
Securityholders. The death, insanity, retirement, resignation, expulsion, or dissolution of a
Securityholder, or the occurrence of any other event which terminates the continued membership of a
Securityholder in the Company, shall not in and of itself cause the Company to be dissolved and its
affairs wound up. Upon the occurrence of any such event, the business of the Company shall be
continued without dissolution. The Bankruptcy of a Securityholder shall not cause a Securityholder
to cease to be a member of the Company, and upon the occurrence of any such event the existence of
the Company shall continue without dissolution. Notwithstanding any other provision of this
Agreement, each Securityholder waives any right it might have to agree in writing to dissolve the
Company upon the Bankruptcy of a Securityholder, or the occurrence of an event that causes a
Securityholder to cease to be a member of the Company.




          Section 18.02. Events Causing Dissolution. The Company shall be dissolved and its affairs
shall be wound up upon the occurrence of any of the following events:





     (a) a decree or order by a court having jurisdiction in the premises shall have been
entered adjudging the Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of the Company under
any applicable U.S. federal or state bankruptcy or similar law, and such decree or order
shall have continued undischarged and unstayed for a period of 90 days; or a decree or order
of a court having jurisdiction in the premises for the appointment of a receiver,
liquidator, trustee, assignee, sequestrator or similar official in bankruptcy or insolvency
of the Company or of all or substantially all of its property, or for the winding up or
liquidation of its affairs, shall have been entered, and such decree or order shall have
continued undischarged and unstayed for a period of 90 days or the Company shall institute
proceedings to be adjudicated a voluntary bankrupt, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or consent seeking
reorganization, arrangement, adjustment or composition under any applicable federal or state
bankruptcy or similar law, or shall consent to the filing of any such petition, or shall
consent to the appointment of a receiver, liquidator, trustee, assignee, sequestrator or
similar official in bankruptcy or insolvency of the Company or of all or substantially all
of its property, or shall make an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due and its willingness to
be adjudged a bankrupt, or action shall be taken by the Company in furtherance of any of the
aforesaid purposes;




     (b) the entry of a decree of judicial dissolution of the Company under Section 18-802
of the LLC Act;




     (c) the entry of an order by a court initiating insolvency, bankruptcy or liquidation
proceedings in respect of the Bank under German law, or the adoption of a shareholder’s
resolution providing for the liquidation of the Bank under German law, except for any
liquidation resulting from an amalgamation, consolidation, merger or replacement;



57









 






     (d) the redemption, repurchase or exchange of all outstanding Preferred Securities;




     (e) the written consent of all Securityholders; or




     (f) the termination of the legal existence of the last remaining Securityholder of the
Company or the occurrence of any other event which terminates the continued membership of
the last remaining Securityholder of the Company in the Company unless the Company is
continued without dissolution in a manner permitted by this Agreement or the LLC Act.



          Upon the occurrence of any event that causes the last remaining Securityholder of the Company
to cease to be a Securityholder of the Company (other than upon an assignment by the Securityholder
of all of its limited liability company interest in the Company and the admission of the transferee
pursuant to this Agreement), to the fullest extent permitted by law, the personal representative of
such Securityholder is hereby authorized to, and shall, within 90 days after the occurrence of the
event that terminated the continued membership of such Securityholder in the Company, agree in
writing (i) to continue the Company and (ii) to the admission of the personal representative or its
nominee or designee, as the case may be, as a substitute member of the Company, effective as of the
occurrence of the event that terminated the continued membership of the last remaining
Securityholder of the Company.




          Notwithstanding the foregoing, the Company shall not be dissolved until all claims under the
Guarantees have been paid in full pursuant to their respective terms, to the fullest extent
permitted by law.




          Section 18.03. Notice of Dissolution. Upon the dissolution of the Company, the Board of
Directors shall promptly notify the Securityholders of such dissolution.




          Section 18.04. Liquidation. Upon dissolution of the Company, the Board of Directors or, in
the event that the dissolution is caused by an event described in Section 18.02(b) or (c) of this
Agreement and there are no Directors, a Person or Persons who may be approved by the Class B
Preferred Securityholders holding not less than 66 2/3% of the Class B Preferred Securities, as
liquidating trustees, shall immediately commence to wind up the Company’s affairs provided,
however, that a reasonable time shall be allowed for the orderly liquidation of the assets
of the Company and the satisfaction of liabilities to creditors so as to minimize the losses
attendant upon a liquidation. The proceeds of liquidation shall be distributed, as realized, in
the manner provided in Section 18-804 of the LLC Act.




          Section 18.05. Termination. The Company shall terminate when all of the assets of the Company
have been distributed in the manner provided for in this Article 18, and the LLC Certificate shall
have been canceled in the manner required by the LLC Act.




ARTICLE 19

MISCELLANEOUS




          Section 19.01. Amendments. This Agreement may be amended by a written instrument executed by
an Officer designated by the Board of Directors without the consent of any Preferred
Securityholder; provided, however, that (a) no amendment shall be made,
and any such purported amendment shall be void and ineffective, to the extent either that




58









 




such amendment (w) would result in the Company being deemed to be required to register under the 1940
Act, (x) would result in causing the Company to be treated as anything other than a partnership for
purposes of United States federal income taxation, (y) has not received any prior requisite
approval of Class B Preferred Securityholders as may be expressly provided in this Agreement or the
By-laws or (z) would result in a Company Special Redemption Event, (b) so long as any Class B
Preferred Securities are outstanding, the Company shall not, without the affirmative vote of at
least 66 2/3% of the Class B Preferred Securities voting as a single class (entitled to vote
thereon as determined in accordance with Section 11.01) (x) amend, alter, repeal or change any
provision of this Agreement (including the terms of the Class B Preferred Securities) if such
amendment, alteration, repeal or change would materially adversely affect the rights, preferences,
powers or privileges of the Class B Preferred Securities, (y) agree to modify or amend any
provision of, or waive any default in the payment of any amount under, the Obligations in any
manner that would materially affect the interests of the Class B Preferred Securityholders or (z)
effect any merger, consolidation or business combination involving the Company or sale of all or
substantially all of the assets of the Company unless under the provisions of Section 17.01 the
same may be effected without the consent of the Class B Preferred Securityholders,
provided, that in any event any such merger, consolidation, business combination or sale of
assets must also comply with Section 17.01 and (c) so long as any Class B Preferred Securities are
outstanding, the Company shall not, without the affirmative vote of each Class B Preferred
Securityholder affected thereby, amend, alter, repeal or change the right of such Class B Preferred
Securityholder to receive the Capital Payments or the applicable Redemption Price, in each case
that have become due and payable.




