Commission Decision of 29 September 2010 on State aid C 32/09 (ex NN 50/09) implemented by Germany for the restructuring of Sparkasse KölnBonn (notified under document C(2010) 6470) (Only the German text is authentic) (Text with EEA relevance) (2011/526/EU)

ANNEX III

APPOINTMENT AND DUTIES OF THE DIVESTITURE TRUSTEE THE DIVESTITURE TRUSTEE U.K.

I. The Divestiture Trustee U.K.

1. The Federal Republic of Germany shall appoint a Divestiture Trustee. U.K.

2. The Divestiture Trustee shall be one or several natural or legal person(s) independent of Sparkasse KölnBonn who will be approved by the Commission and appointed by the Federal Republic of Germany, and will have the duty to divest the Divestment Business in accordance with the obligations towards the Commission. U.K.

3. The Divestiture Trustee must be independent of Sparkasse KölnBonn and must possess the necessary qualifications to carry out its mandate, for example as an investment bank, consultant or auditor, and shall neither have nor become exposed to a conflict of interest. The Monitoring Trustee shall receive normal market remuneration from Sparkasse KölnBonn that does not impede the independent and effective fulfilment of its mandate. U.K.

II. Appointment of the Divestiture Trustee U.K.

Proposal by the Federal Republic of Germany U.K.

4. If Sparkasse KölnBonn has not entered into a binding sale and purchase agreement 1 month before the end of the extended Divestiture Period, the Federal Republic of Germany will submit for the Commission’s approval two or more persons as Divestiture Trustees and shall indicate which of those is its first choice. The proposal must contain sufficient information for the Commission to verify that the proposed Divestiture Trustee meets the conditions laid down under paragraph 3, and must in particular include: U.K.

(a)

the full terms of the proposed mandate together with all the provisions necessary to enable the Divestiture Trustee to fulfil its duties in accordance with these commitments;

(b)

the outline of a work plan describing how the Divestiture Trustee intends to carry out its assigned tasks.

Approval or rejection by the Commission U.K.

5. The Commission shall have the discretion to approve or reject the proposed Divestiture Trustees and to approve the proposed mandate subject to any modifications it deems necessary for the Divestiture Trustee to fulfil its obligations. The Divestiture Trustee shall be appointed within 1 week of the Commission’s approval, in accordance with the mandate approved by the Commission. U.K.

New proposal by the Federal Republic of Germany U.K.

6. If all the proposed Divestiture Trustees are rejected, the Federal Republic of Germany shall, within 1 week of being informed of the rejection, submit the names of at least two other persons or institutions, in accordance with the conditions and according to the procedure in paragraphs 1 and 5. U.K.

Divestiture Trustee nominated by the Commission U.K.

7. If all further proposed Divestiture Trustees are also rejected by the Commission, the Commission shall nominate a Divestiture Trustee(s), whom the Federal Republic of Germany shall appoint, or cause to be appointed, in accordance with a trustee mandate approved by the Commission. U.K.

III. The duties of the Divestiture Trustee U.K.

8. It shall be the duty of the Divestiture Trustee to fulfil the conditions and obligations laid down in the Decision regarding the business to be divested. The Divestiture Trustee shall prepare and carry out the purchase so that a sale and purchase agreement is signed […]. The Divestiture Trustee shall be authorised to carry out the sale of the Divestment Business on behalf of Sparkasse KölnBonn, without being subject to instructions, […]. U.K.

9. The Divestiture Trustee shall U.K.

(i)

propose to the Commission within 4 weeks of appointment a detailed plan of work describing how it plans to fulfil the conditions and obligations in the Decision regarding the business to be divested; it shall in particular present a concept for the divestiture and an assessment as to which divestiture strategy is the most promising;

(ii)

shall sell the divestment business to a buyer […], in so far as the Commission has not raised any objections regarding the buyer or the final binding sale and purchase agreement within 4 weeks of these being made known. The Divestiture Trustee shall include in the sale and purchase agreement such terms and conditions as it considers appropriate for an expedient sale. The Divestiture Trustee may include in the sale and purchase agreement such customary representations and warranties and indemnities as are reasonably required to effect the sale;

(iii)

take on the other duties which are conferred on the Divestiture Trustee in the Decision;

(iv)

propose such measures as it considers necessary to ensure compliance by the Federal Republic of Germany with all commitments towards the Commission, in particular the preservation of the full economic viability, marketability or competitiveness of the Divestment Business, the holding separate of the Divestment Business and the non-disclosure of competitively sensitive information;

(v)

submit to the Commission comprehensive monthly reports in English or in German on the development of the divestment procedure. These reports shall be submitted no later than 15 days after the end of each month. At the same time Sparkasse KölnBonn or the Federal Republic of Germany shall receive non-confidential versions of the report.

