abrechnungsvereinbarung 2010-09-23 [english]

8/8/2019 Abrechnungsvereinbarung 2010-09-23 [ENGLISH]

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Draft of 22 September 2010

Liquidation Agreement

between

HSH Real Estate AG, Hermannstrae 13, 20095 Hamburg, registered in the Commercial

Register of the District Court of Hamburg under registration number HRB 80145,

HSHRE herein

and

Seleno Vermgensverwaltungs-GmbH, Hamburger Allee 1, 60486 Frankfurt am Main,

registered in the Commercial Register of the District Court of Frankfurt am Main under

registration number HRB 78062,

"Seleno Vermgensverwaltungs-GmbH" or "Buyer 1" herein

and

Seleno Beteiligungs-GmbH & Co. KG, Hamburger Allee 1, 60486 Frankfurt am Main,

registered in the Commercial Register of the District Court of Frankfurt am Main under

registration number HRB 43047,

"Seleno Beteiligungs-KG" or "Buyer 2" herein

(Buyer 1 and Buyer 2 also referred to together herein as "Buyers")

(HSHRE, Buyer 1 and Buyer 2 also referred to together herein as "Parties")

and

Seleno GmbH, Hamburger Allee 1, 60486 Frankfurt am Main, registered in the Commercial

Register of the District Court of Frankfurt am Main under registration number HRB 80540,

- Draft of 22 September 2010 -

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Seleno herein

Preliminary remarks

0.1 HSHRE, Seleno Vermgensverwaltungs-GmbH and Seleno Beteiligungs-KG intend

with this Liquidation Agreement ("Agreement" herein) to comprehensively and

finally regulate all rights and claims between the respectively participating Parties

arising from and in connection with the Share Purchase Agreement concluded on

12/13 October 2006 before Notary Dr. Robert Diekgrf (Notarial Document No.:

4107/2006 DI) ("Share Purchase Agreement" or "SPA" herein) and to settle any

claims of the Parties among each other through final payment. Stilwerk, which still

appears as Seller in the Share Purchase Agreement, assigned to HSHRE in a Partition

Agreement dated 7/15 September 2009 all rights and claims arising from and existing

in connection with the Share Purchase Agreement. The parties expressly intend that

the Buyer pay HSHRE a settlement amount of EUR 2,390,000.00 concurrently with

the return of the guaranty of HSH Nordbank AG dated 12 October 2006 in the amount

of EUR 3,000,000.00 ( 3.11 of the SPA) to the Buyers.

0.2 Simultaneously with the Share Purchase Agreement, HSHRE concluded a "Carve Out

Agreement" with Seleno dated 12/13 October 2006 (Annex IV to the document of

Notary Dr. Robert Diekgrf (Notarial Document No.: 4107/2006 DI)) in which

HSHRE and Seleno transacted agreements concerning the property and conduct of the

W&F litigation between Seleno and BAM Deutschland AG. To conduct the litigation,

Seleno engaged the Kapellmann & Partners law firm through the consultancy contract

dated 02.04/18.04.2006 ("Consultancy Contract"); pursuant to the Carve Out

Agreement, the attorneys of Kapellmann & Partners have been directed by HSHRE in

the context of the W&F litigation. The W&F litigation has been settled. Differences

of opinion in the scope of the counsel provided to Seleno by the attorneys of

Kapellmann & Partners arose in concluding the settlement in the W&F litigation,

which might entitle Seleno to assert damages claims against the attorneys of

Kapellmann & Partners. HSHRE intends to make a lump sum settlement payment of

EUR 600,000.00 to Seleno, thereby settling all existing claims and rights of Seleno, if

any, against HSHRE arising from and in connection with the Carve Out Agreement

and the Project Management Contract. Seleno intends to assign to HSHRE any

damages claims it has against the attorneys of Kapellmann & Partners.