          Section 19.02. Amendment of LLC Certificate. In the event this Agreement shall be amended
pursuant to Section 19.01, the Board of Directors shall cause the LLC Certificate to be amended to
reflect such change if it deems such amendment of the LLC Certificate to be necessary or
appropriate.




          Section 19.03. Successors. This Agreement shall be binding as to the executors,
administrators, estates, heirs and legal successors, or nominees or representatives, of the
Securityholders.




          Section 19.04. Law; Severability. THIS AGREEMENT AND THE RIGHTS OF PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS. In particular, this Agreement shall be construed to the maximum
extent possible to comply with all of the terms and conditions of the LLC Act. If, nevertheless,
it shall be determined by a court of competent jurisdiction that any provisions or wording of this
Agreement shall be invalid or unenforceable under the LLC Act or other applicable law, such
invalidity or unenforceability shall not invalidate the entire Agreement. In that case, this
Agreement shall be construed so as to limit any term or provision so as to make it enforceable or
valid within the requirements of applicable law, and, in the event such term or provisions cannot
be so limited, this Agreement shall be construed to omit such invalid or unenforceable provisions.
If it shall be determined by a court of competent jurisdiction that any provision relating to the
distributions and allocations of the Company or to any fee payable by the Company is invalid or
unenforceable, this Agreement shall be construed or interpreted so as (a) to make it enforceable or
valid and (b) to make the distributions and allocations as closely equivalent to those set forth in this Agreement as is
permissible under applicable law.




59









 





          Section 19.05. Filings. Following the execution and delivery of this Agreement, the Board of
Directors shall cause to be promptly prepared any documents required to be filed and recorded under
the LLC Act, and the Board of Directors shall cause to be promptly filed and recorded each such
document in accordance with the LLC Act and, to the extent required by local law, to be filed and
recorded or notice thereof to be published in the appropriate place in each jurisdiction in which
the Company may hereafter establish a place of business. The Board of Directors shall also
promptly cause to be filed, recorded and published such statements of fictitious business name and
any other notices, certificates, statements or other instruments required by any provision of any
applicable law of the United States or any state or other jurisdiction which governs the conduct of
its business from time to time.




          Section 19.06. Power of Attorney. Each Preferred Securityholder does hereby constitute and
appoint each Person specifically authorized by the Board of Directors to act as its true and lawful
representative and attorney-in-fact, in its name, place and stead to make, execute, sign, deliver
and file (a) any amendment of the LLC Certificate required because of an amendment to this
Agreement or in order to effectuate any change in the ownership of the Securities of the Company,
(b) any amendments to this Agreement made in accordance with the terms hereof and (c) all such
other instruments, documents and certificates which may from time to time be required by the laws
of the United States of America, the State of Delaware or any other jurisdiction, or any political
subdivision or agency thereof, to effectuate, implement and continue the valid and subsisting
existence of the Company or to dissolve the Company or for any other purpose consistent with this
Agreement and the transactions contemplated hereby.




          The Power of Attorney granted hereby is coupled with an interest and shall (a) survive and not
be affected by the subsequent death, incapacity, disability, dissolution, termination or Bankruptcy
of the Preferred Securityholder granting the same or the transfer of all or any portion of such
Preferred Securityholder’s Preferred Securities and (b) extend to such Preferred Securityholder’s
successors, assigns and legal representatives.




          Section 19.07. Exculpation.





     (a) No Director or Officer shall have personal liability to the Company or the
Securityholders for monetary damages for breach of, in the case of a Director, such
Director’s fiduciary duty (if any) or, in the case of a Director or an Officer, for any act
or omission performed or omitted by such Director or Officer in good faith on behalf of the
Company, except for such Director’s or Officer’s gross negligence or willful misconduct.




     (b) Each Director and Officer shall be fully protected in relying in good faith upon
the records of the Company and upon such information, opinions, reports or statements
presented to the Company by any Person as to matters such Director or Officer 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 Company, 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 distributions to Securityholders might
properly be paid.



60









 





          Section 19.08. Indemnification. To the fullest extent permitted by applicable law, each
Director and Officer shall be entitled to indemnification from the Bank for any loss, damage, claim
or expense (including reasonable attorney’s fees) incurred by such Director or Officer by reason of
any act or omission performed or omitted by such Director or Officer in good faith on behalf of the
Company and in a manner reasonably believed to be within the scope of authority conferred on such
Director or Officer by this Agreement, except with respect to any act or omission determined by a
court of competent jurisdiction to have constituted gross negligence or willful misconduct of such
Director or Officer.




