Conditions of the Obligations of the Agents. Your obligation to solicit offers to purchase Notes as agent of the Bank in connection with any offering of Notes will be subject to the accuracy of the representations and warranties on the part of the Bank herein, to the accuracy of the statements of the Bank’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Bank of all covenants and agreements herein contained on its part to be performed and observed (at the time of such solicitation) and to the following additional conditions precedent when and as specified below: (a) Prior to such solicitation, as the case may be: (i) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Time of Sale Information and that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Notes on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented; (ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the Frankfurt Stock Exchange; (b) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities or on commercial banking activities in the Federal Republic of Germany declared by German authorities; and (c) any outbreak or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be such as to make it, in your judgment, impracticable or inadvisable to proceed with the purchase of the Notes by you on the terms and in the manner contemplated in the Prospectus or Time of Sale Information; (iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 433 under the Securities Act); and (iv) since the date on which the Bank has filed with the Commission the Bank’s most recent Annual Report on Form 20-F, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the long-term senior unsecured debt rating accorded the Bank by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; (A) except, in each case described in paragraph (i), (ii) or (iv) above, as disclosed to you in writing by the Bank prior to such solicitation or (B) the relevant event shall have occurred and been known to you prior to such solicitation. (b) On the Commencement Date, you shall have received: (i) The opinion, dated as of such date, of the Bank’s Legal Department, or of other counsel satisfactory to you and who may be an official of the Bank, substantially to the effect that: (A) the Bank is duly organized and validly existing as a stock corporation (Aktiengesellschaft) under the laws of the Federal Republic of Germany and has full power and authority to engage in banking business in the Federal Republic of Germany; the Bank is qualified, as far as the laws of the Federal Republic of Germany are concerned, to conduct the business in which it is engaged in each jurisdiction where it conducts business; (B) the Bank has corporate power and capacity to execute and deliver the Indenture, the Notes and this Agreement and to perform its obligations thereunder and hereunder; (C) the execution and delivery of the Indenture, the Notes and this Agreement have been duly authorized by all necessary corporate action of the Bank; (D) each of the Indenture and this Agreement has been duly executed and delivered on behalf of the Bank; (E) the forms of the Notes have been duly authorized and established by the Bank; (F) the terms of a particular issuance of Notes will be, when established by an Issuer Order executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank, duly authorized by the Bank; (G) when Notes of a particular issuance have been executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank they will have been validly executed on behalf of the Bank, and when such executed Notes have been authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and duly paid for by the purchasers thereof, they will be valid and binding obligations of the Bank to be performed through the office through which they have been incurred; (H) none of the execution and delivery of the Indenture, the Notes and this Agreement, the issuance of the Notes pursuant to the Indenture, the offering and sale of the Notes in accordance with this Agreement and the performance by the Bank (acting through its head office or a branch office) of its obligations under the Indenture, the Notes or this Agreement (x) requires the consent, approval, authorization, registration or qualification of or with any governmental authority in the Federal Republic of Germany or (y) conflicts with or results in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to us after due inquiry, to which the Bank is a party or by which the Bank or its properties are bound, or the Articles of Association (Satzung) of the Bank or any statute in the Federal Republic of Germany or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to us after due inquiry and applicable to the Bank; (I) to the best of such counsel’s knowledge, there are no legal or governmental actions, suits or proceedings before or by any court of governmental agency or body in the Federal Republic of Germany now pending or threatened against or affecting the Bank or its property other than as set forth in the Registration Statement and Prospectus, as amended and supplemented to date, and other than litigation that in each case is reasonably expected not to have a material adverse effect on the financial condition of the Bank and its consolidated subsidiaries, taken as a whole, or the ability of the Bank to perform its obligations under the Indenture, the Notes and this Agreement (through its head office or a branch office); (J) it is not necessary under the law of the Federal Republic of Germany in order to enable either the Trustee or, to the extent permitted by the provisions of the Indenture, the holder of a Note to enforce rights under the Indenture that it should, as a result solely of its holding of the Note, be licensed, qualified or otherwise entitled to carry on business in the Federal Republic of Germany; (K) the obligations of the Bank under the Indenture, the Notes and this Agreement constitute direct, unconditional, unsecured and unsubordinated obligations of the Bank to be performed through the office through which they have been incurred and rank at least pari passu with all other outstanding unsecured and unsubordinated obligations of the Bank for borrowed money and to general depositors, subject, however, to the priority conferred by the operation of German law upon some liabilities, such as costs of the insolvency proceeding and liabilities incurred as a result of the acts of the administrator for the insolvent estate; (L) any judgment against the Bank enforcing the Notes, the Indenture and this Agreement given by the State or Federal courts of the State of New York would be recognized and enforced in the Federal Republic of Germany, provided that the requirements of section 328 of the German Code of Civil Procedure (Zivilprozessordnung) are met, in particular that: (1) the courts have subject matter jurisdiction and there is no exclusive German jurisdiction, and confirming that (x) as regards the enforcement of the Indenture and the Notes, Section 11.12 of the Indenture is sufficient to confer jurisdiction to the courts referred to therein and (y) as regards the enforcement of this Agreement against the Bank, Section 13 of this Agreement is sufficient to confer jurisdiction to the courts referred to therein; (2) the Bank has put in a general appearance in the proceedings or actual personal service of process has been made on the Bank in a proper way (service of process in accordance with the provisions of the Process Agent Letter dated September 29, 2009, between the Bank and Deutsche Bank Americas Holding Corp. would be sufficient for such purposes) and timely enough to raise proper defenses; (3) such judgment is not contrary to an existing judgment which is to be recognized in the Federal Republic of Germany; (4) such judgment has not resulted from legal proceedings begun subsequent to other legal proceedings regarding the same subject matter, which legal proceedings are incompatible therewith; (5) the recognition of the foreign judgment is not obviously contrary to essential principles of the law of the Federal Republic of Germany, in particular rights granted under the constitutional law of the Federal Republic of Germany; they have no reason to believe that any payment judgment (other than for penal damages) enforcing the Indenture, the Notes or this Agreement, which judgment is in line with the law and the public policy of New York, would be obviously contrary either to the essential principles of the law of the Federal Republic of Germany or of the rights granted under the constitutional law of the Federal Republic of Germany; and (6) reciprocity of recognition of judgments between the Federal Republic of Germany and the jurisdiction rendering the judgment exists; and confirming that based upon counsel’s understanding with respect to the recognition of foreign money judgments by State and Federal courts in New York, it is unlikely that as between such courts and the courts of the Federal Republic of Germany at present reciprocity would be deemed not to exist. (ii) The opinion, dated as of such date, of C▇▇▇▇▇, G▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇ LLP, special U.S. counsel to the Bank, substantially to the effect that: (A) the Indenture has been duly qualified under the Trust Indenture Act and assuming that it has been duly authorized, executed, and delivered by the Bank as a matter of German law, each of the Indenture and this Agreement is a valid, binding and enforceable agreement of the Bank, except (x) as the enforceability thereof (1) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally, (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (3) is subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (4) that the effective interest rates on the Notes will comply with all applicable usury laws and (y) that such counsel expresses no opinion with respect to Section 7 hereof providing for indemnification and contribution; (B) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German law, the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, and when the Notes have been executed by the Bank and authenticated by the Trustee or its duly appointed agent in accordance with the provisions of the Indenture, and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid, binding and enforceable obligations of the Bank, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally, (ii) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (iii) is subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (iv) that the effective interest rates on the Notes will comply with all applicable usury laws; (C) the issuance and sale of the Notes pursuant to this Agreement and the performance by the Bank of its obligations in this, the Indenture and the Notes will not (a) result in a violation of any United States federal or New York State law or published rule or regulation that in such counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance or (b) require any consent, approval, authorization, registration or qualification of or registration with any governmental authority of the United States or the State of New York that in counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance, except such as have been obtained or effected under the Securities Act and the Trust Indenture Act, except that no opinion is expressed herein with respect to (i) the applicability of the U.S. federal securities law or the securities or Blue Sky laws of the various states in connection with the offer and sale of any Notes or (ii) whether the purchase of any Notes constitutes a “prohibited transaction” under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended; (D) the statements set forth under the heading “Description of Debt Securities of Deutsche Bank Aktiengesellschaft” in the Prospectus and “Description of Notes” in the Prospectus Supplement, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and (E) no registration of the Bank under the Investment Company Act of 1940, as amended, is required for the offer and sale of the Notes by the Bank in the manner contemplated by this Agreement and the Prospectus. (iii) The opinion, dated as of such date, of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP substantially to the effect that: (A) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and assuming that each of the Indenture and this Agreement has been duly authorized, executed, and delivered by the Bank as a matter of German law, each is a valid and binding agreement of the Bank, enforceable against the Bank in accordance with its terms, except (x) as the enforceability thereof (1) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally and (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law and (y) that such counsel expresses no opinion with respect to Section 7 hereof providing for indemnification and contribution; (B) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German law, the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, and when the Notes have been executed by the Bank and authenticated by the Trustee or its duly appointed agent in accordance with the provisions of the Indenture, and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Bank, enforceable in accordance with their respective terms, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency,
Appears in 1 contract
Sources: u.s. Distribution Agreement (Deutsche Bank Aktiengesellschaft)
Conditions of the Obligations of the Agents. Your obligation to solicit offers to purchase Notes as agent of the Bank in connection with any offering of Notes will be subject to the accuracy of the representations and warranties on the part of the Bank herein, to the accuracy of the statements of the Bank’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Bank of all covenants and agreements herein contained on its part to be performed and observed (at the time of such solicitation) and to the following additional conditions precedent when and as specified below:
(a) Prior to such solicitation, as the case may be:
(i) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Time of Sale Information and that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Notes on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented;
(ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the Frankfurt Stock Exchange; (b) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities or on commercial banking activities in the Federal Republic of Germany declared by German authorities; and (c) any outbreak or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be such as to make it, in your judgment, impracticable or inadvisable to proceed with the purchase of the Notes by you on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 433 under the Securities Act); and
(iv) since the date on which the Bank has filed with the Commission the Bank’s most recent Annual Report on Form 20-F, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the long-term senior unsecured debt rating accorded the Bank by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iv) above, as disclosed to you in writing by the Bank prior to such solicitation or (B) the relevant event shall have occurred and been known to you prior to such solicitation.
