Exhibit 5. EXHIBIT 5 to the Agreement is deleted in its entirety and replaced with the attached EXHIBIT 5.
Exhibit 5. 9.1 contains a true and complete list of all of the following agreements by which the Company is bound or under which it may still have any obligation or liability (“Material Agreements”):
Exhibit 5. 8.1 contains a true and complete list, as of the date hereof, of all employees of the Company whose annual salary (including any fixed minimum bonus, but excluding any variable or discretionary bonus and any benefits) is in excess of € 50,000 (the “Key Employees”). True and complete copies of the employment agreements of all Key Employees, as in effect as of the date hereof, including all amendments and side agreements, have been delivered to Purchaser prior to the date hereof. As of the date hereof, no notice of termination of any such employment agreement has been given, and no Key Employee has expressed the intention to terminate his or her employment with the Company.
Exhibit 5. 8.2 contains a list, true and correct in all material respects, as of the date hereof, of all employees of the Company (including part-time employees and trainees (Auszubildende), including, for each person, its function, age, date of employment as well as the entire remuneration (including fixed salary, vacation payments, company car, bonus payments, direct insurance, pension agreement, if any, etc.) granted by the Company to such person for the year from January 1, 2013 to December 31, 2013 and for the year ending December 31, 2014.
Exhibit 5. 8.6 correctly sets forth each: (i) pension plan, agreement, program, policy, commitment or arrangement (including retirement, widows’, dependents’ and disability pensions) and old-age part-time schemes, (ii) other employee benefit plan, agreement, program, policy, commitment or arrangement (whether funded or unfunded, on a defined benefit or defined contribution basis, or otherwise) relating to retirement, death, disability, welfare benefits, medical benefits or anniversary payments, and (iii) severance, retention, employment, indemnification, consulting, “change of control”, bonus, incentive (equity-based, equity-related or otherwise), deferred compensation, employee loan, fringe benefit and other benefit plan, agreement, program, policy, commitment or other arrangement, in each case (under clauses (i), (ii) and (iii)) sponsored, maintained, entered into or contributed to, or required to be sponsored, maintained, entered into or contributed to, by the Company or the Lessee (the “Benefit Plans”). All the plans, agreements, programs, policies, commitments and arrangements set forth, or required to be set forth, in Exhibit 5.8.6 are and have been established, amended and operated in accordance with their terms and applicable Law. Any adjustments of pensions under the Benefit Plans have been made to the maximum extent permitted by applicable Law. True and complete copies of the following have been delivered to Purchaser prior to the date hereof: (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, written descriptions thereof), including any amendments thereto, and (ii) the two most recent actuarial valuations for each Benefit Plan (if any). Any pension or other obligations of the Company or the Lessee under the Benefit Plans have been fully funded based on reasonable actuarial assumptions and applicable Laws or, to the extent not funded, have been fully reflected in the 2014 Financial Statements in accordance with applicable accounting principles. No taxes are due and payable on any Benefit Plans or on any benefits (whether accrued or not) thereunder. All contributions to the pension security fund (Pensionssicherungsverein) (or similar funds or institutions under the Laws of any jurisdiction other than Germany) have been duly and timely paid. There are no pending or threatened claims against any Benefit Plan, the Company, the Lessee or the Hotel.
Exhibit 5. 1.10 contains a list of material intellectual property rights ("Material Intellectual Property Rights") indicating the nature and owner of the Material Intellectual Property Rights as of the Signing Date. To the Best Knowledge of the Sellers, the Material Intellectual Property Rights are not subject to any pending or threatened proceedings for cancellation or revocation. To the Best Knowledge of the Sellers (i) the use of the Material Intellectual Property Rights by the Group Companies does not infringe any third party rights and (ii) no third party infringes any Material Intellectual Property Rights. For the avoidance of doubt, standard software shall not be a Material Intellectual Property Right. The Material Intellectual Property Rights represent all intellectual property rights which are necessary and / or used by the Group Companies to carry out their respective businesses in all material respects in the same manner as conducted on the Signing Date and are owned or lawfully used by the respective Group Companies.
Exhibit 5. 1.12 lists all agreements between any of the Group Companies on the one side and any of the Sellers, any person related to any Seller or any affiliate of any Seller on the other side with any kind of obligations for any of the Group Companies that have not yet been fully settled prior to the Closing Date ("Shareholder Agreements").
Exhibit 5. 1.18 (i) contains a true and complete list of all employees employed on a permanent basis by the Group Companies with a fixed annual base salary (Grundgehalt) exceeding EUR 75,000.00 (in words: seventy-five thousand Euros) and of all managing directors of any Group Company, in each case as of 1 September 2008 ("Key Employees"). Except as set forth in Exhibit 5.1.18 (ii), as of the Signing Date, none of the Key Employees has given to any Group Company a written notice of termination of his or her employment. The execution or consummation of this Agreement or the transactions contemplated herein do not trigger any rights or claims of any Key Employee. No Group Company is bound by any option or similar plan relating to shares or other participations in any Group Company.
Exhibit 5. 1.19 contains a complete list of collective bargaining agreements and material agreements with unions, workers' councils and similar organisations by which any of the Group Companies is bound.
Exhibit 5. 1.28 contains a complete list of all material insurance policies to which any of the Group Companies is a policy holder as of the Signing Date. To the Best Knowledge of the Sellers, (i) the insurance policies listed in Exhibit 5.1.28 are valid and in full force, (ii) all premiums due on the above policies have been duly paid and (iii) there are no circumstances due to which any such policy might be voidable.