          Section 19.09. 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 registered
or certified mail, as follows:





          (i) If given to the Company, at the Company’s mailing address set forth below:


Deutsche Bank Contingent Capital LLC II

60 Wall Street

New York, New York 10005



Telecopy No.: (732) 460-7125

Attention: Treasury (mail stop NYC 60-4011)





          (ii) If given to the Bank or the Guarantor, at the mailing address set forth below:


Deutsche Bank Aktiengesellschaft

Taunusanlage 12

D-60325 Frankfurt am Main

Germany



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

Attention: Group Treasury



with a copy to:



Deutsche Bank Contingent Capital LLC II

60 Wall Street

New York, New York 10005





          (iii) If given to the Trust, at the Trust’s mailing address set forth below:


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:




61









 




Deutsche Bank Contingent Capital Trust II

c/o Deutsche Bank Trust Company Delaware

1011 Centre Road, Suite 200

Wilmington

Delaware 19805





          (iv) If given to the Paying Agent, Registrar or Transfer Agent at the mailing address
set forth below:


Deutsche Bank Trust Company Americas

60 Wall Street

New York, New York 10005



Telecopy No.: 732-578-4635

Attention: Trust & Securities Services





          (v) If given to the Manager Trustee, at the 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





          (vi) If given to any Securityholder, at the address set forth in the Register.



          Each such notice, request or other communication shall be effective (a) if given by
telecopier, when transmitted to the number specified in such Register and the appropriate
confirmation is received, (b) if given by mail, 72 hours after such communication is deposited in
the mails with first class postage prepaid, addressed as aforesaid, or (c) if given by any other
means, when delivered at the address specified in the Register.




          Section 19.10. Additional Documents. Each Preferred Securityholder, upon the request of the
Board of Directors, agrees to perform all further acts and execute, acknowledge and deliver any
documents that may be reasonably necessary to carry out the provisions of this Agreement.




          Section 19.11. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original of this Agreement and all of which together shall
constitute one and the same agreement.




62









 





          IN WITNESS WHEREOF, this Agreement is executed as of the date first above stated.




	 	 	 	 	 
	 	 	DEUTSCHE BANK AKTIENGESELLSCHAFT,
	 

	 	 	 	as initial Common Securityholder and
	 

	 	 	 	as initial Class A Preferred Securityholder
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	DEUTSCHE BANK CONTINGENT CAPITAL TRUST II,
	 

	 	 	 	as initial Class B Preferred Securityholder
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title: Regular Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title: Regular Trustee
	 
	 	 	 	 
	 	 	THE BANK OF NEW YORK,
	 

	 	 	 	as Manager Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:







63









 





Annex A

to the Amended and

Restated Limited Liability

Company Agreement




BY-LAWS




OF




Deutsche Bank Contingent Capital LLC II




          These By-laws have been established as the By-laws of Deutsche Bank Contingent Capital LLC II,
a Delaware limited liability company (the “Company”) pursuant to the Amended and Restated Limited
Liability Company Agreement, dated as of May 23, 2007 (as from time to time amended, modified,
restated or supplemented, the “Agreement”), pursuant to which the Company’s existence has been
continued, and, together with the Agreement and the other annexes thereto, are deemed to be the
limited liability company agreement of the Company for purposes of the LLC Act. In the event of
any inconsistency between the Agreement and these By-laws, the provisions of the Agreement shall
control.




          Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to
them in the Agreement.




ARTICLE 1

SECURITYHOLDERS




          Section 1.01. Annual Meetings. An annual meeting of the Common Securityholders shall be held
at such date, time and place either within or without the State of Delaware if and as may be
decided and designated by the Board of Directors from time to time. Any other proper business may
be transacted at the annual meeting.




          Section 1.02. Special Meetings. Special meetings of Securityholders may be called at any time
by the Chairman of the Board, if any, the President, the Board of Directors or any of the
Independent Directors, if any, to be held at such date, time and place either within or without the
State of Delaware as may be stated in the notice of the meeting. A special meeting of
Securityholders shall be called by the Secretary upon the written request, stating the purpose of
the meeting, of Securityholders who together own of record a majority of the Securities entitled to
vote at such meeting, or, if so provided in the Agreement, upon the written request of any Class B
Preferred Securityholder entitled to vote in such special meeting.




          Section 1.03. Notice of Meetings. Whenever Securityholders are required or permitted to take
any action at a meeting, a written notice of the meeting shall be given which shall state the
place, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes
for which the meeting is called. Unless otherwise provided by law, the written notice of any
meeting shall be given not less than ten nor more than sixty days before the date of the meeting to
each Securityholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be
given when deposited in the United States mail, postage prepaid, directed to the Securityholder at
such Securityholder’s address as it appears on the records of the Company.




 









 








          Section 1.04. Adjournments. Any meeting of Securityholders, annual or special, may be
adjourned from time to time, to reconvene at the same or some other place, and notice need not be
given of any such adjourned meeting if the time and place thereof are announced at the meeting at
which the adjournment is taken. At the adjourned meeting the Company may transact any business
which might have been transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each Securityholder of record entitled to vote at
the meeting.




          Section 1.05. Quorum. At each meeting of Securityholders, except where otherwise provided by
law or the Agreement or these By-laws, the Holders of at least 50% of the Securities entitled to
vote on a matter at the meeting, present in person or represented by proxy, shall constitute a
quorum. In the absence of a quorum of the Holders of Securities entitled to vote on a matter, the
Holders of a majority of the Securities present or represented may adjourn such meeting from time
to time in the manner provided by Section 1.04 of these By-laws until a quorum shall be so present
or represented. Securities other than the Common Security belonging on the record date for the
meeting to the Bank or an Affiliate of the Bank shall neither be entitled to vote nor be counted
for quorum purposes.




          Section 1.06. Organization. Meetings of Securityholders shall be presided over by the
Chairman of the Board, if any, or in the absence of the Chairman of the Board by the President, or
in the absence of the President by a Vice President, or in the absence of the foregoing persons, by
a chairman designated by the Board of Directors, or in the absence of such designation, by a
chairman chosen at the meeting. The Secretary, or in the absence of the Secretary, an Assistant
Secretary, shall act as secretary of the meeting, but in the absence of the Secretary and any
Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the
meeting.