(b) On the Commencement Date, you shall have received:
(i) The opinion, dated as of such date, of the Bank’s Legal Department, or of other counsel satisfactory to you and who may be an official of the Bank, substantially to the effect that:
(A) the Bank is duly organized and validly existing as a stock corporation (Aktiengesellschaft) under the laws of the Federal Republic of Germany and has full power and authority to engage in banking business in the Federal Republic of Germany; the Bank is qualified, as far as the laws of the Federal Republic of Germany are concerned, to conduct the business in which it is engaged in each jurisdiction where it conducts business;
(B) the Bank has corporate power and capacity to execute and deliver the Indenture, the Notes and this Agreement and to perform its obligations thereunder and hereunder;
(C) the execution and delivery of the Indenture, the Notes and this Agreement have been duly authorized by all necessary corporate action of the Bank;
(D) each of the Indenture and this Agreement has been duly executed and delivered on behalf of the Bank;
(E) the forms of the Notes have been duly authorized and established by the Bank;
(F) the terms of a particular issuance of Notes will be, when established by an Issuer Order executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank, duly authorized by the Bank;
(G) when Notes of a particular issuance have been executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank Bank, they will have been validly executed on behalf of the Bank, and when such executed Notes have been authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and duly paid for by the purchasers thereof, they will be valid and binding obligations of the Bank to be performed through the office through which they have been incurred;
(H) none of the execution and delivery of the Indenture, the Notes and this Agreement, the issuance of the Notes pursuant to the Indenture, the offering and sale of the Notes in accordance with this Agreement and the performance by the Bank (acting through its head office or a branch office) of its obligations under the Indenture, the Notes or this Agreement (x) requires the consent, approval, authorization, registration or qualification of or with any governmental authority in the Federal Republic of Germany or (y) conflicts with or results in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to us after due inquiry, to which the Bank is a party or by which the Bank or its properties are bound, or the Articles of Association (Satzung) of the Bank or any statute in the Federal Republic of Germany or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to us after due inquiry and applicable to the Bank;
(I) to the best of such counsel’s knowledge, there are no legal or governmental actions, suits or proceedings before or by any court of governmental agency or body in the Federal Republic of Germany now pending or threatened against or affecting the Bank or its property other than as set forth in the Registration Statement and Prospectus, as amended and supplemented to date, and other than litigation that in each case is reasonably expected not to have a material adverse effect on the financial condition of the Bank and its consolidated subsidiaries, taken as a whole, or the ability of the Bank to perform its obligations under the Indenture, the Notes and this Agreement (through its head office or a branch office);
(J) it is not necessary under the law of the Federal Republic of Germany in order to enable either the Trustee or, to the extent permitted by the provisions of the Indenture, the holder of a Note to enforce rights under the Indenture that it should, as a result solely of its holding of the Note, be licensed, qualified or otherwise entitled to carry on business in the Federal Republic of Germany;
(K) the obligations of the Bank under the Indenture, the Notes and this Agreement constitute direct, unconditional, unsecured and unsubordinated obligations of the Bank to be performed through the office through which they have been incurred and rank at least pari passu with all other outstanding unsecured and unsubordinated obligations of the Bank for borrowed money and to general depositors, subject, however, to the priority conferred by the operation of German law upon some liabilities, such as costs of the insolvency proceeding and liabilities incurred as a result of the acts of the administrator for the insolvent estate;
(L) any judgment against the Bank enforcing the Notes, the Indenture and this Agreement given by the State or Federal courts of the State of New York would be recognized and enforced in the Federal Republic of Germany, provided that the requirements of section 328 of the German Code of Civil Procedure (Zivilprozessordnung) are met, in particular that:
(1) the courts have subject matter jurisdiction and there is no exclusive German jurisdiction, and confirming that (x) as regards the enforcement of the Indenture and the Notes, Section 11.12 of the Indenture is sufficient to confer jurisdiction to the courts referred to therein and (y) as regards the enforcement of this Agreement against the Bank, Section 13 of this Agreement is sufficient to confer jurisdiction to the courts referred to therein;
(2) the Bank has put in a general appearance in the proceedings or actual personal service of process has been made on the Bank in a proper way (service of process in accordance with the provisions of the Process Agent Letter dated September 29October 10, 20092006, between the Bank and Deutsche Bank Americas Holding Corp. would be sufficient for such purposes) and timely enough to raise proper defenses;
(3) such judgment is not contrary to an existing judgment which is to be recognized in the Federal Republic of Germany;
(4) such judgment has not resulted from legal proceedings begun subsequent to other legal proceedings regarding the same subject matter, which legal proceedings are incompatible therewith;
(5) the recognition of the foreign judgment is not obviously contrary to essential principles of the law of the Federal Republic of Germany, in particular rights granted under the constitutional law of the Federal Republic of Germany; they have no reason to believe that any payment judgment (other than for penal damages) enforcing the Indenture, the Notes or this Agreement, which judgment is in line with the law and the public policy of New York, would be obviously contrary either to the essential principles of the law of the Federal Republic of Germany or of the rights granted under the constitutional law of the Federal Republic of Germany; and
(6) reciprocity of recognition of judgments between the Federal Republic of Germany and the jurisdiction rendering the judgment exists; and confirming that based upon counsel’s understanding with respect to the recognition of foreign money judgments by State and Federal courts in New York, it is unlikely that as between such courts and the courts of the Federal Republic of Germany at present reciprocity would be deemed not to exist.
(ii) The opinion, dated as of such date, of C▇▇▇▇▇, G▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇ LLP, special U.S. counsel to the Bank, substantially to the effect that:
(A) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and assuming that it has been duly authorized, executed, and delivered by the Bank as a matter of German law, each of the Indenture and this Agreement is a valid, binding and enforceable agreement of the Bank, except (x) as the enforceability thereof (1) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally, (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (3) is subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (4) that the effective interest rates on the Notes will comply with all applicable usury laws and (y) that such counsel expresses no opinion with respect to Section 7 hereof providing for indemnification and contribution;
(B) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German law, the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, and when the Notes have been executed by the Bank and authenticated by the Trustee or its duly appointed agent in accordance with the provisions of the Indenture, and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid, binding and enforceable obligations of the Bank, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally, (ii) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (iii) is subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (iv) that the effective interest rates on the Notes will comply with all applicable usury laws;
(C) the issuance and sale of the Notes pursuant to this Agreement and the performance by the Bank of its obligations in this, the Indenture and the Notes will not (a) result in a violation of any United States federal or New York State law or published rule or regulation that in such counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance or (b) require any consent, approval, authorization, registration or qualification of or registration with any governmental authority of the United States or the State of New York that in counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance, except such as have been obtained or effected under the Securities Act and the Trust Indenture Act, except that no opinion is expressed herein with respect to (i) the applicability of the U.S. federal securities law or the securities or Blue Sky laws of the various states in connection with the offer and sale of any Notes or (ii) whether the purchase of any Notes constitutes a “prohibited transaction” under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended;
(D) the statements set forth under the heading “Description of Debt Securities of Deutsche Bank Aktiengesellschaft” in the Prospectus and “Description of Notes” in the Prospectus Supplement, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and
(E) no registration of the Bank under the Investment Company Act of 1940, as amended, is required for the offer and sale of the Notes by the Bank in the manner contemplated by this Agreement and the Prospectus.
(iii) The opinion, dated as of such date, of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP substantially to the effect that:
(A) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and assuming that each of the Indenture and this Agreement has been duly authorized, executed, and delivered by the Bank as a matter of German law, each is a valid and binding agreement of the Bank, enforceable against the Bank in accordance with its terms, except (x) as the enforceability thereof (1) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' ’ rights generally and (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law and (y) that such counsel expresses no opinion with respect to Section 7 hereof providing for indemnification and contribution;
(B) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German law, the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, and when the Notes have been executed by the Bank and authenticated by the Trustee or its duly appointed agent in accordance with the provisions of the Indenture, and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Bank, enforceable in accordance with their respective terms, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors’ rights generally and (ii) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law;
(C) the issuance and sale of the Notes pursuant to this Agreement and the performance by the Bank of its obligations in this, the Indenture and the Notes will not (a) result in a violation of any United States federal or New York State law or published rule or regulation that in such counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance or (b) require any consent, approval, authorization, registration or qualification of or registration with any governmental authority of the United States or the State of New York that in our experience normally would be applicable to general business entities with respect to such issuance, sale or performance, except such as have been obtained or effected under the Securities Act and the Trust Indenture Act, except that no opinion is expressed herein with respect to (i) the applicability of the U.S. federal securities laws or the securities or Blue Sky laws of the various states in connection with the offer and sale of any Notes or (ii) whether the purchase of any Notes constitutes a “prohibited transaction” under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended;
(D) the statements set forth under the heading “Description of Debt Securities” in the Prospectus and “Description of Notes” in the Prospectus Supplement, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions;
(E) no registration of the Bank under the Investment Company Act of 1940, as amended, is required for the offer and sale of the Notes by the Bank in the manner contemplated by this Agreement and the Prospectus;
(F) the Registration Statement (except the financial statements and schedules and other financial and statistical data included therein, as to which such counsel expresses no view), excluding the documents incorporated by reference therein, at the time it became effective, and the Prospectus (except as aforesaid), as of the date thereof, appeared on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the rules and regulations thereunder; and such counsel does not know of any contracts or other documents of a character required to be filed as exhibits to the Registration Statement or required to be described in the Registration Statement or the Prospectus that are not filed or described as required;
(G) the documents incorporated by reference in the Registration Statement and the Prospectus (except the financial statements and schedules and other financial and statistical data included therein, as to which such counsel expresses no view), as of the respective dates of their filing with the Securities and Exchange Commission, appeared on their face to be appropriately responsive in all material respects to the requirements of the Exchange Act and the rules and regulations thereunder;
(H) no information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, including the documents incorporated by reference therein (except the financial statements and schedules and other financial and statistical data included therein, as to which such counsel expresses no view and except for that part of the Registration Statement that constitutes the Form T-1), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, except that the belief set forth above does not cover information concerning an offering of particular Notes to
Appears in 1 contract
Sources: u.s. Distribution Agreement (Deutsche Bank Aktiengesellschaft)
Conditions of the Obligations of the Agents. Your obligation to solicit offers to purchase Notes as agent of the Bank in connection with any offering of Notes and your obligation to purchase Notes as principal pursuant to any Terms Agreement will be subject to the accuracy of the representations and warranties on the part of the Bank herein, to the accuracy of the statements of the Bank’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Bank of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Notes, at the time of such solicitation, and, in the case of your obligation to purchase Notes, at the time the Bank accepts the offer to purchase such Notes and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified below:
(a) Prior to such solicitationsolicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Time of Sale Information and that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Notes on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented;
(ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the Frankfurt Stock Exchange; (b) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities or on commercial banking activities in the Federal Republic of Germany declared by German authorities; and (c) any outbreak or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be such as to make it, in your judgment, impracticable or inadvisable to proceed with the purchase of the Notes by you on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 433 under the Securities Act); and
(iv) since the later of the date of this Agreement and the date on which the Bank has filed with the Commission the Bank’s most recent Annual Report on Form 20-F, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the long-term senior unsecured debt rating accorded the Bank by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act;
(A) except, in each case described in paragraph (i), (ii) or (iv) above, as disclosed to you in writing by the Bank prior to such solicitation or, in the case of a purchase of Notes, before the offer to purchase such Notes was made or (B) the relevant event shall have occurred and been known to you prior to such solicitationsolicitation or, in the case of a purchase of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of the Bank’s Legal Department, or of other counsel satisfactory to you and who may be an official of the Bank, substantially to the effect that:
(A) the Bank is duly organized and validly existing as a stock corporation (Aktiengesellschaft) under the laws of the Federal Republic of Germany and has full power and authority to engage in banking business in the Federal Republic of Germany; the Bank is qualified, as far as the laws of the Federal Republic of Germany are concerned, to conduct the business in which it is engaged in each jurisdiction where it conducts business;
(B) the Bank has corporate power and capacity to execute and deliver the Indenture, the Notes and this Agreement and to perform its obligations thereunder and hereunder;
(C) the execution and delivery of the Indenture, the Notes and this Agreement have been duly authorized by all necessary corporate action of the Bank;
(D) each of the Indenture and this Agreement has been duly executed and delivered on behalf of the Bank;
(E) the forms of the Notes have been duly authorized and established by the Bank;
(F) the terms of a particular issuance of Notes will be, when established by an Issuer Order executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank, duly authorized by the Bank;
(G) when Notes of a particular issuance have been executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank Bank, they will have been validly executed on behalf of the Bank, and when such executed Notes have been authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and duly paid for by the purchasers thereof, they will be valid and binding obligations of the Bank to be performed through the office through which they have been incurred;
(H) none of the execution and delivery of the Indenture, the Notes and this Agreement, the issuance of the Notes pursuant to the Indenture, the offering and sale of the Notes in accordance with this Agreement and the performance by the Bank (acting through its head office or a branch office) of its obligations under the Indenture, the Notes or this Agreement (x) requires the consent, approval, authorization, registration or qualification of or with any governmental authority in the Federal Republic of Germany or (y) conflicts with or results in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to us after due inquiry, to which the Bank is a party or by which the Bank or its properties are bound, or the Articles of Association (Satzung) of the Bank or any statute in the Federal Republic of Germany or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to us after due inquiry and applicable to the Bank;
(I) to the best of such counsel’s knowledge, there are no legal or governmental actions, suits or proceedings before or by any court of governmental agency or body in the Federal Republic of Germany now pending or threatened against or affecting the Bank or its property other than as set forth in the Registration Statement and Prospectus, as amended and supplemented to date, and other than litigation that in each case is reasonably expected not to have a material adverse effect on the financial condition of the Bank and its consolidated subsidiaries, taken as a whole, or the ability of the Bank to perform its obligations under the Indenture, the Notes and this Agreement (through its head office or a branch office);
(J) it is not necessary under the law of the Federal Republic of Germany in order to enable either the Trustee or, to the extent permitted by the provisions of the Indenture, the holder of a Note to enforce rights under the Indenture that it should, as a result solely of its holding of the Note, be licensed, qualified or otherwise entitled to carry on business in the Federal Republic of Germany;
(K) the obligations of the Bank under the Indenture, the Notes and this Agreement constitute direct, unconditional, unsecured and unsubordinated obligations of the Bank to be performed through the office through which they have been incurred and rank at least pari passu with all other outstanding unsecured and unsubordinated obligations of the Bank for borrowed money and to general depositors, subject, however, to the priority conferred by the operation of German law upon some liabilities, such as costs of the insolvency proceeding and liabilities incurred as a result of the acts of the administrator for the insolvent estate;
(L) any judgment against the Bank enforcing the Notes, the Indenture and this Agreement given by the State or Federal courts of the State of New York would be recognized and enforced in the Federal Republic of Germany, provided that the requirements of section Section 328 of the German Code of Civil Procedure (Zivilprozessordnung) are met, in particular that:
(1) the courts have subject matter jurisdiction and there is no exclusive German jurisdiction, and confirming that (x) as regards the enforcement of the Indenture and the Notes, Section 11.12 of the Indenture is sufficient to confer jurisdiction to the courts referred to therein and (y) as regards the enforcement of this Agreement against the Bank, Section 13 of this Agreement is sufficient to confer jurisdiction to the courts referred to therein;
(2) the Bank has put in a general appearance in the proceedings or actual personal service of process has been made on the Bank in a proper way (service of process in accordance with the provisions of the Process Agent Letter dated September 29, 2009, between the Bank and Deutsche Bank Americas Holding Corp. would be sufficient for such purposes) and timely enough to raise proper defenses;
(3) such judgment is not contrary to an existing judgment which is to be recognized in the Federal Republic of Germany;
(4) such judgment has not resulted from legal proceedings begun subsequent to other legal proceedings regarding the same subject matter, which legal proceedings are incompatible therewith;
(5) the recognition of the foreign judgment is not obviously contrary to essential principles of the law of the Federal Republic of Germany, in particular rights granted under the constitutional law of the Federal Republic of Germany; they have no reason to believe that any payment judgment (other than for penal damages) enforcing the Indenture, the Notes or this Agreement, which judgment is in line with the law and the public policy of New York, would be obviously contrary either to the essential principles of the law of the Federal Republic of Germany or of the rights granted under the constitutional law of the Federal Republic of Germany; and
(6) reciprocity of recognition of judgments between the Federal Republic of Germany and the jurisdiction rendering the judgment exists; and confirming that based upon counsel’s understanding with respect to the recognition of foreign money judgments by State and Federal courts in New York, it is unlikely that as between such courts and the courts of the Federal Republic of Germany at present reciprocity would be deemed not to exist.