In view of the foregoing, the parties agree as follows:

1

Covenants concerning the Share Purchase Agreement

1.1 The Buyers undertake to pay HSHRE the amount of EUR 2,390,000.00 (in words: two

million three hundred ninety thousand) ("Payoff Amount") concurrently with the return

of the guaranty of HSH Nordbank AG dated 12 October 2010 [sic] in the amount of EUR

3,000,000.00 ( 3.11 of the SPA, Annex 3.11 of the SPA) ("HSH Guaranty") inaccordance with the following:

2- Draft of 22 September 2010

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1.1.1 HSHRE shall deliver the HSH Guaranty to the Buyers as soon as the

Buyers have provided HSHRE evidence of payment of the Payoff Amount;

HSHRE shall supply the Guaranty to HSH Nordbank AG in trust in advance for

payment of the Payoff Amount. Evidence of payment of the Payoff Amount is

supplied through confirmation of the Buyers' transferring bank that the amount

has been transferred to the bank account named under 1.1.2 of this agreement.

1.1.2 The Payoff Amount is payable to the following bank account of

HSHRE 10 bank working days after this agreement is concluded, but not before

the [1st] of October 2010:

Bank: HSH Nordbank AG

Sort code: 210 500 00

Account no.: 317 081 000

Account holder: HSH Real Estate AG

1.2 The Buyers declare that, with HSHRE's return of the HSH Guaranty to the Buyers, the

Buyers will no longer assert claims and rights arising from and in connection with the

Share Purchase Agreement and that all claims and rights, if any, arising from and in

connection with the Share Purchase Agreement are settled with the return of the HSH

Guaranty; the Buyers grant HSHRE a general release in this regard.

1.3 HSHRE declares that, with receipt of payment of the Payoff Amount at the account

named under 1.1.2 of this Agreement, it will not assert any more claims and rights

arising from and in connection with the Share Purchase Agreement, and that all claims

and rights, if any, arising from and in connection with the Share Purchase Agreement are

thereby settled; HSHRE grants the Buyers a general release in this regard.

2

Covenants concerning the Carve Out Agreement and the Project Management Contract

2.1 Seleno assigns to HSHRE, which accepts the assignment, all claims, particularly damages

claims arising from and in connection with the Consultancy Contract of the Kapellmann

& Partners law firm with respect to the W&F litigation, and any further existing claims

arising from and in connection with the General Contractor Agreement with BAM

Deutschland AG dated 13 April 2004 pursuant to the Assignment Agreement annexed asAnnex 2.1.

2.2 Seleno and HSHRE clarify that HSHRE expressly assumes neither the obligations of

Seleno resulting from the Consultancy Contract between the Kapellmann & Partner law

firm and Seleno nor the obligations of Seleno resulting from the General Contractor

Agreement between BAM Deutschland AG and Seleno nor any not yet completely

satisfied payment obligations nor other obligations.

2.3 HSHRE shall pay to Seleno a lump sum of EUR 600,000.00 (in words: six hundred

thousand) in settlement of all claims and rights of Seleno, if any, arising from and

existing in connection with the Carve Out Agreement, particularly arising from and in

connection with the Consultancy Contract with HSHRE and additionally in settlement of

all existing claims and rights of Seleno arising from and in connection with the Project


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Management Contract dated 16 October 2004 between HSH N Immobilien Holding

GmbH, the legal successor of which is HSHRE, and Seleno ("Settlement Amount").

2.3.1 The Settlement Amount is payable to the following bank account of HSHRE

10 bank working days after this agreement is concluded, but not before the [1st]

of October 2010:

Bank: [*]

Sort code: [*]

Account no.: [*]

Account holder: [*].

2.3.2 Seleno and HSHRE declare that they no longer have or assert any claims of

any nature against the other respective party arising from or in connection with

the Carve Out Agreement and the Project Management Contract transacted

with the Share Purchase Agreement and grant each other a general release in

this regard.

2.4 HSHRE is hereafter entitled to all future third party payments resulting from and in

connection with the Consultancy Contract, particularly payments from the liability

insurance policy of the Kapellmann & Partners law firm. Seleno shall make third parties

aware of this assignment at the request of HSHRE.

2.5 Seleno shall immediately provide to HSHRE all documents associated with the

Consultancy Contract with the Kapellmann & Partners law firm and immediately furnish

HSHRE all requested information.

2.6 Seleno grants HSHRE full legal and actual control over all matters and circumstances

arising from or in connection with the Consultancy Contract arising from and in

connection with the W&F litigation. This particularly includes all circumstances which

may be significant to the origin, existence or extent of obligations or charges of HSHRE

arising from or in connection with the Consultancy Contract ("HSHRE Charges"). This

means in particular:

2.6.1 HSHRE shall be immediately informed and kept informed of all

HSHRE Charges and their consequences which Seleno becomes aware of. This

also includes immediately supplying all documents in connection herewith in each

case.