          Section 1.07. Voting: Proxies. Unless otherwise provided in the Agreement, each
Securityholder entitled to vote at any meeting of Securityholders shall have voting power
proportionate to the outstanding amount, based on initial issue price, of the Securities held by
such Securityholder that have voting power upon the matter in question. Each Securityholder
entitled to vote at a meeting of Securityholders or to express consent or dissent to action in
writing without a meeting may authorize another person or persons to act for such Securityholder by
proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that
it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power, regardless of whether the interest with which it is coupled is an
interest in the Securities themselves or an interest in the Company generally. A Securityholder
may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by
filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later
date with the Secretary of the Company. Voting at meetings of Securityholders need not be by
written ballot unless the Holders of a majority of the outstanding Securities entitled to vote
thereon present in person or represented by proxy at such meeting shall so determine. Directors
shall be designated, removed and replaced as provided in the Agreement and Article II hereof.
Other than in the case of any matter expressly set forth in the Agreement for which a higher vote
is required, the affirmative vote of the Holders of a majority of the Securities present in person
or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act
of the Securityholders.




2









 








          Section 1.08. Fixing Date for Determination of Securityholders of Record. In order that the
Company may determine the Securityholders entitled to notice of or to vote at any meeting of
Securityholders or any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be more than sixty nor less than ten
days before the date of such meeting. If no record date is fixed by the Board of Directors, the
record date for determining Securityholders entitled to notice of or to vote at a meeting of
Securityholders shall be at the close of business on the day next preceding the day on which notice
is given, or, if notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. A determination of Securityholders of record entitled to notice of or
to vote at a meeting of Securityholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.




          In order that the Company may determine the Securityholders entitled to consent to action in
writing without a meeting, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors. If no record date has been fixed by
the Board of Directors, the record date for determining Securityholders entitled to consent to
action in writing without a meeting, when no prior action by the Board of Directors is required by
law, shall be the first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Company by delivery to (a) its registered office in the
State of Delaware, (b) its principal place of business, or (c) an Officer or agent of the Company
having custody of the book in which proceedings of meetings of Securityholders are recorded.
Delivery made to the Company’s registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board of Directors and
prior action by the Board of Directors is required by law, the record date for determining
Securityholders entitled to consent to action in writing without a meeting shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking such prior action.




          In order that the Company may determine the Securityholders entitled to receive payment of any
distribution or allotment of any rights or the Securityholders entitled to exercise any rights in
respect of any exchange of Securities, or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date shall be not more than sixty
days prior to such action. If no record date is fixed, the record date for determining
Securityholders for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.




          Section 1.09. List of Securityholders Entitled to Vote. The Secretary shall prepare and make,
at least ten days before every meeting of Securityholders, a complete list of the Securityholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each
Securityholder and the amount of Securities registered in the name of each Securityholder. Such
list shall be open to the examination of any Securityholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and




3









 




kept at the time and place of the meeting during the whole time thereof and may be inspected
by any Securityholder who is present.




          Section 1.10. Consent of Securityholders in Lieu of Meeting. Unless otherwise provided in the
Agreement or by law, any action required by law to be taken at any annual or special meeting of
Securityholders of the Company, or any action which may be taken at any annual or special meeting
of such Securityholders, may be taken without a meeting, without prior notice and without a vote,
if a consent or consents in writing, setting forth the action so taken, shall be signed by the
Holders of outstanding Securities having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all Securities entitled to vote
thereon were present and voted and shall be delivered to the Company by delivery to (a) its
registered office in the state of Delaware by hand or by certified mail or registered mail, return
receipt requested, (b) its principal place of business, or (c) an Officer or agent of the Company
having custody of the book in which proceedings of meetings of Securityholders are recorded. Every
written consent shall bear the date of signature of each Securityholder who signs the consent and
no written consent shall be effective to take the action referred to therein unless, within sixty
days of the earliest dated consent delivered in the manner required by these By-laws to the
Company, written consents signed by Holders representing a sufficient amount of Securities to take
action are delivered to the Company by delivery to (a) its registered office in the State of
Delaware by hand or by certified or registered mail, return receipt requested, (b) its principal
place of business, or (c) an Officer or agent of the Company having custody of the book in which
proceedings of meetings of Securityholders are recorded. Prompt notice of the taking of the action
without a meeting by less than unanimous written consent shall be given to those Securityholders
who have not consented in writing.




ARTICLE 2

BOARD OF DIRECTORS




          Section 2.01. Number; Powers; By-laws. The business and affairs of the Company shall be
managed by or under the direction of a Board of Directors composed initially of four Directors and
thereafter of not less than four nor more than seven Directors. The Board shall manage the
business and affairs of the Company and may exercise all powers in connection therewith, and except
for such powers as are required to be exercised by Securityholders, all in accordance with the
Agreement, these By-laws and applicable law. Except to the extent that the Board of Directors or
the Securityholders confer such authority on a Director, no Director shall have the authority to
bind the Company.




          Section 2.02. Voting Power. Each Director shall, in the consideration of any matter by the
Board of Directors, have a single vote at the time such vote is taken or made (whether at a meeting
or by written consent). Except where a greater percentage approval may be provided for herein or
in the Agreement or by law, an action shall be deemed approved by the Board of Directors only if it
has been approved by a majority of the Directors.




          Section 2.03. Quorum. At all meetings of the Board of Directors, the presence of at least a
majority of Directors shall constitute a quorum for the transaction of business. In case at any
meeting of the Board of Directors a quorum shall not be present, any Director present may adjourn
the meeting from time to time until a quorum shall be present.




4









 








          Section 2.04. Designation; Removal; Replacement. The term of office of a Director shall be
until the earliest of the following events: (i) his or her successor is designated or (ii) he or
she resigns or is removed. Any Director (other than any Independent Director) may be removed, with
or without cause, by majority vote of the Common Securityholders. In the event of the resignation,
removal or death of a Director, such Director shall be replaced by another person designated by
majority vote of the Common Securityholders. Any Director may resign at any time upon written
notice to the Board of Directors or to the President or the Secretary of the Company. Such
resignation shall take effect at the time specified therein, and unless otherwise specified therein
no acceptance of such resignation shall be necessary to make it effective.