(ii) The opinion, dated as of such date, of C▇▇▇▇▇, G▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇▇ LLP, special U.S. counsel to the Bank, substantially to the effect that:
(A) the Indenture has been duly qualified under the Trust Indenture Act and assuming that it has been duly authorized, executed, and delivered by the Bank as a matter of German law, each of the Indenture and this Agreement is a valid, binding and enforceable agreement of the Bank, except (x) as the enforceability thereof (1) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' ’ rights generally, (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (3) is subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (4) that the effective interest rates on the Notes will comply with all applicable usury laws and (y) that such counsel expresses no opinion with respect to Section 7 hereof providing for indemnification and contribution;
(B) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German law, the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, and when the Notes have been executed by the Bank and authenticated by the Trustee or its duly appointed agent in accordance with the provisions of the Indenture, and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid, binding and enforceable obligations of the Bank, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' ’ rights generally, (ii) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (iii) is subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (iv) that the effective interest rates on the Notes will comply with all applicable usury laws;
(C) the issuance and sale of the Notes pursuant to this Agreement and the performance by the Bank of its obligations in this, the Indenture and the Notes will not (a) result in a violation of any United States federal or New York State law or published rule or regulation that in such counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance or (b) require any consent, approval, authorization, registration or qualification of or registration with any governmental authority of the United States or the State of New York that in such counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance, except such as have been obtained or effected under the Securities Act and the Trust Indenture Act, except that no opinion is expressed herein with respect to (i) the applicability of the U.S. federal securities law or the securities or Blue Sky laws of the various states in connection with the offer and sale of any Notes or (ii) whether the purchase of any Notes constitutes a “prohibited transaction” under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended;
(D) the statements set forth under the heading “Description of Debt Securities of Deutsche Bank AktiengesellschaftSecurities” in the Prospectus and “Description of Notes” in the Prospectus Supplement, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and
(E) no registration of the Bank under the Investment Company Act of 1940, as amended, is required for the offer and sale of the Notes by the Bank in the manner contemplated by this Agreement and the Prospectus.
(iii) The opinion, dated as of such date, of D▇▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇▇ LLP substantially to the effect that:
(A) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and assuming that each of the Indenture and this Agreement has been duly authorized, executed, and delivered by the Bank as a matter of German law, each is a valid and binding agreement of the Bank, enforceable against the Bank in accordance with its terms, except (x) as the enforceability thereof (1) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' ’ rights generally and (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law and (y) that such counsel expresses no opinion with respect to Section 7 hereof providing for indemnification and contribution;
(B) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German law, the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, and when the Notes have been executed by the Bank and authenticated by the Trustee or its duly appointed agent in accordance with the provisions of the Indenture, and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Bank, enforceable in accordance with their respective terms, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, be
Appears in 1 contract
Sources: u.s. Distribution Agreement (Deutsche Bank Aktiengesellschaft)
Conditions of the Obligations of the Agents. Your obligation to solicit offers to purchase Notes as agent of the Bank in connection with any offering of Notes and your obligation to purchase Notes as principal pursuant to any Terms Agreement will be subject to the accuracy of the representations and warranties on the part of the Bank herein, to the accuracy of the statements of the Bank’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Bank of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Notes, at the time of such solicitation, and, in the case of your obligation to purchase Notes, at the time the Bank accepts the offer to purchase such Notes and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified below:
(a) Prior to such solicitationsolicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Time of Sale Information and that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Notes on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented;
(ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the Frankfurt Stock Exchange; (b) a material disruption in securities settlement, payment or clearance services in the United States or, in the event of a global offering, in any relevant foreign jurisdiction; (c) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities or on commercial banking activities in the Federal Republic of Germany declared by German authorities; and (cd) any outbreak or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be such as to make it, in your judgment, impracticable or inadvisable to proceed with the purchase of the Notes by you on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 433 under the Securities Act); and
(iv) since the later of the date of this Agreement and the date on which the Bank has filed with the Commission the Bank’s most recent Annual Report on Form 20-F, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the longnon-term senior unsecured deferrable dated subordinated (Tier 2) debt rating accorded the Bank by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act;
(A) except, in each case described in paragraph (i), (ii) or (iv) above, as disclosed to you in writing by the Bank prior to such solicitation or, in the case of a purchase of Notes, before the offer to purchase such Notes was made or (B) the relevant event shall have occurred and been known to you prior to such solicitationsolicitation or, in the case of a purchase of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of the Bank’s Legal Department, or of other counsel satisfactory to you and who may be an official of the Bank, substantially to the effect that:
(A) the Bank is duly organized and validly existing as a stock corporation (Aktiengesellschaft) under the laws of the Federal Republic of Germany and has full power and authority to engage in banking business in the Federal Republic of Germany; the Bank is qualified, as far as the laws of the Federal Republic of Germany are concerned, to conduct the business in which it is engaged in each jurisdiction where it conducts business;
(B) the Bank has corporate power and capacity to execute and deliver the Indenture, the Notes and this Agreement and to perform its obligations thereunder and hereunder;
(C) the execution and delivery of the Indenture, the Notes and this Agreement have been duly authorized by all necessary corporate action of the Bank;
(D) each of the Indenture and this Agreement has have been duly validly executed and delivered on behalf of the Bank;
(E) the Indenture constitutes a valid and binding agreement of the Bank, which, with respect to Notes incurred through a branch office of the Bank, is to be performed through such branch office;
(F) the forms of the Notes have been duly authorized and established by the Bank;
(FG) the terms of a particular issuance of Notes will be, when established by an Issuer Order executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank, duly authorized by the Bank;
(GH) when Notes of a particular issuance have been executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank Bank, they will have been validly executed on behalf of the Bank;
(I) when the terms of the Notes and of their issuance and sale have been duly established in conformity with the Indenture so as not to violate New York law or German law and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank, and when such executed the Notes have been authenticated duly executed and delivered by the Trustee Bank and authenticated in accordance with the provisions of the Indenture and delivered to issued and duly paid for sold as contemplated by the purchasers thereofRegistration Statement, they the Notes will be constitute valid and binding obligations of the Bank Bank, which, if incurred through a branch office of the Bank, are to be performed through the office through which they have been incurredsuch branch office;
(HJ) none of the execution and delivery of the Indenture, the Notes and this Agreement, the issuance of the Notes pursuant to the Indenture, the offering and sale of the Notes in accordance with this Agreement and the performance by the Bank (acting through its head office or a branch office) of its obligations under the Indenture, the Notes or this Agreement (x) requires the consent, approval, authorization, registration or qualification of or with any governmental authority in the Federal Republic of Germany or (y) conflicts with or results in a breach or violation of any of the terms and provisions of, or constitute constitutes a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to us after due inquiry, to which the Bank is a party or by which the Bank or its properties are bound, or the Articles of Association (Satzung) of the Bank or any statute in the Federal Republic of Germany or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to us after due inquiry and applicable to the Bank;
(IK) to the best of such counsel’s knowledge, there are no legal or governmental actions, suits or proceedings before or by any court of governmental agency or body in the Federal Republic of Germany now pending or threatened against or affecting the Bank or its of which any property of the Bank is subject other than as set forth in the Registration Statement and Prospectus, as amended and supplemented to date, and other than litigation that in each case is reasonably expected not to have a material adverse effect on the financial condition of the Bank and its consolidated subsidiaries, taken as a whole, or the ability of the Bank to perform its obligations under the Indenture, the Notes and this Agreement to which it is a party (through its head office or a branch office);
(JL) it is not necessary under the law of the Federal Republic laws of Germany in order to enable either the Trustee or, to the extent permitted by the provisions of the Indenture, the holder of a Note to enforce rights under the Indenture that it should, as a result solely of its holding of the Note, be licensed, qualified or otherwise entitled to carry on business in the Federal Republic of Germany;
(KM) the obligations of the Bank under the Indenture, Notes and under the Indenture insofar as they relate to the Notes and this Agreement constitute direct, unconditional, unsecured and unsubordinated obligations of the Bank to be performed through the office through which they have been incurred and rank at least pari passu with all other outstanding unsecured and unsubordinated obligations of the Bank for borrowed money and to general depositors, subject, however, to the priority conferred by the operation of German law upon some liabilities, such as costs of the insolvency proceeding and liabilities incurred as a result of the acts of the administrator for the insolvent estate;
(L) any judgment against the Bank enforcing the Notes, the Indenture and this Agreement given by the State or Federal courts of the State of New York would be recognized and enforced in the Federal Republic of Germany, provided that the requirements of section 328 of the German Code of Civil Procedure (Zivilprozessordnung) are met, in particular that:
(1) the courts have subject matter jurisdiction and there is no exclusive German jurisdiction, and confirming that (x) as regards the enforcement of the Indenture and the Notes, Section 11.12 of the Indenture is sufficient to confer jurisdiction to the courts referred to therein and (y) as regards the enforcement of this Agreement against the Bank, Section 13 of this Agreement is sufficient to confer jurisdiction to the courts referred to therein;
(2) the Bank has put in a general appearance in the proceedings or actual personal service of process has been made on the Bank in a proper way (service of process in accordance with the provisions of the Process Agent Letter dated September 29, 2009, between the Bank and Deutsche Bank Americas Holding Corp. would be sufficient for such purposes) and timely enough to raise proper defenses;
(3) such judgment is not contrary to an existing judgment which is to be recognized in the Federal Republic of Germany;
(4) such judgment has not resulted from legal proceedings begun subsequent to other legal proceedings regarding the same subject matter, which legal proceedings are incompatible therewith;
(5) the recognition of the foreign judgment is not obviously contrary to essential principles of the law of the Federal Republic of Germany, in particular rights granted under the constitutional law of the Federal Republic of Germany; they have no reason to believe that any payment judgment (other than for penal damages) enforcing the Indenture, the Notes or this Agreement, which judgment is in line with the law and the public policy of New York, would be obviously contrary either to the essential principles of the law of the Federal Republic of Germany or of the rights granted under the constitutional law of the Federal Republic of Germany; and
(6) reciprocity of recognition of judgments between the Federal Republic of Germany and the jurisdiction rendering the judgment exists; and confirming that based upon counsel’s understanding with respect to the recognition of foreign money judgments by State and Federal courts in New York, it is unlikely that as between such courts and the courts of the Federal Republic of Germany at present reciprocity would be deemed not to exist.
