Contract
Exhibit 4.1
TRUST
AGREEMENT, dated as of May 10, 2007, among DEUTSCHE BANK CONTINGENT CAPITAL LLC II,
a Delaware limited liability company (the “Sponsor”), and THE BANK OF NEW YORK, a New York banking
corporation (the “Property Trustee”), and DEUTSCHE BANK TRUST COMPANY DELAWARE, a Delaware banking
corporation (the “Delaware Trustee”), as trustees (together with such other trustees as the Sponsor
may, from time to time, appoint hereunder, the “Trustees”). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as “Deutsche Bank Contingent Capital Trust II,” in
which name the Trustees, or the Sponsor to the extent provided herein, may conduct the business of
the Trust, make and execute contracts, and xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the Property Trustee the
sum of $10. The Property Trustee hereby acknowledges receipt of such amount in trust from the
Sponsor, which amount shall constitute the initial trust estate. The Sponsor shall be the initial
beneficial owner of the Trust. It is the intention of the parties hereto that the Trust created
hereby constitute a statutory trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
§ 3801 et seq. (the “Statutory Trust Act”), and that this document constitute the governing
instrument of the Trust. The Trustees are hereby authorized, empowered and directed to execute and
file a certificate of trust in the office of the Secretary of State of the State of Delaware in the
form attached hereto. The Trust is hereby established by the Sponsor and the Trustees for the
purpose of (i) issuing trust preferred securities (“Preferred Securities”) representing undivided
beneficial interests in the assets of the Trust in exchange for cash and investing the proceeds
thereof in Class B Preferred Securities of the Sponsor, (ii) issuing and selling common securities
(“Common Securities” and, together with the Preferred Securities, “Trust Securities”) representing
undivided beneficial interests in the assets of the Trust to the Sponsor in exchange for cash and
investing the proceeds thereof in additional Class B Preferred Securities of the Sponsor and (iii)
engaging in such other activities as are necessary, convenient or incidental thereto.
3. Concurrent with the first issuance of any Trust Securities by the Trust, the Sponsor and
the Trustees intend to enter into an amended and restated Trust Agreement, satisfactory to each
such party, to provide for the contemplated operation of the Trust created hereby and the issuance
of the Preferred Securities and the Common Securities referred to therein. Prior to the execution
and delivery of such amended and restated Trust Agreement, the Trustees shall not have any duty or
obligation hereunder or with respect to the trust estate other than (i) the execution of the
Certificate of Trust and (ii) the receipt and holding in trust of $10 as the initial trust estate.
The Sponsor, as agent for the Trust pursuant to Section 3806(b)(7) of the Statutory Trust Act,
shall take any and all action on behalf of the Trust prior to the execution and delivery of the
amended and restated Trust Agreement as may be necessary to obtain any licenses, consents or
approvals as required by applicable law or otherwise, and to take the actions contemplated by
paragraph 5 hereof.
4. The Delaware Trustee is appointed to serve as the trustee of the Trust in the State of
Delaware for the sole purpose of satisfying the requirement of Section 3807(a) of the Statutory
Trust Act that the Trust have at least one trustee with a principal place of business in
the State of Delaware. It is understood and agreed by the parties hereto that the Delaware Trustee
shall have none of the duties or liabilities of the other Trustees. The duties of the Delaware
Trustee shall be limited to (a) accepting legal process served on the Trust in the State of
Delaware and (b) the execution of any certificates required to be filed with the Delaware Secretary
of State which the Delaware Trustee is required to execute under Section 3811 of the Statutory
Trust Act. To the extent that, at law or in equity, the Delaware Trustee has duties (including
fiduciary duties) and liabilities relating thereto to the Trust, the beneficial owners thereof or
any other person, it is hereby understood and agreed by the other parties hereto that, to the
fullest extent permitted by applicable law, such duties and liabilities are replaced by the duties
and liabilities of the Delaware Trustee expressly set forth in this Agreement.
5. The Sponsor and the Trustees hereby authorize and direct the Sponsor, as the sponsor and
agent of the Trust, (i) to prepare an offering circular (the “Offering Circular”) in preliminary
and final form, in relation to the offering and sale of the Preferred Securities; (ii) to negotiate
the terms of, and execute on behalf of the Trust, a purchase agreement among the Trust, the Sponsor
and any underwriter, dealer or agent relating to the offer and sale of the Preferred Securities,
satisfactory to each such party; (iii) to prepare or cause the preparation of and to file with the
New York Stock Exchange, Inc. or any other national stock exchange or The Nasdaq National Market or
any foreign stock exchange (each, an “Exchange”) and execute on behalf of the Trust one or more
listing applications and all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred Securities to be listed on
any of the Exchanges; (iv) to prepare or cause the preparation of and to file and execute on behalf
of the Trust such applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be necessary or desirable
to register the Preferred Securities under the securities or blue sky laws of such jurisdictions as
the Sponsor, on behalf of the Trust, may deem necessary or desirable; and (v) to execute and
deliver on behalf of the Trust any and all letters or documents to, or instruments for filing with,
a depository relating to the Preferred Securities of the Trust. In the event that any filing
referred to in clauses (iii) or (iv) above is required by the rules and regulations of the New York
Stock Exchange Inc., or The Nasdaq National Market or state securities or blue sky laws to be
executed on behalf of the Trust by the Trustees, the Trustees are hereby authorized and directed to
join in any such filing and to execute on behalf of the Trust any and all of the foregoing, it
being understood that the Trustees shall not be required to join in any such filing or execute on
behalf of the Trust any such document unless required by the rules and regulations of the New York
Stock Exchange Inc., or The Nasdaq National Market or state securities or blue sky laws.