          Section 2.05. Regular Meetings. Regular meetings of the Board of Directors may be held at
such places within or without the State of Delaware and at such times as the Board of Directors may
from time to time determine, and if so determined notice thereof need not be given.




          Section 2.06. Special Meetings. Special meetings of the Board of Directors may be held at any
time or place within or without the State of Delaware whenever called by the Chairman of the Board,
by the President or by any two Directors. Reasonable notice thereof shall be given by the person
or persons calling the meeting.




          Section 2.07. Participation in Meetings by Conference Telephone Permitted. Unless otherwise
restricted by the Agreement or these By-laws, the Board of Directors, or any committee designated
by the Board of Directors, may participate in a meeting of the Board of Directors or of such
committee, as the case may be, by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other, and participation
in a meeting pursuant to these By-laws shall constitute presence in person at such meeting.




          Section 2.08. Organization. Meetings of the Board of Directors shall be presided over by the
Chairman of the Board, or in the absence of the Chairman of the Board by the President, or in their
absence, by a chairman chosen at the meeting. The Secretary, or in the absence of the Secretary,
an Assistant Secretary, shall act as secretary of the meeting, but in the absence of the Secretary
and any Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary
of the meeting.




          Section 2.09. Action by Directors Without a Meeting. Unless otherwise restricted by the
Agreement or these By-laws, any action required or permitted to be taken at any meeting of the
Board of Directors, or of any committee thereof, may be taken without a meeting if all of the Board
of Directors or of such committee, as the case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings of the Board of Directors or committee.




ARTICLE 3

COMMITTEES




          Section 3.01. Committees. The Board of Directors may, by resolution of the Board of Directors
adopted by majority vote, designate one or more committees, each committee to consist of one or
more of the Directors of the Company. Any such committee, to the extent provided in the resolution
of the Board of Directors or in these By-laws, shall have and may exercise all the powers and
authority of the Board of Directors in the




5









 







management of the business and affairs of the Company, and may authorize the seal of the
Company to be affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the LLC Certificate, adopting an agreement of merger,
consolidation or conversion, recommending to the Securityholders the sale, lease or exchange of all
or substantially all of the Company’s property and assets, recommending to the Securityholders a
dissolution of the Company amending these By-laws; and, unless the resolution, these By-laws or the
Agreement expressly so provides, no such committee shall have the power or authority to authorize
the issuance of Securities, to adopt a certificate of ownership and merger, consolidation or
conversion or to remove or indemnify Officers or Directors.




          Section 3.02. Committee Rules. Unless the Board of Directors otherwise provides, each
committee designated by the Board of Directors may adopt, amend and repeal rules for the conduct of
its business. In the absence of a provision by the Board of Directors or a provision in the rules
of such committee to the contrary, a majority of the members of such committee shall constitute a
quorum for the transaction of business, the vote of a majority of the members present at a meeting
at the time of such vote if a quorum is then present shall be the act of such committee, and in
other respects each committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II of these By-laws.




ARTICLE 4

OFFICERS




          Section 4.01. Officers; Election. As soon as practicable after the annual meeting of Common
Securityholders in each year, the Board of Directors shall elect a President and a Secretary, and
may also elect one or more Vice Presidents, one or more Assistant Vice Presidents, one or more
Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other Officers as
the Board of Directors may deem desirable or appropriate and may give any of them such further
designations or alternate titles as it considers desirable. Any number of offices may be held by
the same person unless the Agreement or these By-laws otherwise provide.




          Section 4.02. Term of Office; Resignation; Removal; Vacancies. Unless otherwise provided in
the resolution of the Board of Directors electing any Officer, each Officer shall hold office until
his or her successor is elected and qualified or until his or her earlier resignation or removal.
Any Officer may resign at any time upon written notice to the Board of Directors or to the
President or the Secretary of the Company. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein no acceptance of such resignation shall
be necessary to make it effective. The Board of Directors may remove any Officer with or without
cause at any time. Any such removal shall be without prejudice to the contractual rights of such
Officer, if any, with the Company, but the election of an Officer shall not of itself create
contractual rights. Any vacancy occurring in any office of the Company by death, resignation,
removal or otherwise may be filled by the Board of Directors at any regular or special meeting.




          Section 4.03. Powers and Duties. The Officers of the Company shall have such powers and
duties in the management of the Company as shall be stated in these By-laws or in a resolution of
the Board of Directors which is not inconsistent with these By-laws and, to the extent not so
stated, as generally pertain to comparable offices in a corporation organized under the General
Corporation Law of the State of Delaware, subject to the control




6









 




of the Board of Directors. The Secretary shall have the duty to record the proceedings of the
meetings of the Securityholders, the Board of Directors and any committees in a book to be kept for
that purpose. The Board of Directors may require any Officer, agent or employee to give security
for the faithful performance of his or her duties.




ARTICLE 5

SECURITIES




          Section 5.01. Certificates for Securities. The Preferred Securities in the Company shall be
registered in the form of Definitive Class B Preferred Securities except that Class B Preferred
Securities distributed to Holders of Global Trust Preferred Securities (as defined in the Trust
Agreement) in connection with the liquidation, dissolution, winding up or termination of the Trust,
may be in form of Book-Entry Class B Securities pursuant to Article 16 of the LLC Agreement. If
such certificate is manually countersigned by a transfer agent or by a registrar, any other
signature on the certificate may be a facsimile. In case any Officer who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be such Officer before
such certificate is issued, such certificate may be issued by the Company with the same effect as
if such person were such Officer at the date of issue.