10. To prepare and carry out the divestiture, the Divestiture Trustee shall in particular provide the following services: U.K.

(i)

examining different options for the divestiture; a detailed proposal taking account of the framework conditions for the structuring and concluding of the sale procedure;

(ii)

compiling the necessary marketing documents on the participation of Sparkasse KölnBonn concerned (in particular the sales memorandum, teasers, and other presentations which are necessary or beneficial for a sale process). These are to be given to interested parties by way of initial information on the pending sale;

(iii)

in close agreement with the Sparkasse: preparing the content and logistical coordination of the due diligence process;

(iv)

identifying potential purchasers and contacting the decision-making bodies of these interested parties. For legally binding reasons with regard to the interests of secrecy and in line with the requirement for a non-discriminatory sale, a potential purchaser will, at the request of the Sparkasse, be denied access to the due diligence information (the burden of proof lying with the Sparkasse), whereby this right must be exercised within 3 working days following receipt of the list of potential purchasers;

(v)

collecting and examining sales offers made by interested parties; support with the evaluation of these offers;

(vi)

conducting sales negotiations with selected interested parties and preparing the conclusion of the contract.

11. The Divestiture Trustee will be given all the necessary powers of attorney with which the Sparkasse or the subsidiaries it controls will authorise the Divestiture Trustee to complete and carry out the divestiture. The powers of attorney include the power to issue sub-delegated powers in order to carry out and complete the divestiture correctly. U.K.

12. The powers of attorney in question shall be maintained until the divestiture is fully completed. The powers of attorney and all sub-delegated powers shall come to an end at the end of the Divestiture Trustee’s mandate. U.K.

13. The Divestiture Trustee is authorised to commission further advisers to support it in the sale process. As soon as consultancy costs exceed the overall sum of EUR […], the agreement of Sparkasse KölnBonn is required. If Sparkasse KölnBonn refuses to give its agreement, the Commission instead may, after consulting Sparkasse KölnBonn, approve the commissioning of advisers. Only the Divestiture Trustee can give the advisers instructions or directions. U.K.

14. The Divestiture Trustee has to involve the European Commission in each exchange with the Sparkasse, the Träger (responsible public institution) or Germany or to inform these immediately about the exchange. U.K.

15. The Träger and Sparkasse KölnBonn shall undertake to support the Divestiture Trustee, to cooperate with it and to provide it with all the information it requires or requests in order to carry out and duly fulfil this mandate. To this end, the Divestiture Trustee shall have access, within legally permissible limits and during normal working hours, to all documents, books and the management or other staff of Sparkasse KölnBonn. U.K.

16. Where considered necessary by the Sparkasse and the Träger for the proper execution of the divestiture, they shall allow the Divestiture Trustee access on request to any information or documents available only to them. This applies in particular to each version of the restructuring plan agreed with the European Commission. U.K.

17. The Sparkasse shall undertake to exempt the Divestiture Trustee from all claims for damages from third parties, which arise during or in connection with the execution of the mandate. This shall exclude damages based on a breach of obligation on the part of the Divestiture Trustee. Should the Divestiture Trustee be informed of claims which might lead to payment obligations on the part of the Träger or Sparkasse KölnBonn, the Divestiture Trustee shall immediately notify this. U.K.

18. The Divestiture Trustee shall be obliged to provide services always with the due care of a prudent businessman. Should there nevertheless be a breach of duty, the Divestiture Trustee shall only be liable towards the Sparkasse, the Träger or Germany to provide compensation for damages if the Divestiture Trustee or its bodies, employees or assistants have intentionally or through gross negligence brought about the reason for the liability in so far as the key contractual obligations are not affected. The Divestiture Trustee shall also be liable for breaching such obligations through simple negligence but only in the amount of typical and foreseeable damages. Liability for loss of anticipated profits shall be excluded. U.K.

19. The Commission may give the Divestiture Trustee instructions or directions in order to guarantee that the conditions and obligations in relation to the Divestment Business are fulfilled. U.K.

20. The cities of Cologne and Bonn and Sparkasse KölnBonn shall undertake not to give the Divestiture Trustee instructions for the duration of the mandate. U.K.