OUTSTANDING
OBLIGATION ON BEHALF OF THE APPLICABLE SELLER OPCO IN ORDER TO RECEIVE FULL
TITLE TO THE RESPECTIVE FF&E.
12.3
THE SELLERS AND THE PROPCO BUYERS SHALL, TOGETHER WITH THE OPCO
TRANSFEREES, (I) PROMPTLY AFTER THE SIGNING DATE COMMENCE TAKING INVENTORY OF
THE FF&E WITH ORIGINAL PURCHASE PRICE VALUES OF EUR 400 AND HIGHER AND SHALL
COMPLETE SUCH MEASURES BY NO LATER THAN 14 BUSINESS DAYS AFTER THE SIGNING DATE
AND (II) COMPLETE A FURTHER TAKING OF THE INVENTORY OF THE FF&E WITH ORIGINAL
PURCHASE PRICE VALUES OF EUR 400 AND HIGHER BY THE PAYMENT DATE.
13.
PURCHASE PRICE, DUE DATE
13.1
THE TOTAL PURCHASE PRICE FOR THE FF&E IS
EUR 2,950,000
(in words: two million nine hundred fifty thousand Euro)
(FF&E Purchase Price), including a total VAT of up to EUR 471,008 as set forth
in Clause 14 (however, plus any additional PropCo Buyer VAT, if any, as per
Clause 14.1). The FF&E Purchase Price (plus the respective applicable VAT which
consists of the included VAT amount plus any additional PropCo Buyer VAT
pursuant to Clause 14.1, if any) is allocated to the FF&E of the individual
Sellers as shown in Annex 13.1.
13.2
THE FF&E PURCHASE PRICE (IF APPLICABLE, PLUS ADDITIONAL PROPCO
BUYER VAT AS PER CLAUSE 14.1) WILL BECOME DUE ON THE DATE ON WHICH THE RELATED
PROPERTY PURCHASE PRICE BECOMES DUE; CLAUSES 3.16 THROUGH 3.17 SHALL APPLY
MUTATIS MUTANDIS.
14.
VALUE ADDED TAX
14.1
ACCORDING TO THE ASSUMPTION OF THE PARTIES PURSUANT TO
CLAUSE 4.1, THE PARTIES ASSUME THAT THE SALE AND TRANSFER OF THE FF&E AS
PROVIDED IN THIS PROPCO AGREEMENT DOES NEITHER COLLECTIVELY NOR INDIVIDUALLY
CONSTITUTE THE SALE OF A GOING CONCERN. HENCE, THE SALE AND TRANSFER OF THE FF&E
IS, IF AND TO THE EXTENT NOT VAT-EXEMPT ACCORDING TO § 4 NR. 28 USTG, SUBJECT TO
GERMAN VAT AT THE CURRENT RATE OF 19%, I.E. A TOTAL
PropCo Agreement
AMOUNT OF EUR 471,008. FOR THE AVOIDANCE OF DOUBT, ANY VAT UP TO
EUR 574,790, IF AND TO THE EXTENT PAYABLE, WILL BE BORNE BY THE SELLERS (SELLER
FF&E VAT AMOUNT), IT BEING UNDERSTOOD THAT ANY VAT WHICH IS ALLOCATED TO THE
FF&E AND EXCEEDS THE AMOUNT OF EUR 574,790 WILL BE PAID BY THE RESPECTIVE PROPCO
BUYER IN ADDITION TO THE FF&E PURCHASE PRICE. THE SELLER OPCOS SHALL ON THE
PAYMENT DATE DELIVER A PROPER INVOICE ACCORDANT TO § 14 PARA 4 USTG TO THE
RESPECTIVE PROPCO BUYER. THE SELLER FF&E VAT AMOUNT WILL BE PAID OUT OF THE
AGGREGATE PURCHASE PRICE ON THE PAYMENT DATE.
14.2
IF THE TAX AUTHORITIES ARE OF THE OPINION THAT THE SALE OF THE
FF&E COLLECTIVELY OR INDIVIDUALLY DOES CONSTITUTE A SALE AND TRANSFER OF A GOING
CONCERN (GESCHÄFTSVERÄUSSERUNG IM GANZEN) PURSUANT TO § 1 PARA. 1A USTG WHICH IS
NOT SUBJECT TO VAT (NICHT UMSATZSTEUERBAR), THE FOLLOWING WILL APPLY: THE
PURCHASE PRICE FOR THE FF&E WHICH WERE SOLD BY THE RELEVANT SELLER OPCO WILL BE
REDUCED BY THE VAT AMOUNT, IF ANY, WHICH WAS PAID