          Section 5.02. Lost, Stolen or Destroyed Certificates: Issuance of New Certificates. The
Company may issue a new certificate representing Class B Preferred Securities in the place of any
certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the
Company may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal
representative, to give the Company a bond sufficient to indemnify it against any claim that may be
made against it on account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate or uncertificated Preferred Securities.




ARTICLE 6

MISCELLANEOUS




          Section 6.01. Seal. The Company may have a company seal which shall have the name of the
Company inscribed thereon and shall be in such form as may be approved from time to time by the
Board of Directors. The company seal, if any, may be used by causing it or a facsimile thereof to
be impressed or affixed or in any other manner reproduced.




          Section 6.02. Waiver of Notice of Meetings of Securityholders, Directors and Committees.
Whenever notice is required to be given by law or under any provision of the Agreement or these
By-laws, a written waiver thereof, signed by the person entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Securityholders, Directors
or a committee of Directors need be specified in any written waiver of notice unless so required by
the Agreement or these By-laws.




          Section 6.03. Indemnification of Directors, Officers and Employees. The Bank, as the Holder
of the Common Security, shall indemnify to the full extent permitted




7









 




under the LLC Act any person made or threatened to be made a party to any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that
such person or such person’s testator or intestate is or was a Director, Officer or employee of the
Company or serves or served at the request of the Company any other enterprise as a director,
officer or employee except for such Director’s or Officer’s gross negligence or willful misconduct.
Expenses, including attorneys’ fees, incurred by any such person in defending any such action,
suit or proceeding shall be paid or reimbursed by the Bank promptly upon receipt by it of an
undertaking of such person to repay such expenses if it shall ultimately be determined that such
person is not entitled to be indemnified by the Bank. The rights provided to any person by these
By-laws shall be enforceable against the Bank by such person who shall be presumed to have relied
upon it in serving or continuing to serve as a Director, Officer or employee as provided above. No
amendment of these By-laws shall impair the rights of any person arising at any time with respect
to events occurring prior to such amendment. For purposes of these By-laws, the term “Company”
shall include any predecessor of the Company and any constituent company (including any constituent
of a constituent) absorbed by the Company in a consolidation or merger; the term “other enterprise”
shall include any limited liability company, corporation, partnership, joint venture, trust or
employee benefit plan. The rights conferred on any Person by this Section 6.03 shall not be
exclusive of any other rights which such Person may have or hereafter acquire under any statue,
provision of these By-laws, the Agreement, any other agreement, vote of Securityholders or
disinterested Directors or otherwise. The Bank’s obligation, if any, to indemnify any Person who
was or is serving at its request as a director, officer, employee or agent of any other enterprise
shall be reduced by any amount such Person may collect as indemnification from such other
enterprise. Any repeal or modification of the foregoing provisions of this Section 6.03 shall not
adversely affect any right of protection hereunder of any Person in respect of any act or omission
occurring prior to the time of such repeal or modification.




          Section 6.04. Interested Directors; Quorum. No contract or transaction between the Company
and one or more of its Directors or Officers, or between the Company and any other limited
liability company, corporation, partnership, association or other organization in which one or more
of its Directors or Officers are Directors or officers, or have a financial interest (except for
the Bank), shall be void or voidable solely for this reason, or solely because the Director or
Officer is present at or participates in the meeting of the Board of Directors or committee thereof
which authorizes the contract or transaction, or solely because his or her or their votes are
counted for such purpose, if: (1) the material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested Directors, even though the
disinterested Directors be less than a quorum; or (2) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or are known to the
Securityholders entitled to vote thereon, and the contract or transaction is specifically approved
in good faith by vote of the Securityholders; or (3) the contract or transaction is fair as to the
Company as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the Securityholders. Common or interested Directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.




8









 








          Section 6.05. Form of Records. Any records maintained by the Company in the regular course of
its business, including its Securities ledger, books of account and minute books, may be kept on,
or be in the form of, punch cards, magnetic tape or disk, photographs, microphotographs or any
other information storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The Company shall so convert any records so kept upon the
request of any person entitled to inspect the same.




          Section 6.06. Amendment of By-laws. These By-laws may be amended or repealed, and new By-laws
adopted, by the Board of Directors in accordance with the Agreement.





9









 








Annex B

to the Amended and

Restated Limited Liability

Company Agreement



List of Initial Directors



John Cipriani

Richard W. Ferguson

Jean M. Devlin

Joseph J. Rice



List of Initial Officers



Richard W. Ferguson, President

John Cipriani, Vice President and Treasurer

Jean M. Devlin, Vice President

Helmut Mannhardt, Vice President

Joseph J. Rice, Vice President

Sonja K. Olsen, Secretary

Sandra L. West, Assistant Secretary




 









 





Annex C

to the Amended and

Restated Limited Liability

Company Agreement




[FORM OF CERTIFICATE EVIDENCING THE CLASS A PREFERRED SECURITY]



THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, 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.



THIS CLASS A PREFERRED SECURITY IS NOT TRANSFERABLE EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE LIMITED LIABILITY COMPANY AGREEMENT.