6. This Trust Agreement may be executed in one or more counterparts.
7. The number of Trustees initially shall be two (2) and thereafter the number of Trustees
shall be such number as shall be fixed from time to time by a written instrument signed by the
Sponsor which may increase or decrease the number of Trustees; provided, however, that the number
of Trustees shall in no event be less than one (1); and provided, further, however, that to the
extent required by the Statutory Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware and meets any other
requirements imposed by applicable law. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any Trustee at any time. Any Trustee may resign upon thirty (30)
days prior notice to the Sponsor provided that its office shall only terminate if there is at least
one (1) remaining Trustee satisfying the requirements of this Trust Agreement or if a successor
trustee has been appointed.
8. The recitals contained in this Trust Agreement shall be taken as statements of the Sponsor,
and the Trustees do not assume any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this Trust Agreement.
9. (a) The Trustees (the “Fiduciary Indemnified Persons”) shall not be liable, responsible or
accountable in damages or otherwise to the Trust, the Sponsor, the Trustees or any holder of the
Trust Securities (the Trust, the Sponsor and any holder of the Trust Securities being a “Covered
Person”) for any loss, damage or claim incurred by reason of any act or omission performed or
omitted by the Fiduciary Indemnified Persons in good faith on behalf of the Trust and in a manner
the Fiduciary Indemnified Persons reasonably believed to be within the scope of authority conferred
on the Fiduciary Indemnified Persons by this Trust Agreement or by law, except that the Fiduciary
Indemnified Persons shall be liable for any such loss, damage or claim incurred by reason of the
Fiduciary Indemnified Person’s gross negligence or bad faith with respect to such acts or
omissions.
(b) The Fiduciary Indemnified Persons shall be fully protected in relying in good faith upon
the records of the Trust and upon such information, opinions, reports or statements presented to
the Trust by any person as to matters the Fiduciary Indemnified Persons reasonably believes are
within such other person’s professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits, losses, or any other
facts pertinent to the existence and amount of assets from which distributions to holders of Trust
Securities might properly be paid.
10. The Sponsor agrees, to the fullest extent permitted by applicable law,
(a) to indemnify and hold harmless each Fiduciary Indemnified Person, or any of its officers,
directors, shareholders, employees, representatives or agents, from and against any loss, damage,
liability, tax, penalty, expense or claim of any kind or nature whatsoever incurred by the
Fiduciary Indemnified Persons by reason of the creation, operation or termination of the Trust in a
manner the Fiduciary Indemnified Persons reasonably believed to be within the scope of authority
conferred on the Fiduciary Indemnified Persons by this Trust Agreement, except that no Fiduciary
Indemnified Persons shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by the Fiduciary Indemnified Persons by reason of gross negligence or willful misconduct
with respect to such acts or omissions; and
(b) to advance expenses (including reasonable legal fees and expenses) incurred by a Fiduciary
Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, prior to the final disposition of such claim, demand, action,
suit or proceeding, upon receipt by the Trust of an undertaking by or on behalf of such Fiduciary
Indemnified Persons to repay such amount if it shall be determined that such Fiduciary Indemnified
Person is not entitled to be indemnified as authorized in the preceding subsection.
11. The provisions of Section 9 and Section 10 shall survive the termination of this Trust
Agreement or the earlier resignation or removal of the Fiduciary Indemnified Persons.
12. The Trust may terminate without issuing any Trust Securities at the election of the
Sponsor.
13. This Trust Agreement and the rights of the parties hereunder shall be governed by and
interpreted in accordance with the laws of the State of Delaware and all rights and remedies shall
be governed by such laws without regard to the principles of conflict of laws.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly executed as
of the day and year first above written.
| DEUTSCHE BANK CONTINGENT CAPITAL LLC II, as Sponsor BY: Deutsche Bank Aktiengesellschaft, a Federal Republic of Germany corporation, as Member |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxxx Xxxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxxx | |||
| Title: | Vice President | |||
| THE BANK OF NEW YORK, as Property Trustee |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Assistant Vice President | |||
| DEUTSCHE BANK TRUST COMPANY DELAWARE, as Delaware Trustee |
||||
| By: | /s/ Xxxxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxxxx X. Xxxxx | |||
| Title: | Assistant Vice President | |||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxx Xxxxx | |||
| Title: | Associate | |||