(ii) The opinion, dated as of such date, of C▇▇▇▇▇, G▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇ LLP, special U.S. counsel to the Bank, substantially to the effect that:
(A) the Indenture has been duly qualified under the Trust Indenture Act and assuming that it has been duly authorized, executed, and delivered by the Bank as a matter of German law, each of the Indenture and this Agreement is a valid, binding and enforceable agreement of the Bank, except (x) as the enforceability thereof (1) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally, (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (3) is subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (4) that the effective interest rates on the Notes will comply with all applicable usury laws and (y) that such counsel expresses no opinion with respect to Section 7 hereof providing for indemnification and contribution;
(B) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German law, the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, and when the Notes have been executed by the Bank and authenticated by the Trustee or its duly appointed agent in accordance with the provisions of the Indenture, and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid, binding and enforceable subordinated obligations of the Bank, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally, (ii) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (iii) is subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (iv) that the effective interest rates on the Notes will comply with all applicable usury laws;
(C) the issuance and sale of the Notes pursuant to this Agreement and the performance by the Bank of its obligations in this, the Indenture and the Notes will not (a) result in a violation of any United States federal or New York State law or published rule or regulation that in such counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance or (b) require any consent, approval, authorization, registration or qualification of or registration with any governmental authority of the United States or the State of New York that in counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance, except such as have been obtained or effected under the Securities Act and the Trust Indenture Act, except that no opinion is expressed herein with respect to (i) the applicability of the U.S. federal securities law or the securities or Blue Sky laws of the various states in connection with the offer and sale of any Notes or (ii) whether the purchase of any Notes constitutes a “prohibited transaction” under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended;
(D) the statements set forth under the heading “Description of Debt Securities of Deutsche Bank Aktiengesellschaft” in the Prospectus and “Description of Notes” in the Prospectus Supplement, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and
(E) no registration of the Bank under the Investment Company Act of 1940, as amended, is required for the offer and sale of the Notes by the Bank in the manner contemplated by this Agreement and the Prospectus.
(iii) The opinion, dated as of such date, of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP substantially to the effect that:
(A) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and assuming that each of the Indenture and this Agreement has been duly authorized, executed, and delivered by the Bank as a matter of German law, each is a valid and binding agreement of the Bank, enforceable against the Bank in accordance with its terms, except (x) as the enforceability thereof (1) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally and (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law and (y) that such counsel expresses no opinion with respect to Section 7 hereof providing for indemnification and contribution;
(B) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German law, the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, and when the Notes have been executed by the Bank and authenticated by the Trustee or its duly appointed agent in accordance with the provisions of the Indenture, and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Bank, enforceable in accordance with their respective terms, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, ranking pari passu among themselves
Appears in 1 contract
Sources: Distribution Agreement (Deutsche Bank Aktiengesellschaft)
Conditions of the Obligations of the Agents. Your obligation to solicit offers to purchase Notes as agent of the Bank in connection with any offering of Notes and your obligation to purchase Notes as principal pursuant to any Terms Agreement will be subject to the accuracy of the representations and warranties on the part of the Bank herein, to the accuracy of the statements of the Bank’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Bank of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Notes, at the time of such solicitation, and, in the case of your obligation to purchase Notes, at the time the Bank accepts the offer to purchase such Notes and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified below:
(a) Prior to such solicitationsolicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Time of Sale Information and that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Notes on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented;
(ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the Frankfurt Stock Exchange; (b) a material disruption in securities settlement, payment or clearance services in the United States or, in the event of a global offering, in any relevant foreign jurisdiction; (c) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities or on commercial banking activities in the Federal Republic of Germany declared by German authorities; and (cd) any outbreak or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be such as to make it, in your judgment, impracticable or inadvisable to proceed with the purchase of the Notes by you on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 433 under the Securities Act); and
(iv) since the later of the date of this Agreement and the date on which the Bank has filed with the Commission the Bank’s most recent Annual Report on Form 20-F, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the long-term non-preferred senior unsecured debt rating accorded the Bank by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act;
(A) except, in each case described in paragraph (i), (ii) or (iv) above, as disclosed to you in writing by the Bank prior to such solicitation or, in the case of a purchase of Notes, before the offer to purchase such Notes was made or (B) the relevant event shall have occurred and been known to you prior to such solicitationsolicitation or, in the case of a purchase of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of the Bank’s Legal Department, or of other counsel satisfactory to you and who may be an official of the Bank, substantially to the effect that:
(A) the Bank is duly organized and validly existing as a stock corporation (Aktiengesellschaft) under the laws of the Federal Republic of Germany and has full power and authority to engage in banking business in the Federal Republic of Germany; the Bank is qualified, as far as the laws of the Federal Republic of Germany are concerned, to conduct the business in which it is engaged in each jurisdiction where it conducts business;
(B) the Bank has corporate power and capacity to execute and deliver the Indenture, the Notes and this Agreement and to perform its obligations thereunder and hereunder;
(C) the execution and delivery of the Indenture, the Notes and this Agreement have been duly authorized by all necessary corporate action of the Bank;
(D) each of the Indenture and this Agreement has have been duly validly executed and delivered on behalf of the Bank;
(E) the Indenture constitutes a valid and binding agreement of the Bank, which, with respect to Notes incurred through a branch office of the Bank, is to be performed through such branch office;
(F) the forms of the Notes have been duly authorized and established by the Bank;
(FG) the terms of a particular issuance of Notes will be, when established by an Issuer Order executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank, duly authorized by the Bank;
(GH) when Notes of a particular issuance have been executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank Bank, they will have been validly executed on behalf of the Bank;
(I) when the terms of the Notes and of their issuance and sale have been duly established in conformity with the Indenture so as not to violate New York law or German law and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank, and when such executed the Notes have been authenticated duly executed and delivered by the Trustee Bank and authenticated in accordance with the provisions of the Indenture and delivered to issued and duly paid for sold as contemplated by the purchasers thereofRegistration Statement, they the Notes will be constitute valid and binding obligations of the Bank Bank, which, if incurred through a branch office of the Bank, are to be performed through the office through which they have been incurredsuch branch office;
(HJ) none of the execution and delivery of the Indenture, the Notes and this Agreement, the issuance of the Notes pursuant to the Indenture, the offering and sale of the Notes in accordance with this Agreement and the performance by the Bank (acting through its head office or a branch office) of its obligations under the Indenture, the Notes or this Agreement (x) requires the consent, approval, authorization, registration or qualification of or with any governmental authority in the Federal Republic of Germany or (y) conflicts with or results in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to us after due inquiry, to which the Bank is a party or by which the Bank or its properties are bound, or the Articles of Association (Satzung) of the Bank or any statute in the Federal Republic of Germany or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to us after due inquiry and applicable to the Bank;
(IK) to the best of such counsel’s knowledge, there are no legal or governmental actions, suits or proceedings before or by any court of governmental agency or body in the Federal Republic of Germany now pending or threatened against or affecting the Bank or its property other than as set forth in the Registration Statement and Prospectus, as amended and supplemented to date, and other than litigation that in each case is reasonably expected not to have a material adverse effect on the financial condition of the Bank and its consolidated subsidiaries, taken as a whole, or the ability of the Bank to perform its obligations under the Indenture, the Notes and this Agreement to which it is a party (through its head office or a branch office);
(JL) it is not necessary under the law of the Federal Republic of Germany in order to enable either the Trustee or, to the extent permitted by the provisions of the Indenture, the holder of a Note to enforce rights under the Indenture that it should, as a result solely of its holding of the Note, be licensed, qualified or otherwise entitled to carry on business in the Federal Republic of Germany;
(KM) the obligations of the Bank under the Indenture, Notes and under the Indenture insofar as they relate to the Notes and this Agreement constitute direct, unconditional, unsecured and unsubordinated obligations of the Bank to be performed through the office through which they have been incurred and rank at least pari passu amongst themselves and with all other outstanding unsecured and unsubordinated obligations of the Bank for borrowed money and to general depositorsBank, subject, however, to the priority conferred by the operation of German law upon some certain liabilities, such as liabilities preferred pursuant to Section 46f (5) of the German Banking Act (Kreditwesengesetz – “KWG”), deposits up to 100,000 euros (or equivalent in foreign currency) insured by the German statutory deposit protection scheme, deposits of natural persons and micro, small and medium sized enterprises, as well as for the costs of the insolvency proceeding and liabilities incurred as a the result of the acts of the administrator for the insolvent estate. Liabilities preferred pursuant to Section 46f (5) KWG are obligations of the Bank which do not arise from “debt instruments” within the meaning of Section 46f (6) sentence 1 KWG and obligations from unsecured unsubordinated debt instruments of the Bank where (x) the repayment or interest amount depends on the occurrence or non-occurrence of a future event, (y) the obligations are settled in kind (collectively, “Structured Instruments”) or (z) the instruments are typically traded on money markets (“Money Markets Instruments”). In an insolvency proceeding affecting, or resolution measures involving, the Bank, the competent court or resolution authority would determine which unsecured and unsubordinated obligations are preferred pursuant to Section 46f (5) KWG. The obligations of the Bank under the Notes and under the Indenture insofar as they relate to the Notes rank in priority of contractually subordinated obligations and obligations specified in Section 39 (1) of the German Insolvency Statute (Insolvenzordnung);
(LN) the courts in Germany (assuming they accept jurisdiction) would observe and give effect to the choice of the laws of New York as governing the Notes, the Indenture and this Agreement, except for the provisions thereof relating to ranking of the Notes and their status under Section 46f(6) sentence 1 of the German Banking Act (Kreditwesengesetz), which are expressed to be governed by the laws of Germany, and therefore, with respect to the ranking of the Notes in an insolvency proceeding affecting, or resolution measures involving, the Bank, such courts would observe and give effect to German law; and
(O) any judgment against the Bank enforcing the Notes, the Indenture and this Agreement and given by the State or Federal courts of the State of New York would be recognized and enforced in the Federal Republic of Germany, provided that the requirements of section Section 328 of the German Code of Civil Procedure (Zivilprozessordnung) are met, in particular that:
(1) the courts have subject matter jurisdiction and there is no exclusive German jurisdiction, and confirming that (x) as regards the enforcement of the Indenture and the Notes, Section 11.12 12.12 of the Indenture is sufficient to confer jurisdiction to the courts referred to therein and (y) as regards the enforcement of this Agreement against the Bank, Section 13 of this Agreement is sufficient to confer jurisdiction to the courts referred to therein;
(2) the Bank has put in a general appearance in the proceedings or actual personal service of process has been was made on the Bank in a proper way (service of process in accordance with the provisions of the Process Agent Letter dated September 29, 2009, between the Bank and Deutsche Bank Americas Holding Corp. DB USA Corporation would be sufficient for such purposes) and timely enough to raise proper allow raising of defenses;
(3) such judgment is not contrary to an existing judgment which is to be recognized in the Federal Republic of Germany;
(4) such judgment has not resulted from legal proceedings begun subsequent to other legal proceedings regarding the same subject matter, which legal proceedings are incompatible therewith;
(5) the recognition of the foreign judgment is not obviously contrary to the essential principles of the law of the Federal Republic laws of Germany, in particular rights granted under the constitutional law of the Federal Republic of Germany; they have there is no reason to believe that any payment judgment (other than for penal damages) enforcing the Indenture, the Notes or this Agreement, which judgment is in line with the law laws and the public policy of New York, would be obviously contrary either to the essential principles of the law of the Federal Republic laws of Germany or of the rights granted under the constitutional law of the Federal Republic of Germany; and
(6) reciprocity of recognition of judgments between the Federal Republic of Germany and the jurisdiction rendering the judgment exists; and confirming that based upon counsel’s understanding with respect to the recognition of foreign money judgments by State and Federal courts in New York, it is unlikely that as between such courts and the courts of the Federal Republic of Germany at present reciprocity would be deemed not to exist.