2.6.2 Seleno shall refrain from doing anything which might impair the

enforcement, defence or minimisation of such HSHRE Charges or their

consequences. Seleno promises HSHRE that it shall personally take no further

actions and make no further declarations or become otherwise active arising from

and in connection with the Consultancy Contract.

2.6.3 Seleno shall actually and legally grant HSHRE the opportunity

(a) to conduct and conclude negotiations, settlements and

proceedings and judicial and agency proceedings of all kinds in the sole

discretion of HSHRE; and


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(b) in the sole discretion of HSHRE, to exercise, assert and have

disposal over all rights of Seleno, including by way of settlements and

agreements, arising from or in connection with the Consultancy

Contract with the Kapellmann & Partners law firm.

2.7 Seleno is also obliged within the scope of this 2.5 to cooperate with HSHRE withoutlimitation.

2.8 Purely as a matter of precaution, Seleno empowers and authorises HSHRE, with

immediate effect,

2.8.1 to exercise and assert all rights and claims arising from or in connection

with the Consultancy Contract, including in the name of Seleno; this includes all

rights and claims arising from security given or received arising from or in

connection with the Share Purchase Agreement and its reduction or release as well

as rights to alter legal relationships and rights and claims arising from the

assigned right;

2.8.2 to represent Seleno comprehensively in connection with the

Consultancy Contract, particularly to give and receive all declarations in the name

of Seleno which exist in connection with the assertion of any damages claims of

Seleno with respect to Kapellmann & Partners, particularly to assert or waive

rights and claims and to perform the actions specified in 2.5.3.

2.9 Seleno shall repeat this assignment if necessary at any time in the required or otherwise

desired form at the request of HSHRE.

3

Final provisions

3.1 Amendments and supplements to this Agreement must be in writing to be effective. The

same shall apply to the amendment or removal of this requirement of a writing.

3.2 This agreement is subject to German law. The exclusive judicial venue for all disputes

related to this Agreement is Hamburg.

3.3 Should a provision of this Agreement or a provision later added to it be or becomeentirely or partially void or should an omission appear in this Agreement, the validity of

the remaining provisions shall not be affected thereby. It is the express will of the Parties

to maintain the effectiveness of the remaining provisions of this Agreement under all

circumstances and for this reason waive section 139 of the German Civil Code

( Brgerliches Gesetzbuch BGB) entirely. In place of the invalid provision or to fill in

the omission, such valid and enforceable provision shall be retroactively treated as having

been agreed to which comes legally and economically closest to what the Parties have

desired or would have desired in accordance with the spirit and purpose of this

Agreement if they had considered this point in concluding the Agreement. If the

invalidity of a provision is based on an amount or time (period or date) of performance

that is specified therein, the provision with a legally permissible amount coming closestto the original amount shall be considered as having been agreed to.


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3.4 Each Party and Seleno shall personally bear the costs of their consultants.

3.5 This Agreement is strictly confidential. Disclosure of information from this agreement to

third parties is only permitted with the respective consent of the Parties and Seleno. The

Parties and Seleno are authorised to disclose the agreement to third parties if they are

legally obliged to make the disclosure. Each Party may disclose this Agreement tomembers of a legal, business consulting or tax consulting profession who are obligated to

a professional duty of confidentiality if and to the extent that such is necessary to protect

its own just interests.

ForHSHRE AG:

Hamburg,____________________________

____________________________________

Lutz von Stryk ppa. Bjrn Kunde

ForSeleno Vermgensverwaltungs-GmbH,

represented by Ursula Rutovitz:

Frankfurt,_____________________________

_____________________________________

Ursula Rutovitz

ForSeleno Beteiligungs GmbH & Co. KG,

represented by Seleno Vermgensverwaltungs

GmbH, this represented by Ursula Rutovitz:

Frankfurt,______________________________

______________________________________

Ursula Rutovitz

ForSeleno GmbH, represented by Ursula

Rutovitz:

Frankfurt,_____________________________

_____________________________________

Ursula Rutovitz


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abrechnungsvereinbarung 2010-09-23 [english]

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