			
	 	 	 
	Certificate Number R-A-1
	 	Aggregate Liquidation
	 
	 	Preference Amount
	 
	 	U.S.$25






May 23, 2007




CERTIFICATE FOR CLASS A PREFERRED SECURITY OF DEUTSCHE BANK CONTINGENT CAPITAL LLC II




Class A Preferred Security

(Liquidation Preference Amount $25 per Class A Preferred Security)




          Deutsche Bank Contingent Capital LLC II, a limited liability company formed under the laws of
the State of Delaware (the “Company”), hereby certifies that Deutsche Bank Aktiengesellschaft,
Frankfurt am Main, is the registered owner of U.S.$25 aggregate liquidation preference amount of
Preferred Securities of the Company representing preferred limited liability company interests in
the Company, which are designated the Class A Preferred Security, liquidation preference amount
U.S.$25 per Class A Preferred Security (the “Class A Preferred Security”). The Class A Preferred
Security is fully paid and is a nonassessable preferred limited liability company interest in the
Company, as to which the Securityholder of the Company who holds the Class A Preferred Security
(the “Securityholder”), in its capacity as such, has no liability in excess of its obligation to
make payments provided for in the LLC Agreement (as defined below) and its share as provided in the
LLC Agreement of the Company’s assets and undistributed profits (subject to its obligation to repay
any funds wrongfully distributed to it), and is transferable on the books and records of the
Company, in person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer and otherwise in accordance with the provisions of the
Amended and Restated Limited Liability Company Agreement of the
Company dated as of May 23, 2007, as
the same may be amended from time to time in accordance with its terms (the “LLC Agreement”). The
powers, preferences and special rights and limitations of the Class A Preferred Security are set
forth in, and this certificate and the Class A Preferred Security represented hereby are issued and
shall in all respects be




 









 




subject to the terms and provisions of, the LLC Agreement, authorizing the issuance of the
Class A Preferred Security and determining the powers, preferences and other special rights and
limitations, regarding capital payments, voting rights, return of capital and otherwise, and other
matters relating to the Class A Preferred Security. Capitalized terms used herein but not defined
herein shall have the meaning given them in the LLC Agreement. The Company shall furnish a copy of
the LLC Agreement to the Securityholder without charge upon written request to the Company at its
principal place of business.




          The Securityholder, by accepting this certificate, is deemed to have agreed to be bound by the
provisions of the LLC Agreement. Upon receipt of this certificate, the Securityholder is admitted
to the Company as a Class A Preferred Securityholder, is bound by the LLC Agreement and is entitled
to the benefits thereunder.




 









 








          IN WITNESS WHEREOF, this certificate has been executed on behalf of the Company by a duly
authorized officer as of the day and year first written above.




	 	 	 	 	 	 	 
	 	 	DEUTSCHE BANK CONTINGENT CAPITAL LLC II	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






 









 





Annex D

to the Amended and

Restated Limited Liability

Company Agreement




[FORM OF CERTIFICATE EVIDENCING CLASS B PREFERRED SECURITIES]




          [IF THE CLASS B PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT: This Class B
Preferred Security is a global certificate registered in the name of The Depository Trust Company,
a New York corporation (the “Depositary“) (55 Water Street, New York, New York), or a nominee of
the Depositary. This Class B Preferred Security is exchangeable for Class B Preferred Securities
registered in the name of a person other than the Depositary or its nominee only in the limited
circumstances described in the LLC Agreement and no transfer of this Class B Preferred Security
(other than a transfer of this Class B Preferred Security as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.



Unless this Class B Preferred Security is presented by an authorized representative of the
Depositary to the Company or its agent for registration of transfer, exchange or payment, and any
Class B Preferred Security issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of the Depositary and any payment hereon is made to Cede
& Co. or 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.]



THE HOLDER HEREOF, BY ACQUIRING AND HOLDING THIS CERTIFICATE, WILL BE DEEMED TO HAVE REPRESENTED
AND WARRANTED THAT ON EACH DAY THAT IT HOLDS THE CLASS B PREFERRED SECURITIES EITHER (A) IT IS NOT
ITSELF, AND IS NOT ACQUIRING ANY 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”), OR 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 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.




			
	 	 	 
	Certificate Number R-B-1
	 	Aggregate Liquidation
	 
	 	Preference Amount
	 
	 	U.S.$800,000,025






May 23, 2007




CERTIFICATE FOR CLASS B PREFERRED SECURITIES OF

DEUTSCHE BANK CONTINGENT CAPITAL LLC II




Class B Preferred Securities

(Liquidation Preference Amount U.S.$25

per Class B Preferred Security)




          Deutsche Bank Contingent Capital LLC II, a limited liability company formed under the laws of
the State of Delaware (the “Company”), hereby certifies that The Bank of New York (the
“Securityholder”), as Property Trustee of Deutsche
Bank Contingent Capital Trust II, for the benefit
of the Holders or beneficial owners of the Trust Preferred Securities and the Holders of the Trust
Common Security, is the registered owner of U.S.$800,000,025 aggregate liquidation preference
amount of the Preferred Securities of the Company representing preferred limited liability company
interests in the Company, which are designated the Class B Preferred Securities, Liquidation
Preference Amount U.S.$25 per Class B Preferred Security (the “Class B Preferred Securities”). The
Class B Preferred Securities are fully paid and are nonassessable preferred limited liability
company interests in the Company, as to which the Securityholders of the Company who hold the Class
B Preferred Securities (the “Securityholders”), in their capacities as such, have no liability in
excess of their obligations to make payments provided for in the LLC Agreement (as defined below)
and their share as provided in the LLC Agreement of the Company’s assets and undistributed profits
(subject to their obligation to repay any funds wrongfully distributed to them), and are
transferable on the books and records of the Company, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for transfer and otherwise in
accordance with the provisions of the Amended and Restated Limited Liability Company Agreement of
the Company dated as of May 23, 2007, as the same may be amended from time to time in accordance
with its terms (the “LLC Agreement”). The powers, preferences and special rights and limitations
of the Class B Preferred Securities are set forth in, and this certificate and the Class B
Preferred Securities represented hereby are issued and shall in all respects be subject to the
terms and provisions of the LLC Agreement, authorizing the issuance of the Class B Preferred
Securities and determining the powers, preferences and other special rights and limitations,
regarding Capital Payments, voting rights, return of capital and otherwise, and other matters
relating to the Class B Preferred Securities. Capitalized terms used herein but not defined herein
shall have the meaning given them in the LLC Agreement. The Securityholder is entitled to the
benefits of the


 









 







Class B Preferred Securities Subordinated Guarantee Agreement dated as of May 23, 2007,
between Deutsche Bank Aktiengesellschaft, Frankfurt am Main, (the “Guarantor”) and the The Bank of
New York, as Class B Preferred Guarantee Trustee (the “Class B Preferred Guarantee”), to the extent
provided therein. The Company shall furnish a copy of the LLC Agreement and the Class B Preferred
Guarantee to the Securityholder without charge upon written request to the Company at its principal
place of business.