(ii) The opinion, dated as of such date, of C▇▇▇▇▇, G▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇▇ LLP, special U.S. counsel to the Bank, substantially to the effect that:
(A) the Indenture has been duly qualified under the Trust Indenture Act and assuming that it has been duly authorizedis a valid, executed, binding and delivered by the Bank as a matter of German law, each enforceable agreement of the Indenture and Bank;
(B) this Agreement is a valid, binding and enforceable agreement of the Bank, Bank (except (x) as the enforceability thereof (1) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally, (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (3) is subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (4) that the effective interest rates on the Notes will comply with all applicable usury laws and (y) that such counsel expresses no opinion with respect to Section 7 hereof of this Agreement providing for indemnification and contribution);
(BC) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German law, when the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, Indenture and when the Notes have been duly executed and delivered by the Bank and Bank, duly authenticated by the Trustee or its duly appointed agent the Authenticating Agent in accordance with the provisions of the Indenture, Indenture and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid, binding and enforceable obligations of the Bank, except as Bank entitled to the enforceability thereof (i) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally, (ii) is subject to general principles benefits of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (iii) is subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (iv) that the effective interest rates on the Notes will comply with all applicable usury lawsIndenture;
(CD) the statements under the headings “Description of Eligible Liabilities Senior Debt Securities” and “Resolution Measures” in the prospectus relating to the Notes and the statements under the heading “Description of Notes” in the prospectus supplement relating to the Notes, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions;
(E) the issuance and sale of the Notes to the Agent pursuant to this Agreement do not, and the performance by the Bank of its obligations in thisthis Agreement, the Indenture and the Notes will not not, (a) require any consent, approval, authorization, registration or qualification of or with any governmental authority of the United States or the State of New York that in such counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance, except such as have been obtained or effected under the Securities Act and the Trust Indenture Act (but such counsel expresses no opinion relating to the United States federal securities laws or any state securities or Blue Sky laws) or (b) result in a violation of any United States federal or New York State law or published rule or regulation that in such counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance or (b) require any consent, approval, authorization, registration or qualification of or registration with any governmental authority of but such counsel expresses no opinion relating to the United States or the State of New York that in counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance, except such as have been obtained or effected under the Securities Act and the Trust Indenture Act, except that no opinion is expressed herein with respect to (i) the applicability of the U.S. federal securities law laws or the any state securities or Blue Sky laws of the various states in connection with the offer and sale of any Notes or (ii) whether the purchase of any Notes constitutes a “prohibited transaction” under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amendedlaws);
(D) the statements set forth under the heading “Description of Debt Securities of Deutsche Bank Aktiengesellschaft” in the Prospectus and “Description of Notes” in the Prospectus Supplement, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and
(EF) no registration of the Bank under the U.S. Investment Company Act of 1940, as amended, is required for the offer and sale of the Notes by the Bank in the manner contemplated by this Agreement and the Prospectus.; and
(iiiG) The opinion, dated insofar as of such date, of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP substantially the foregoing opinions in this Section 4(b)(ii) relate to the effect that:
(A) the Indenture has been duly qualified under the Trust Indenture Act of 1939validity, as amended, and assuming that each of the Indenture and this Agreement has been duly authorized, executed, and delivered by the Bank as a matter of German law, each is a valid and binding agreement of the Bank, enforceable against the Bank in accordance with its terms, except (x) as the enforceability thereof (1) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally and (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law and (y) that such counsel expresses no opinion with respect to Section 7 hereof providing for indemnification and contribution;
(B) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German law, the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, and when the Notes have been executed by the Bank and authenticated by the Trustee or its duly appointed agent in accordance with the provisions of the Indenture, and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Bank, enforceable in accordance with their respective terms, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, bindi
Appears in 1 contract
Sources: u.s. Distribution Agreement (Deutsche Bank Aktiengesellschaft)
Conditions of the Obligations of the Agents. Your obligation to solicit offers to purchase Notes as agent of the Bank in connection with any offering of Notes and your obligation to purchase Notes as principal pursuant to any Terms Agreement will be subject to the accuracy of the representations and warranties on the part of the Bank herein, to the accuracy of the statements of the Bank’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Bank of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Notes, at the time of such solicitation, and, in the case of your obligation to purchase Notes, at the time the Bank accepts the offer to purchase such Notes and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified below:
(a) Prior to such solicitationsolicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Time of Sale Information and that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Notes on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented;
(ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the Frankfurt Stock Exchange; (b) a material disruption in securities settlement, payment or clearance services in the United States or, in the event of a global offering, in any relevant foreign jurisdiction; (c) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities or on commercial banking activities in the Federal Republic of Germany declared by German authorities; and (cd) any outbreak or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be such as to make it, in your judgment, impracticable or inadvisable to proceed with the purchase of the Notes by you on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 433 under the Securities Act); and
(iv) since the later of the date of this Agreement and the date on which the Bank has filed with the Commission the Bank’s most recent Annual Report on Form 20-F, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the long-term “preferred” senior unsecured debt rating accorded the Bank by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act;
(A) except, in each case described in paragraph (i), (ii) or (iv) above, as disclosed to you in writing by the Bank prior to such solicitation or, in the case of a purchase of Notes, before the offer to purchase such Notes was made or (B) the relevant event shall have occurred and been known to you prior to such solicitationsolicitation or, in the case of a purchase of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of the Bank’s Legal Department, or of other counsel satisfactory to you and who may be an official of the Bank, substantially to the effect that:
(A) the Bank is duly organized and validly existing as a stock corporation (Aktiengesellschaft) under the laws of the Federal Republic of Germany and has full power and authority to engage in banking business in the Federal Republic of Germany; the Bank is qualified, as far as the laws of the Federal Republic of Germany are concerned, to conduct the business in which it is engaged in each jurisdiction where it conducts business;
(B) the Bank has corporate power and capacity to execute and deliver the Indenture, the Notes and this Agreement and to perform its obligations thereunder and hereunder;
(C) the execution and delivery of the Indenture, the Notes and this Agreement have been duly authorized by all necessary corporate action of the Bank;
(D) each of the Indenture and this Agreement has have been duly validly executed and delivered on behalf of the Bank;
(E) the Indenture constitutes a valid and binding agreement of the Bank, which, with respect to Notes incurred through a branch office of the Bank, is to be performed through such branch office;
(F) the forms of the Notes have been duly authorized and established by the Bank;
(FG) the terms of a particular issuance of Notes will be, when established by an Issuer Order executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank, duly authorized by the Bank;
(GH) when Notes of a particular issuance have been executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank Bank, they will have been validly executed on behalf of the Bank;
(I) when the terms of the Notes and of their issuance and sale have been duly established in conformity with the Indenture so as not to violate New York law or German law and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank, and when such executed the Notes have been authenticated duly executed and delivered by the Trustee Bank and authenticated in accordance with the provisions of the Indenture and delivered to issued and duly paid for sold as contemplated by the purchasers thereofRegistration Statement, they the Notes will be constitute valid and binding obligations of the Bank Bank, which, if incurred through a branch office of the Bank, are to be performed through the office through which they have been incurredsuch branch office;
(HJ) none of the execution and delivery of the Indenture, the Notes and this Agreement, the issuance of the Notes pursuant to the Indenture, the offering and sale of the Notes in accordance with this Agreement and the performance by the Bank (acting through its head office or a branch office) of its obligations under the Indenture, the Notes or this Agreement (x) requires the consent, approval, authorization, registration or qualification of or with any governmental authority in the Federal Republic of Germany or (y) conflicts with or results in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to us after due inquiry, to which the Bank is a party or by which the Bank or its properties are bound, or the Articles of Association (Satzung) of the Bank or any statute in the Federal Republic of Germany or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to us after due inquiry and applicable to the Bank;
(IK) to the best of such counsel’s knowledge, there are no legal or governmental actions, suits or proceedings before or by any court of governmental agency or body in the Federal Republic of Germany now pending or threatened against or affecting the Bank or its property other than as set forth in the Registration Statement and Prospectus, as amended and supplemented to date, and other than litigation that in each case is reasonably expected not to have a material adverse effect on the financial condition of the Bank and its consolidated subsidiaries, taken as a whole, or the ability of the Bank to perform its obligations under the Indenture, the Notes and this Agreement to which it is a party (through its head office or a branch office);
(JL) it is not necessary under the law of the Federal Republic of Germany in order to enable either the Trustee or, to the extent permitted by the provisions of the Indenture, the holder of a Note to enforce rights under the Indenture that it should, as a result solely of its holding of the Note, be licensed, qualified or otherwise entitled to carry on business in the Federal Republic of Germany;
(KM) the obligations of the Bank under the Indenture, Notes and under the Indenture insofar as they relate to the Notes and this Agreement constitute direct, unconditional, unsecured and unsubordinated obligations of the Bank to be performed through the office through which they have been incurred and rank at least ranking pari passu among themselves and with all other outstanding unsecured and unsubordinated obligations of the Bank for borrowed money and to general depositorsBank, subject, however, to statutory priorities conferred on certain unsecured and unsubordinated obligations in the priority conferred by event of any resolution measures imposed on the operation Bank or in the event of German law upon some liabilitiesthe dissolution, such as costs liquidation, insolvency or composition of the Bank, or if other proceedings are opened for the avoidance of the insolvency proceeding of, or against, the Bank; and liabilities incurred as a result pursuant to Section 46f(5) of the acts German Banking Act (Kreditwesengesetz), the obligations under the Notes rank in priority to the Bank’s obligations under any of its debt instruments (Schuldtitel) within the meaning of Section 46f(6) sentence 1 of the administrator for German Banking Act (including the insolvent estateobligations under any such debt instruments that were issued by the Bank before July 21, 2018 and that are subject to Section 46f(9) of the German Banking Act) or any successor provision;
(LN) the courts in Germany (assuming they accept jurisdiction) would observe and give effect to the choice of the laws of New York as governing the Notes, the Indenture and this Agreement; and
(O) any judgment against the Bank enforcing the Notes, the Indenture and this Agreement and given by the State or Federal courts of the State of New York would be recognized and enforced in the Federal Republic of Germany, provided that the requirements of section Section 328 of the German Code of Civil Procedure (Zivilprozessordnung) are met, in particular that:
(1) the courts have subject matter jurisdiction and there is no exclusive German jurisdiction, and confirming that (x) as regards the enforcement of the Indenture and the Notes, Section 11.12 12.12 of the Indenture is sufficient to confer jurisdiction to the courts referred to therein and (y) as regards the enforcement of this Agreement against the Bank, Section 13 of this Agreement is sufficient to confer jurisdiction to the courts referred to therein;
(2) the Bank has put in a general appearance in the proceedings or actual personal service of process has been was made on the Bank in a proper way (service of process in accordance with the provisions of the Process Agent Letter dated September 29, 2009, between the Bank and Deutsche Bank Americas Holding Corp. DB USA Corporation would be sufficient for such purposes) and timely enough to raise proper allow raising of defenses;
(3) such judgment is not contrary to an existing judgment which is to be recognized in the Federal Republic of Germany;
(4) such judgment has not resulted from legal proceedings begun subsequent to other legal proceedings regarding the same subject matter, which legal proceedings are incompatible therewith;
(5) the recognition of the foreign judgment is not obviously contrary to the essential principles of the law of the Federal Republic laws of Germany, in particular rights granted under the constitutional law of the Federal Republic of Germany; they have there is no reason to believe that any payment judgment (other than for penal damages) enforcing the Indenture, the Notes or this Agreement, which judgment is in line with the law laws and the public policy of New York, would be obviously contrary either to the essential principles of the law of the Federal Republic laws of Germany or of the rights granted under the constitutional law of the Federal Republic of Germany; and
(6) reciprocity of recognition of judgments between the Federal Republic of Germany and the jurisdiction rendering the judgment exists; and confirming that based upon counsel’s understanding with respect to the recognition of foreign money judgments by State and Federal courts in New York, it is unlikely that as between such courts and the courts of the Federal Republic of Germany at present reciprocity would be deemed not to exist.
