TO THE SELLERS IN ACCORDANCE WITH CLAUSE 3.4. THIS
AMOUNT WILL SERVE THE SAME SECURITY PURPOSE AS THE SECURITY FOR TAXES AS
STIPULATED IN THIS CLAUSE 3.20. ANY AMOUNTS REMAINING IN THE ESCROW ACCOUNT I
(DUE TO THE ABOVE REQUIREMENT) AND ESCROW ACCOUNT II WILL BE RELEASED TO THE
SELLERS UPON THE EARLIER OF (I) THREE YEARS AFTER THE PAYMENT DATE AND (II) THE
DATE THAT IS SIX MONTHS AFTER THE LAST OF THE ACTIONS REQUIRED TO BE TAKEN
ACCORDING TO THE STEPS PLAN HAS BEEN COMPLETED. PROPCO BUYERS ACKNOWLEDGE THAT
THE INTEREST IN THE ESCROW ACCOUNT II HAS BEEN ASSIGNED TO THE LENDER BANKS,
SUBJECT TO THE RIGHTS OF THE SELLERS, PROPCO BUYERS AND OPCO TRANSFEREES TO SUCH
ESCROW ACCOUNT II AS DESCRIBED HEREIN AND IN THE ESCROW AGREEMENT.
The Escrow Agent shall release funds from Escrow Account II in accordance with
the terms of the Escrow Agreement. The Parties shall provide the Escrow Agent
with the necessary information and instructions foreseen in the Escrow Agreement
for the release of funds from Escrow Account II.
4.
VALUE ADDED TAX
4.1
THE PARTIES ASSUME THAT THE SALE AND TRANSFER OF THE
PROPERTIES AS PROVIDED IN THIS PROPCO AGREEMENT NEITHER COLLECTIVELY NOR
INDIVIDUALLY CONSTITUTE THE SALE AND TRANSFER OF A GOING CONCERN (KEINE
GESCHÄFTSVERÄUSSERUNG IM GANZEN) PURSUANT TO § 1 PARA.1A GERMAN VALUE ADDED TAX
ACT (UMSATZSTEUERGESETZ - USTG). THE SALE AND TRANSFER OF THE PROPERTIES IS VAT
EXEMPT PURSUANT TO § 4 NO. 9 LIT. A) USTG, UNLESS THE SELLER WAIVES THIS
VAT-EXEMPTION AND EXERCISES ITS OPTION PURSUANT TO § 9 PARA. 1 IN CONNECTION
WITH § 4 NO. 9 LIT. A) USTG TO MAKE THE SALE AND TRANSFER OF THE PROPERTY
SUBJECT TO VAT, AS FURTHER SET FORTH IN CLAUSE 4.2. WITH THE EXCEPTION IN
CLAUSE 4.2, THE SELLERS UNDERTAKE NOT TO EXERCISE THEIR OPTION RIGHTS PURSUANT
TO § 9 PARA. 1 IN CONNECTION WITH § 4 NO. 9 LIT. A) USTG.
4.2
PART OF THE OBERURSEL PROPERTY IS RENTED BY WAY OF VAT-ABLE
COMMERCIAL LEASE TO TEGUT... GUTBERLET STIFTUNG & CO. (TEGUT PREMISES).
OBERURSEL PROPCO HEREWITH WAIVES THE VAT-EXEMPTION AND EXERCISES ITS OPTION TO
MAKE THE SALE AND TRANSFER OF THE OBERURSEL PROPERTY SUBJECT TO VAT ACCORDING TO
§ 9 PARA 1, PARA 3 SENTENCE 2 USTG, TO THE EXTENT THE SALE AND TRANSFER RELATES
TO THE TEGUT PREMISES. THE PURCHASE PRICE FOR THE TEGUT PREMISES REPRESENTS
9.38% OF THE OVERALL PURCHASE PRICE FOR THE OBERURSEL PROPERTY (A FLOOR PLAN OF
THE TEGUT PREMISES IS ATTACHED AS ANNEX 4.2). IN THIS CONNECTION THE RELEVANT
SELLER GUARANTEES IN THE
PropCo Agreement
MEANING OF § 311 BGB THAT IT HAS VALIDLY OPTED FOR VAT WITH
RESPECT TO THE RENTAL SERVICES REGARDING THE TEGUT PREMISES AND THAT TO THE
KNOWLEDGE OF THE RELEVANT SELLER PROPCO THERE ARE NO FACTS OR CIRCUMSTANCES
WHICH HAVE THE CONSEQUENCE THAT THIS VAT OPTION IS IN PART OR IN FULL INVALID.
THE SELLERS SHALL HAND OVER TO THE PROPCO BUYERS THE ORIGINAL LEASE, INCLUDING
ALL