          By accepting this certificate, the Securityholder hereby acknowledges and agrees to the
subordination provisions in, and other terms of, the Class B Preferred Guarantee.




          The Securityholder, by accepting this certificate, is deemed to have agreed to be bound by the
provisions of the LLC Agreement. Upon receipt of this certificate, the Securityholder is admitted
to the Company as a Class B Preferred Securityholder, is bound by the LLC Agreement and is entitled
to the benefits thereunder.




 









 





          IN WITNESS WHEREOF, this certificate has been executed on behalf of the Company by a duly
authorized officer as of the day and year first written above.




	 	 	 	 	 
	 	DEUTSCHE BANK CONTINGENT CAPITAL LLC II

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



(see reverse for additional terms)




 









 








[FORM OF REVERSE OF SECURITY]




          Capital Payments on the Class B Preferred Securities shall be payable quarterly in arrears on
February 23, May 23, August 23 and November 23 of each year, commencing on August 23, 2007.
Capital Payments on the Class B Preferred Securities payable on each Class B Payment Date shall be
calculated as provided below and shall accrue from and including the immediately preceding Class B
Payment Date (or May 23, 2007 with respect to the Capital Payment payable August 23, 2007) to but
excluding the relevant Class B Payment Date.




          For each Class B Payment Period, Capital Payments shall accrue on the Class B Liquidation
Preference Amount of each Class B Preferred Security at a fixed rate of 6.55% per annum, calculated
on the basis of a 360-day year of twelve 30-day months.




          If any Class B Payment Date or Class B 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.




          If the Trust or the Property Trustee is the Holder of the Class B Preferred Securities, all
distributions of cash shall be made by wire transfer of same day funds to such Holder by 9:00 a.m.,
New York City time, on the applicable Class B Payment Date. If the Trust Preferred Securities (or,
if the Trust is liquidated, the Class B Preferred Securities) are in book-entry only form, Capital
Payments will be payable to the Holders of record of Class B Preferred Securities as they appear on
the Register of the Company on the relevant record dates, which will be at the end of the Business
Day immediately preceding the date on which the relevant Capital Payment will be paid. If the
Trust Preferred Securities (or, if the Trust is liquidated, the Class B Preferred Securities) are
not in book-entry only form, the relevant record dates shall be the end of the 15th
Business Days prior to the relevant Class B Payment Date.



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



          The Company will also have a right, upon the occurrence of a Company Special Redemption Event
to redeem the Class B Preferred Securities at any time, in whole but not in part, and upon at least
30 calendar days’ prior notice, subject to the Company having obtained any required regulatory
approvals. Any such redemption shall be at the Redemption Price.



          On or after the Initial Redemption Date, the Class B Preferred Securities shall be redeemable
at the option of the Company, in whole but not in part, on any Class B Payment Date, at the
Redemption Price.




 









 





          No redemption of the Class B Preferred Securities shall take place for any reason unless on
the Class B Redemption Date (i) the Company has an amount of cash funds (by reason of payments on
the Obligations or the Class B Preferred Guarantee) at least equal to the Redemption Price, plus
Additional Amounts, if any, (ii) the Company has an amount of Operating Profits for the current
Class B Payment Period at least equal to the Capital Payments on the Class B Preferred Securities accrued
and unpaid as of the Class B Redemption Date plus, if the Tier 1 Qualification Date has not
occurred, all outstanding Arrears of Payments, if any, plus Additional Amounts, if any, (iii) the
Bank has an amount of Distributable Profits for the preceding fiscal year of the Bank for which
audited unconsolidated financial statements are available at least equal to the Capital Payments on
the Class B Preferred Securities accrued and unpaid as of the Class B Redemption Date, plus, if the
Tier 1 Qualification Date has not occurred, all outstanding Arrears of Payments, if any, plus
Additional Amounts, if any, plus (x) if the Tier 1 Qualification Date has not occurred, the
aggregate amount of Capital Payments (including Arrears of Payments, if any) on the Class B
Preferred Securities theretofore paid, and capital payments payable on Parity Capital Securities,
or (y) if the Tier 1 Qualification Date has occurred, the aggregate amount of Capital Payments on
the Class B Preferred Securities theretofore paid, and capital payments or dividends payable on
Preferred Tier 1 Securities, if any, pro rata, on the basis of Distributable Profits for such
preceding fiscal year, and (iv) no order of the BaFin (or any other relevant regulatory authority)
is in effect prohibiting the Bank from making any distribution of profits (including to the holders
of Preferred Tier 1 Securities, if any such Preferred Tier 1 Securities are then outstanding).



          No redemption of Class B Preferred Securities, whether on a Class B Payment Date, on or after
the Initial Redemption Date or upon the occurrence of a Company Special Redemption Event, shall
require the vote or consent of any of the Class B Preferred Securityholders.




          In the event that payment of any redemption price, in respect of any Class B Preferred Securities,
is improperly withheld or refused and not paid, Capital Payments on such Class B Preferred
Securities shall continue to accrue from the Class B Redemption Date to the date of actual payment
of such redemption price. Any redemption of the Class B Preferred Securities, whether on a Class B
Payment Date on or after the Initial Redemption Date or upon the occurrence of a Company Special
Redemption Event, will not require the vote or consent of any of the holders of the Class B
Preferred Securities.




 









 








ASSIGNMENT




          FOR VALUE RECEIVED, the undersigned assigns and transfers this Class B Preferred 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 Class B Preferred Security Certificate on the books of the Company. 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

Class B Preferred Security Certificate)





i