(ii) The opinion, dated as of such date, of C▇▇▇▇▇, G▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇▇ LLP, special U.S. counsel to the Bank, substantially to the effect that:
(A) the Indenture has been duly qualified under the Trust Indenture Act and assuming that it has been duly authorizedis a valid, executed, binding and delivered by the Bank as a matter of German law, each enforceable agreement of the Indenture and Bank;
(B) this Agreement is a valid, binding and enforceable agreement of the Bank, Bank (except (x) as the enforceability thereof (1) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally, (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (3) is subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (4) that the effective interest rates on the Notes will comply with all applicable usury laws and (y) that such counsel expresses no opinion with respect to Section 7 hereof of this Agreement providing for indemnification and contribution);
(BC) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German law, when the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, Indenture and when the Notes have been duly executed and delivered by the Bank and Bank, duly authenticated by the Trustee or its duly appointed agent the Authenticating Agent in accordance with the provisions of the Indenture, Indenture and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid, binding and enforceable obligations of the Bank, except as Bank entitled to the enforceability thereof (i) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally, (ii) is subject to general principles benefits of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (iii) is subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (iv) that the effective interest rates on the Notes will comply with all applicable usury lawsIndenture;
(CD) the statements under the headings “Description of Debt Securities — Senior Debt Funding Securities” and “Resolution Measures” in the prospectus relating to the Notes and the statements under the heading “Description of Notes” in the prospectus supplement relating to the Notes, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions;
(E) the issuance and sale of the Notes to the Agent pursuant to this Agreement do not, and the performance by the Bank of its obligations in thisthis Agreement, the Indenture and the Notes will not not, (a) require any consent, approval, authorization, registration or qualification of or with any governmental authority of the United States or the State of New York that in such counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance, except such as have been obtained or effected under the Securities Act and the Trust Indenture Act (but such counsel expresses no opinion relating to the United States federal securities laws or any state securities or Blue Sky laws) or (b) result in a violation of any United States federal or New York State law or published rule or regulation that in such counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance or (b) require any consent, approval, authorization, registration or qualification of or registration with any governmental authority of but such counsel expresses no opinion relating to the United States or the State of New York that in counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance, except such as have been obtained or effected under the Securities Act and the Trust Indenture Act, except that no opinion is expressed herein with respect to (i) the applicability of the U.S. federal securities law laws or the any state securities or Blue Sky laws of the various states in connection with the offer and sale of any Notes or (ii) whether the purchase of any Notes constitutes a “prohibited transaction” under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amendedlaws);
(D) the statements set forth under the heading “Description of Debt Securities of Deutsche Bank Aktiengesellschaft” in the Prospectus and “Description of Notes” in the Prospectus Supplement, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and
(EF) no registration of the Bank under the U.S. Investment Company Act of 1940, as amended, is required for the offer and sale of the Notes by the Bank in the manner contemplated by this Agreement and the Prospectus; and
(G) insofar as the foregoing opinions in this Section 4(b)(ii) relate to the validity, binding effect or enforceability of any agreement or obligation of the Bank, (i) such counsel has assumed that the Bank and each other party to such agreement or obligation has satisfied those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption is made as to the Bank regarding matters of the federal law of the United States of America or the law of the State of New York that in such counsel’s experience normally would be applicable to general business entities with respect to such agreement or obligation), (ii) such opinions are subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity, (iii) such opinions are subject to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (iv) such counsel has assumed that the effective interest rates on the Notes will comply with all applicable usury laws.
(iii) The opinion, dated as of such date, of D▇▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇▇ LLP substantially to the effect that:
(A) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and assuming that each of the Indenture and this Agreement has been duly authorized, executed, and delivered by the Bank as a matter of German law, each is a valid and binding agreement of the Bank, enforceable against the Bank in accordance with its terms, except (x) as the enforceability thereof (1) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally and (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law and (y) that such counsel expresses no opinion with respect to Section 7 hereof providing for indemnification and contribution;
(B) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German law, the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, and when the Notes have been executed by the Bank and authenticated by the Trustee or its duly appointed agent in accordance with the provisions of the Indenture, and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Bank, enforceable in accordance with their respective terms, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, Inde
Appears in 1 contract
Sources: u.s. Distribution Agreement (Deutsche Bank Aktiengesellschaft)
Conditions of the Obligations of the Agents. Your obligation to solicit offers to purchase Notes as agent of the Bank in connection with any offering of Notes and your obligation to purchase Notes as principal pursuant to any Terms Agreement will be subject to the accuracy of the representations and warranties on the part of the Bank herein, to the accuracy of the statements of the Bank’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Bank of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Notes, at the time of such solicitation, and, in the case of your obligation to purchase Notes, at the time the Bank accepts the offer to purchase such Notes and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified below:
(a) Prior to such solicitationsolicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Time of Sale Information and that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Notes on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented;
(ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the Frankfurt Stock Exchange; (b) a material disruption in securities settlement, payment or clearance services in the United States or, in the event of a global offering, in any relevant foreign jurisdiction; (c) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities or on commercial banking activities in the Federal Republic of Germany declared by German authorities; and (cd) any outbreak or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be such as to make it, in your judgment, impracticable or inadvisable to proceed with the purchase of the Notes by you on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 433 under the Securities Act); and
(iv) since the later of the date of this Agreement and the date on which the Bank has filed with the Commission the Bank’s most recent Annual Report on Form 20-F, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the long-term senior unsecured debt rating accorded the Bank by any “nationally recognized statistical rating organization,” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act;
(A) except, in each case described in paragraph (i), (ii) or (iv) above, as disclosed to you in writing by the Bank prior to such solicitation or, in the case of a purchase of Notes, before the offer to purchase such Notes was made or (B) the relevant event shall have occurred and been known to you prior to such solicitationsolicitation or, in the case of a purchase of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of the Bank’s Legal Department, or of other counsel satisfactory to you and who may be an official of the Bank, substantially to the effect that:
(A) the Bank is duly organized and validly existing as a stock corporation (Aktiengesellschaft) under the laws of the Federal Republic of Germany and has full power and authority to engage in banking business in the Federal Republic of Germany; the Bank is qualified, as far as the laws of the Federal Republic of Germany are concerned, to conduct the business in which it is engaged in each jurisdiction where it conducts business;
(B) the Bank has corporate power and capacity to execute and deliver the Indenture, the Notes and this Agreement and to perform its obligations thereunder and hereunder;
(C) the execution and delivery of the Indenture, the Notes and this Agreement have been duly authorized by all necessary corporate action of the Bank;
(D) each of the Indenture and this Agreement has been duly executed and delivered on behalf of the Bank;
(E) the forms of the Notes have been duly authorized and established by the Bank;
(F) the terms of a particular issuance of Notes will be, when established by an Issuer Order executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank, duly authorized by the Bank;
(G) when Notes of a particular issuance have been executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank Bank, they will have been validly executed on behalf of the Bank, and when such executed Notes have been authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and duly paid for by the purchasers thereof, they will be valid and binding obligations of the Bank to be performed through the office through which they have been incurred;
(H) none of the execution and delivery of the Indenture, the Notes and this Agreement, the issuance of the Notes pursuant to the Indenture, the offering and sale of the Notes in accordance with this Agreement and the performance by the Bank (acting through its head office or a branch office) of its obligations under the Indenture, the Notes or this Agreement (x) requires the consent, approval, authorization, registration or qualification of or with any governmental authority in the Federal Republic of Germany or (y) conflicts with or results in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to us after due inquiry, to which the Bank is a party or by which the Bank or its properties are bound, or the Articles of Association (Satzung) of the Bank or any statute in the Federal Republic of Germany or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to us after due inquiry and applicable to the Bank;
(I) to the best of such counsel’s knowledge, there are no legal or governmental actions, suits or proceedings before or by any court of governmental agency or body in the Federal Republic of Germany now pending or threatened against or affecting the Bank or its property other than as set forth in the Registration Statement and Prospectus, as amended and supplemented to date, and other than litigation that in each case is reasonably expected not to have a material adverse effect on the financial condition of the Bank and its consolidated subsidiaries, taken as a whole, or the ability of the Bank to perform its obligations under the Indenture, the Notes and this Agreement (through its head office or a branch office);
(J) it is not necessary under the law of the Federal Republic of Germany in order to enable either the Trustee or, to the extent permitted by the provisions of the Indenture, the holder of a Note to enforce rights under the Indenture that it should, as a result solely of its holding of the Note, be licensed, qualified or otherwise entitled to carry on business in the Federal Republic of Germany;
(K) the obligations of the Bank under the Indenture, the Notes and this Agreement constitute direct, unconditional, unsecured and unsubordinated obligations of the Bank to be performed through the office through which they have been incurred and rank at least pari passu with all other outstanding unsecured and unsubordinated obligations of the Bank for borrowed money and to general depositorsmoney, subject, however, to the priority conferred by the operation of German law upon some liabilities, such as deposits (except for deposits by credit institutions on their own behalf and for their own account, financial institutions, investment firms, insurance and reinsurance undertakings, collective investment undertakings, pension and retirement funds, public authorities and certain other deposits), the costs of the insolvency proceeding and liabilities incurred as a result of the acts of the administrator for the insolvent estate;
(L) the courts in the Federal Republic of Germany (assuming they accept jurisdiction) would observe and give effect to the choice of the laws of New York to govern the Notes, the Indenture and this Agreement, and such laws will accordingly govern the question whether the Notes, the Indenture and this Agreement, respectively, constitute legal, valid and binding obligations;
(M) any judgment against the Bank enforcing the Notes, the Indenture and this Agreement given by the State or Federal courts of the State of New York would be recognized and enforced in the Federal Republic of Germany, provided that the requirements of section Section 328 of the German Code of Civil Procedure (Zivilprozessordnung) are met, in particular that:
(1) the courts have subject matter jurisdiction and there is no exclusive German jurisdiction, and confirming that (x) as regards the enforcement of the Indenture and the Notes, Section 11.12 of the Indenture is sufficient to confer jurisdiction to the courts referred to therein and (y) as regards the enforcement of this Agreement against the Bank, Section 13 of this Agreement is sufficient to confer jurisdiction to the courts referred to therein;
(2) the Bank has put in a general appearance in the proceedings or actual personal service of process has been made on the Bank in a proper way (service of process in accordance with the provisions of the Process Agent Letter dated September 29, 2009, between the Bank and Deutsche Bank Americas Holding Corp. would be sufficient for such purposes) and timely enough to raise proper allow raising of defenses;
(3) such judgment is not contrary to an existing judgment which is to be recognized in the Federal Republic of Germany;
(4) such judgment has not resulted from legal proceedings begun subsequent to other legal proceedings regarding the same subject matter, which legal proceedings are incompatible therewith;
(5) the recognition of the foreign judgment is not obviously contrary to essential principles of the law of the Federal Republic of Germany, in particular rights granted under the constitutional law of the Federal Republic of Germany; they have no reason to believe that any payment judgment (other than for penal damages) enforcing the Indenture, the Notes or this Agreement, which judgment is in line with the law laws and the public policy of New York, would be obviously contrary either to the essential principles of the law of the Federal Republic of Germany or of the rights granted under the constitutional law of the Federal Republic of Germany; and
(6) reciprocity of recognition of judgments between the Federal Republic of Germany and the jurisdiction rendering the judgment exists; and confirming that based upon counsel’s understanding with respect to the recognition of foreign money judgments by State and Federal courts in New York, it is unlikely that as between such courts and the courts of the Federal Republic of Germany at present reciprocity would be deemed not to exist.
