THAT ANY AMOUNTS CLAIMED AND PAID TO THE BUYERS UNDER CLAUSE 22.1,
CLAUSES 22.2 AND 22.3 (I) SHALL NOT BE CREDITED AGAINST THE CAP AMOUNT.
For the avoidance of doubt a draw on the Escrow Account II pursuing to Clause
3.20 will not be charged against the Cap Amount.
19.3
FOR THE AVOIDANCE OF DOUBT, THE PER PROPERTY DE MINIMIS AMOUNT
AND CAP AMOUNT APPLY TO ANY OTHER LIABILITY OR OBLIGATION OF THE SELLERS,
HOLDCO, MANCO AND SSLI UNDER THIS PROPCO AGREEMENT, UNLESS EXPLICITLY STATED
OTHERWISE ELSEWHERE.
20.
MERGER CONTROL, CONDITION PRECEDENT
20.1
IT IS THE PARTIES' SHARED UNDERSTANDING THAT THE TRANSACTIONS
CONTEMPLATED IN THIS PROPCO AGREEMENT REQUIRE MERGER CONTROL CLEARANCE AND MAY
ONLY BE IMPLEMENTED IF ONE OF THE FOLLOWING CONDITIONS (MERGER CONDITION) IS
FULFILLED:
20.1.1
FOLLOWING A NOTIFICATION TO THE FEDERAL CARTEL OFFICE (FCO), THE
FCO HAS GIVEN WRITTEN NOTICE TO THE PARTIES THAT THE CONDITIONS FOR A
PROHIBITION OF THE INTENDED ACQUISITIONS PURSUANT TO § 36 PARA. 1 GERMAN ACT
AGAINST RESTRAINTS OF COMPETITION (GESETZ GEGEN WETTBEWERBSBE­SCHRÄNKUNG / GWB)
ARE NOT PRESENT; AND/OR
20.1.2
THE FCO HAS CLEARED THE INTENDED ACQUISITIONS PURSUANT TO § 40
PARA. 2 SENTENCE 1 GWB; AND/OR
20.1.3
THE ONE-MONTH PERIOD PRESCRIBED BY § 40 PARA. 1 SENTENCE 1 GWB
FOLLOWING A NOTIFICATION BY THE PARTIES HAS LAPSED WITHOUT THE PARTIES TO THE
INTENDED ACQUISITION HAVING RECEIVED NOTICE FROM THE FCO THAT PRINCIPAL
PROCEEDINGS HAVE BEEN INSTITUTED; AND/OR
20.1.4
THE FOUR-MONTH PERIOD OR AN EXTENDED PERIOD ALLOTTED FOR NEGATIVE
CLEARANCE PURSUANT TO § 40 PARA. 2 SENTENCE 2 GWB AND § 40 PARA. 2 SENTENCE 4
NO. 1 GWB, RESPECTIVELY, HAS LAPSED WITHOUT THE FCO DENYING CLEARANCE TO THE
INTENDED ACQUISITION; AND/OR
20.1.5
THE FCO HAS STATED IN WRITING, UPON REQUEST, THAT THE TRANSACTION
IS NOT SUBJECT TO NOTIFICATION.
20.2
THE PARTIES SHALL USE REASONABLE EFFORTS PROMPTLY TO OBTAIN, IF
NECESSARY, MERGER CLEARANCE FOR THE ACQUISITION OF THE PROPERTIES CONTEMPLATED
UNDER THIS PROPCO AGREEMENT. IN THE INTEREST OF SWIFT NOTIFICATION, THE PARTIES
SHALL COOPERATE TO THE BEST OF THEIR ABILITIES AND PROCURE THAT ANY INFORMATION
NEEDED FOR REGISTRATION PURPOSES IS MADE AVAILABLE AS SOON AS POSSIBLE. THE
PROPCO BUYERS HEREBY UNDERTAKE TO DELIVER WITHIN FIVE (5) BUSINESS DAYS AFTER
THE SIGNING DATE ALL NECESSARY INFORMATION REGARDING THE PROPCO BUYERS TO FILE
THE MERGER WITH THE FCO AND TO USE REASONABLE BEST EFFORTS TO FILE THE MERGER
WITH THE FCO WITHIN FIVE (5) BUSINESS DAYS AFTER THE DATE HEREOF.
PropCo Agreement
20.3
FOR THE AVOIDANCE OF DOUBT, IF AND TO THE EXTENT THAT THE FCO (I)
GRANTS CLEARANCE OF THE TRANSACTIONS CONTEMPLATED IN THIS PROPCO AGREEMENT ONLY
SUBJECT TO THE SATISFACTION OF ANY CONDITIONS BY EITHER PARTY OR ANY OF THEIR
AFFILIATES, OR (II) THREATENS NOT TO GRANT CLEARANCE OF THE TRANSACTIONS
CONTEMPLATED IN THIS PROPCO AGREEMENT IN CASE SUCH CONDITIONS ARE NOT FULFILLED,
THE PROPCO BUYERS SHALL BE OBLIGATED TO SATISFY SUCH CONDITIONS UNLESS THE
SATISFACTION OF SUCH CONDITIONS LEAD TO RESULTS HAVING A MATERIAL ADVERSE EFFECT
(WESENTLICH NACHTEILIG) IMPACT ON THE