(ii) The opinion, dated as of such date, of C▇▇▇▇▇, G▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇▇ LLP, special U.S. counsel to the Bank, substantially to the effect that:
(A) the Indenture has been duly qualified under the Trust Indenture Act and assuming that it has been duly authorized, executed, and delivered by the Bank as a matter of German law, each of the Indenture and this Agreement is a valid, binding and enforceable agreement of the Bank, except (x) as the enforceability thereof (1) may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium insolvency and other similar laws affecting creditors' ’ rights generally, (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (3) is subject to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (4) that the effective interest rates on the Notes will comply with all applicable usury laws and (y) that such counsel expresses no opinion with respect to Section 7 hereof providing for indemnification and contribution;
(B) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German law, when the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, and when the Notes have been duly executed and delivered by the Bank and Bank, duly authenticated by the Trustee or its duly appointed agent the Authenticating Agent in accordance with the provisions of the Indenture, and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid, binding and enforceable obligations of the Bank, except as the enforceability thereof (i) may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium insolvency and other similar laws affecting creditors' ’ rights generally, (ii) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (iii) is subject to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (iv) such counsel has assumed that the effective interest rates on the Notes will comply with all applicable usury laws; provided that no opinion is expressed herein with respect to whether the purchase of any Notes constitutes a “prohibited transaction” under Section 406 of ERISA or Section 4975 of the Code;
(C) the issuance and sale of the Notes to the Agent pursuant to this Agreement do not, and the performance by the Bank of its obligations in thisthis Agreement, the Indenture and the Notes will not not, (a) result in a violation of any United States U.S. federal or New York State law or published rule or regulation that in such counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance or (b) require any consent, approval, authorization, registration or qualification of or registration with any governmental authority of the United States or the State of New York that in such counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance, except such as have been obtained or effected under the Securities Act and the Trust Indenture Act, except that no opinion is expressed herein with respect to (i) the applicability of the U.S. federal securities law or the any state securities or Blue Sky laws of the various states in connection with the offer and sale of any Notes or (ii) whether the purchase of any Notes constitutes a “prohibited transaction” under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, ERISA or Section 4975 of the Internal Revenue Code of 1986, as amendedCode;
(D) the statements set forth under the heading “Description of Debt Securities of Deutsche Bank AktiengesellschaftSecurities” in the Prospectus prospectus relating to the Notes and “Description of Notes” in the Prospectus Supplementprospectus supplement relating to the Notes, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and
(E) no registration of the Bank under the Investment Company Act of 1940, as amended, is required for the offer and sale of the Notes by the Bank in the manner contemplated by this Agreement and the Prospectus.
(iii) The opinion, dated as of such date, of D▇▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇▇ LLP substantially to the effect that:
(A) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and assuming that each of the Indenture due authorization, execution and this Agreement has been duly authorized, executed, and delivered delivery by the Bank as a matter of German law, each the Indenture is a valid and binding agreement of the Bank, enforceable against the Bank in accordance with its terms, except (x) as the enforceability thereof (1) may be limited by subject to applicable bankruptcy, insolvency, reorganization, liquidation, moratorium insolvency and other similar laws affecting creditors' ’ rights generally generally, concepts of reasonableness and (2) is subject to general equitable principles of equitygeneral applicability (including, regardless without limitation, concepts of whether such enforceability is considered at a proceeding in equity or law and (y) that such counsel expresses no opinion with respect to Section 7 hereof providing for indemnification and contribution;
(B) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German lawgood faith, the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, and when the Notes have been executed by the Bank and authenticated by the Trustee or its duly appointed agent in accordance with the provisions of the Indenture, and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Bank, enforceable in accordance with their respective terms, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, fair d
Appears in 1 contract
Sources: u.s. Distribution Agreement (Deutsche Bank Aktiengesellschaft)
Conditions of the Obligations of the Agents. Your obligation to solicit offers to purchase Notes as agent of the Bank in connection with any offering of Notes and your obligation to purchase Notes as principal pursuant to any Terms Agreement will be subject to the accuracy of the representations and warranties on the part of the Bank herein, to the accuracy of the statements of the Bank’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Bank of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Notes, at the time of such solicitation, and, in the case of your obligation to purchase Notes, at the time the Bank accepts the offer to purchase such Notes and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified below:
(a) Prior to such solicitationsolicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Time of Sale Information and that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Notes on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented;
(ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the Frankfurt Stock Exchange; (b) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities or on commercial banking activities in the Federal Republic of Germany declared by German authorities; and (c) any outbreak or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be such as to make it, in your judgment, impracticable or inadvisable to proceed with the purchase of the Notes by you on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 433 under the Securities Act); and
(iv) since the date on which the Bank has filed with the Commission the Bank’s most recent Annual Report on Form 20-F, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the long-term senior unsecured debt rating accorded the Bank by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iv) above, as disclosed to you in writing by the Bank prior to such solicitation or, in the case of a purchase of Notes, before the offer to purchase such Notes was made or (B) the relevant event shall have occurred and been known to you prior to such solicitationsolicitation or, in the case of a purchase of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of the Bank’s Legal Department, or of other counsel satisfactory to you and who may be an official of the Bank, substantially to the effect that:
(A) the Bank is duly organized and validly existing as a stock corporation (Aktiengesellschaft) under the laws of the Federal Republic of Germany and has full power and authority to engage in banking business in the Federal Republic of Germany; the Bank is qualified, as far as the laws of the Federal Republic of Germany are concerned, to conduct the business in which it is engaged in each jurisdiction where it conducts business;
(B) the Bank has corporate power and capacity to execute and deliver the Indenture, the Notes and this Agreement and to perform its obligations thereunder and hereunder;
(C) the execution and delivery of the Indenture, the Notes and this Agreement have been duly authorized by all necessary corporate action of the Bank;
(D) each of the Indenture and this Agreement has been duly executed and delivered on behalf of the Bank;
(E) the forms of the Notes have been duly authorized and established by the Bank;
(F) the terms of a particular issuance of Notes will be, when established by an Issuer Order executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank, duly authorized by the Bank;
(G) when Notes of a particular issuance have been executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank they will have been validly executed on behalf of the Bank, and when such executed Notes have been authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and duly paid for by the purchasers thereof, they will be valid and binding obligations of the Bank to be performed through the office through which they have been incurred;
(H) none of the execution and delivery of the Indenture, the Notes and this Agreement, the issuance of the Notes pursuant to the Indenture, the offering and sale of the Notes in accordance with this Agreement and the performance by the Bank (acting through its head office or a branch office) of its obligations under the Indenture, the Notes or this Agreement (x) requires the consent, approval, authorization, registration or qualification of or with any governmental authority in the Federal Republic of Germany or (y) conflicts with or results in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to us after due inquiry, to which the Bank is a party or by which the Bank or its properties are bound, or the Articles of Association (Satzung) of the Bank or any statute in the Federal Republic of Germany or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to us after due inquiry and applicable to the Bank;
(I) to the best of such counsel’s knowledge, there are no legal or governmental actions, suits or proceedings before or by any court of governmental agency or body in the Federal Republic of Germany now pending or threatened against or affecting the Bank or its property other than as set forth in the Registration Statement and Prospectus, as amended and supplemented to date, and other than litigation that in each case is reasonably expected not to have a material adverse effect on the financial condition of the Bank and its consolidated subsidiaries, taken as a whole, or the ability of the Bank to perform its obligations under the Indenture, the Notes and this Agreement (through its head office or a branch office);
(J) it is not necessary under the law of the Federal Republic of Germany in order to enable either the Trustee or, to the extent permitted by the provisions of the Indenture, the holder of a Note to enforce rights under the Indenture that it should, as a result solely of its holding of the Note, be licensed, qualified or otherwise entitled to carry on business in the Federal Republic of Germany;
(K) the obligations of the Bank under the Indenture, the Notes and this Agreement constitute direct, unconditional, unsecured and unsubordinated obligations of the Bank to be performed through the office through which they have been incurred and rank at least pari passu with all other outstanding unsecured and unsubordinated obligations of the Bank for borrowed money and to general depositors, subject, however, to the priority conferred by the operation of German law upon some liabilities, such as costs of the insolvency proceeding and liabilities incurred as a result of the acts of the administrator for the insolvent estate;
(L) any judgment against the Bank enforcing the Notes, the Indenture and this Agreement given by the State or Federal courts of the State of New York would be recognized and enforced in the Federal Republic of Germany, provided that the requirements of section 328 of the German Code of Civil Procedure (Zivilprozessordnung) are met, in particular that:
(1) the courts have subject matter jurisdiction and there is no exclusive German jurisdiction, and confirming that (x) as regards the enforcement of the Indenture and the Notes, Section 11.12 of the Indenture is sufficient to confer jurisdiction to the courts referred to therein and (y) as regards the enforcement of this Agreement against the Bank, Section 13 of this Agreement is sufficient to confer jurisdiction to the courts referred to therein;
(2) the Bank has put in a general appearance in the proceedings or actual personal service of process has been made on the Bank in a proper way (service of process in accordance with the provisions of the Process Agent Letter dated September 29, 2009, between the Bank and Deutsche Bank Americas Holding Corp. would be sufficient for such purposes) and timely enough to raise proper defenses;
(3) such judgment is not contrary to an existing judgment which is to be recognized in the Federal Republic of Germany;
(4) such judgment has not resulted from legal proceedings begun subsequent to other legal proceedings regarding the same subject matter, which legal proceedings are incompatible therewith;
(5) the recognition of the foreign judgment is not obviously contrary to essential principles of the law of the Federal Republic of Germany, in particular rights granted under the constitutional law of the Federal Republic of Germany; they have no reason to believe that any payment judgment (other than for penal damages) enforcing the Indenture, the Notes or this Agreement, which judgment is in line with the law and the public policy of New York, would be obviously contrary either to the essential principles of the law of the Federal Republic of Germany or of the rights granted under the constitutional law of the Federal Republic of Germany; and
(6) reciprocity of recognition of judgments between the Federal Republic of Germany and the jurisdiction rendering the judgment exists; and confirming that based upon counsel’s understanding with respect to the recognition of foreign money judgments by State and Federal courts in New York, it is unlikely that as between such courts and the courts of the Federal Republic of Germany at present reciprocity would be deemed not to exist.
(ii) The opinion, dated as of such date, of C▇▇▇▇▇, G▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇ LLP, special U.S. counsel to the Bank, substantially to the effect that:
(A) the Indenture has been duly qualified under the Trust Indenture Act and assuming that it has been duly authorized, executed, and delivered by the Bank as a matter of German law, each of the Indenture and this Agreement is a valid, binding and enforceable agreement of the Bank, except (x) as the enforceability thereof (1) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally, (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (3) is subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (4) that the effective interest rates on the Notes will comply with all applicable usury laws and (y) that such counsel expresses no opinion with respect to Section 7 hereof providing for indemnification and contribution;
(B) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German law, the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, and when the Notes have been executed by the Bank and authenticated by the Trustee or its duly appointed agent in accordance with the provisions of the Indenture, and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid, binding and enforceable obligations of the Bank, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally, (ii) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (iii) is subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (iv) that the effective interest rates on the Notes will comply with all applicable usury laws;
(C) the issuance and sale of the Notes pursuant to this Agreement and the performance by the Bank of its obligations in this, the Indenture and the Notes will not (a) result in a violation of any United States federal or New York State law or published rule or regulation that in such counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance or (b) require any consent, approval, authorization, registration or qualification of or registration with any governmental authority of the United States or the State of New York that in counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance, except such as have been obtained or effected under the Securities Act and the Trust Indenture Act, except that no opinion is expressed herein with respect to (i) the applicability of the U.S. federal securities law or the securities or Blue Sky laws of the various states in connection with the offer and sale of any Notes or (ii) whether the purchase of any Notes constitutes a “prohibited transaction” under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended;
(D) the statements set forth under the heading “Description of Debt Securities of Deutsche Bank Aktiengesellschaft” in the Prospectus and “Description of Notes” in the Prospectus Supplement, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and
(E) no registration of the Bank under the Investment Company Act of 1940, as amended, is required for the offer and sale of the Notes by the Bank in the manner contemplated by this Agreement and the Prospectus.
(iii) The opinion, dated as of such date, of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP substantially to the effect that:
(A) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and assuming that each of the Indenture and this Agreement has been duly authorized, executed, and delivered by the Bank as a matter of German law, each is a valid and binding agreement of the Bank, enforceable against the Bank in accordance with its terms, except (x) as the enforceability thereof (1) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally and (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law and (y) that such counsel expresses no opinion with respect to Section 7 hereof providing for indemnification and contribution;
(B) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German law, the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, and when the Notes have been executed by the Bank and authenticated by the Trustee or its duly appointed agent in accordance with the provisions of the Indenture, and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Bank, enforceable in accordance with their respective terms, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, t
Appears in 1 contract
Sources: u.s. Distribution Agreement (Deutsche Bank Aktiengesellschaft)
Conditions of the Obligations of the Agents. Your obligation to solicit offers to purchase Notes as agent of the Bank in connection with any offering of Notes and your obligation to purchase Notes as principal pursuant to any Terms Agreement will be subject to the accuracy of the representations and warranties on the part of the Bank herein, to the accuracy of the statements of the Bank’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Bank of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Notes, at the time of such solicitation, and, in the case of your obligation to purchase Notes, at the time the Bank accepts the offer to purchase such Notes and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified below:
(a) Prior to such solicitationsolicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Time of Sale Information and that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Notes on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented;
(ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the Frankfurt Stock Exchange; (b) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities or on commercial banking activities in the Federal Republic of Germany declared by German authorities; and (c) any outbreak or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be such as to make it, in your judgment, impracticable or inadvisable to proceed with the purchase of the Notes by you on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 433 under the Securities Act); and
(iv) since the date on which the Bank has filed with the Commission the Bank’s most recent Annual Report on Form 20-F, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the long-term senior unsecured debt rating accorded the Bank by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iv) above, as disclosed to you in writing by the Bank prior to such solicitation or, in the case of a purchase of Notes, before the offer to purchase such Notes was made or (B) the relevant event shall have occurred and been known to you prior to such solicitationsolicitation or, in the case of a purchase of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of the Bank’s Legal Department, or of other counsel satisfactory to you and who may be an official of the Bank, substantially to the effect that:
(A) the Bank is duly organized and validly existing as a stock corporation (Aktiengesellschaft) under the laws of the Federal Republic of Germany and has full power and authority to engage in banking business in the Federal Republic of Germany; the Bank is qualified, as far as the laws of the Federal Republic of Germany are concerned, to conduct the business in which it is engaged in each jurisdiction where it conducts business;
(B) the Bank has corporate power and capacity to execute and deliver the Indenture, the Notes and this Agreement and to perform its obligations thereunder and hereunder;
(C) the execution and delivery of the Indenture, the Notes and this Agreement have been duly authorized by all necessary corporate action of the Bank;
(D) each of the Indenture and this Agreement has been duly executed and delivered on behalf of the Bank;
(E) the forms of the Notes have been duly authorized and established by the Bank;
(F) the terms of a particular issuance of Notes will be, when established by an Issuer Order executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank, duly authorized by the Bank;
(G) when Notes of a particular issuance have been executed by two persons named as attorneys-in-fact of the Bank in a power of attorney executed by two members of the Management Board of the Bank they will have been validly executed on behalf of the Bank, and when such executed Notes have been authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and duly paid for by the purchasers thereof, they will be valid and binding obligations of the Bank to be performed through the office through which they have been incurred;
(H) none of the execution and delivery of the Indenture, the Notes and this Agreement, the issuance of the Notes pursuant to the Indenture, the offering and sale of the Notes in accordance with this Agreement and the performance by the Bank (acting through its head office or a branch office) of its obligations under the Indenture, the Notes or this Agreement (x) requires the consent, approval, authorization, registration or qualification of or with any governmental authority in the Federal Republic of Germany or (y) conflicts with or results in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument, known to us after due inquiry, to which the Bank is a party or by which the Bank or its properties are bound, or the Articles of Association (Satzung) of the Bank or any statute in the Federal Republic of Germany or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to us after due inquiry and applicable to the Bank;
(I) to the best of such counsel’s knowledge, there are no legal or governmental actions, suits or proceedings before or by any court of governmental agency or body in the Federal Republic of Germany now pending or threatened against or affecting the Bank or its property other than as set forth in the Registration Statement and Prospectus, as amended and supplemented to date, and other than litigation that in each case is reasonably expected not to have a material adverse effect on the financial condition of the Bank and its consolidated subsidiaries, taken as a whole, or the ability of the Bank to perform its obligations under the Indenture, the Notes and this Agreement (through its head office or a branch office);
(J) it is not necessary under the law of the Federal Republic of Germany in order to enable either the Trustee or, to the extent permitted by the provisions of the Indenture, the holder of a Note to enforce rights under the Indenture that it should, as a result solely of its holding of the Note, be licensed, qualified or otherwise entitled to carry on business in the Federal Republic of Germany;
(K) the obligations of the Bank under the Indenture, the Notes and this Agreement constitute direct, unconditional, unsecured and unsubordinated obligations of the Bank to be performed through the office through which they have been incurred and rank at least pari passu with all other outstanding unsecured and unsubordinated obligations of the Bank for borrowed money and to general depositors, subject, however, to the priority conferred by the operation of German law upon some liabilities, such as costs of the insolvency proceeding and liabilities incurred as a result of the acts of the administrator for the insolvent estate;
(L) any judgment against the Bank enforcing the Notes, the Indenture and this Agreement given by the State or Federal courts of the State of New York would be recognized and enforced in the Federal Republic of Germany, provided that the requirements of section 328 of the German Code of Civil Procedure (Zivilprozessordnung) are met, in particular that:
(1) the courts have subject matter jurisdiction and there is no exclusive German jurisdiction, and confirming that (x) as regards the enforcement of the Indenture and the Notes, Section 11.12 of the Indenture is sufficient to confer jurisdiction to the courts referred to therein and (y) as regards the enforcement of this Agreement against the Bank, Section 13 of this Agreement is sufficient to confer jurisdiction to the courts referred to therein;
(2) the Bank has put in a general appearance in the proceedings or actual personal service of process has been made on the Bank in a proper way (service of process in accordance with the provisions of the Process Agent Letter dated September 29October 10, 20092006, between the Bank and Deutsche Bank Americas Holding Corp. would be sufficient for such purposes) and timely enough to raise proper defenses;
(3) such judgment is not contrary to an existing judgment which is to be recognized in the Federal Republic of Germany;
(4) such judgment has not resulted from legal proceedings begun subsequent to other legal proceedings regarding the same subject matter, which legal proceedings are incompatible therewith;
(5) the recognition of the foreign judgment is not obviously contrary to essential principles of the law of the Federal Republic of Germany, in particular rights granted under the constitutional law of the Federal Republic of Germany; they have no reason to believe that any payment judgment (other than for penal damages) enforcing the Indenture, the Notes or this Agreement, which judgment is in line with the law and the public policy of New York, would be obviously contrary either to the essential principles of the law of the Federal Republic of Germany or of the rights granted under the constitutional law of the Federal Republic of Germany; and
(6) reciprocity of recognition of judgments between the Federal Republic of Germany and the jurisdiction rendering the judgment exists; and confirming that based upon counsel’s understanding with respect to the recognition of foreign money judgments by State and Federal courts in New York, it is unlikely that as between such courts and the courts of the Federal Republic of Germany at present reciprocity would be deemed not to exist.
(ii) The opinion, dated as of such date, of C▇▇▇▇▇, G▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇ LLP, special U.S. counsel to the Bank, substantially to the effect that:
(A) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and assuming that it has been duly authorized, executed, and delivered by the Bank as a matter of German law, each of the Indenture and this Agreement is a valid, valid and binding and enforceable agreement of the Bank, enforceable against the Bank in accordance with its terms, except (x) as the enforceability thereof (1) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' ’ rights generally, generally and (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (3) is subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (4) that the effective interest rates on the Notes will comply with all applicable usury laws and (y) that such counsel expresses no opinion with respect to Section 7 hereof providing for indemnification and contribution;
(B) assuming the forms of the Notes have been duly authorized by the Bank as a matter of German law, the forms of the Notes have been duly authorized and established in conformity with the provisions of the Indenture, and when the Notes have been executed by the Bank and authenticated by the Trustee or its duly appointed agent in accordance with the provisions of the Indenture, and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid, valid and binding and enforceable obligations of the Bank, enforceable in accordance with their respective terms, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' ’ rights generally, generally and (ii) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law, (iii) is subject to judicial application of foreign laws or foreign governmental actions affecting creditors’ rights and (iv) that the effective interest rates on the Notes will comply with all applicable usury laws;
(C) the issuance and sale of the Notes pursuant to this Agreement and the performance by the Bank of its obligations in this, the Indenture and the Notes will not (a) result in a violation of any United States federal or New York State law or published rule or regulation that in such counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance or (b) require any consent, approval, authorization, registration or qualification of or registration with any governmental authority of the United States or the State of New York that in counsel’s our experience normally would be applicable to general business entities with respect to such issuance, sale or performance, except such as have been obtained or effected under the Securities Act and the Trust Indenture Act, except that no opinion is expressed herein with respect to (i) the applicability of the U.S. federal securities law or the securities or Blue Sky laws of the various states in connection with the offer and sale of any Notes or (ii) whether the purchase of any Notes constitutes a “prohibited transaction” under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended;
(D) the statements set forth under the heading “Description of Debt Securities of Deutsche Bank AktiengesellschaftSecurities” in the Prospectus and “Description of Notes” in the Prospectus Supplement, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and;
(E) no registration of the Bank under the Investment Company Act of 1940, as amended, is required for the offer and sale of the Notes by the Bank in the manner contemplated by this Agreement and the Prospectus.;
(iii) The opinion, dated as of such date, of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP substantially to the effect that:
(AF) the Indenture has been duly qualified under Registration Statement (except the Trust Indenture Act of 1939financial statements and schedules and other financial and statistical data included therein, as amended, and assuming that each of the Indenture and this Agreement has been duly authorized, executed, and delivered by the Bank as a matter of German law, each is a valid and binding agreement of the Bank, enforceable against the Bank in accordance with its terms, except (x) as the enforceability thereof (1) may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally and (2) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or law and (y) that which such counsel expresses no opinion with respect view), excluding the documents incorporated by reference therein, at the time it became effective, and the Prospectus (except as aforesaid), as of the date thereof, appeared on their face to Section 7 hereof providing for indemnification be appropriately responsive in all material respects to the requirements of the Securities Act and contributionthe rules and regulations thereunder; and such counsel does not know of any contracts or other documents of a character required to be filed as exhibits to the Registration Statement or required to be described in the Registration Statement or the Prospectus that are not filed or described as required;
(BG) assuming the forms documents incorporated by reference in the Registration Statement and the Prospectus (except the financial statements and schedules and other financial and statistical data included therein, as to which such counsel expresses no view), as of the Notes have been duly authorized by respective dates of their filing with the Bank as a matter of German lawSecurities and Exchange Commission, appeared on their face to be appropriately responsive in all material respects to the forms requirements of the Notes have been duly authorized Exchange Act and established in conformity with the provisions of rules and regulations thereunder;
(H) no information has come to such counsel’s attention that causes such counsel to believe that the IndentureRegistration Statement, including the documents incorporated by reference therein (except the financial statements and when the Notes have been executed by the Bank schedules and authenticated by the Trustee or its duly appointed agent in accordance with the provisions of the Indentureother financial and statistical data included therein, and delivered as to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Bank, enforceable in accordance with their respective terms, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, which su
Appears in 1 contract
Sources: u.s. Distribution Agreement (Deutsche Bank Aktiengesellschaft)