Subordinated loan

from Wikipedia, the free encyclopedia

Subordinated loans (or subordinated loans , English debt junior , subordinated loans ) are in business for mezzanine capital and financial instruments , in the event of liquidation or bankruptcy in rank behind other claims resign against such obligations companies.

General

In corporate financing, loans are the rule that contain absolute repayment obligations in accordance with Section 488 (1) BGB ( senior debt ) and therefore do not have privileged conditions in favor of other creditors . Both belong to the loan and are therefore outside capital from the perspective of the receiving company.

The shareholders of the borrowing company ( shareholder loan ), but also other lenders such as development banks ( KfW Bankengruppe ) or private equity / venture capital companies , can be considered as lenders . KfW provides subordinated loans for business start-ups . As a rule, subordinated loans are not secured and - due to their greater probability of default - have a higher interest rate . Collateralization is usually ruled out because the receivable falls due very late (in the event of liquidation or insolvency) and only then becomes ready for realization. For the commercial sale of mezzanine financing instruments that are not "financial instruments" within the meaning of Section 1 (11) of the KWG , such as silent partnerships , unsecuritized participation rights , participatory loans and subordinated loans, previously a permit under Section 34c GewO sufficient. Since the Small Investor Protection Act came into force on July 10, 2015, a permit in accordance with Section 34 f (1) sentence 1 no. 3 GewO has been required.

condition

The repayment of the subordinated loan is linked to the condition precedent that, in the event of bankruptcy or liquidation of the borrower, they only have to be repaid after other (senior) creditors have been satisfied ( senior debt ) . Subordination means that in the event of liquidation or insolvency of the debtor, the debtor's claim will only be serviced if all of the company's creditors have been satisfied within the meaning of Section 39 (2) InsO , but in the rank above or on a par with the deposit refund claims of the shareholders within the meaning of Section 199 sentence 2 InsO. This condition is as subordination configured subordination or subordination. A ranking is established in the event that the company's assets are insufficient to service all claims.

Subordination agreement

The subordination agreement is an enacting debt amendment agreement according to Section 311 (1) BGB. The MoMiG of October 2008 regulates the subordination to avoid insolvency law overindebtedness in Section 19 (2) InsO. According to this, liabilities for which subordination has been agreed in accordance with Section 39 (2) InsO are not to be recognized.

species

When relative subordination is an agreement between individual creditors, which serves to determine the ratio of their demands with each other. According to this, a creditor can only demand satisfaction if the creditor, behind whose demand he has - relatively - withdrawn, is balanced.

A distinction is also made between simple and qualified subordination. The simple subordination agreement provides that the claim is subordinate to the claims of all other creditors. The subordination can refer not only to the present, but also to the future demands. In the case of simple subordination, the withdrawing claim can already be repaid in full or in part when all the priority claims have been met. The subordination takes place only behind the other outside capital, while a subordination in the rank of the equity capital is demanded with the qualified one. In addition, the claim may only be asserted from the freely available annual or liquidation surplus or from the freely available assets exceeding the other liabilities of the company, and only after the satisfaction of all company creditors and on an equal footing with the contribution refund claims of co-shareholders.

The subordination agreement has the consequence that the claim is to be considered in the agreed rank. The MoMiG means that neither simple nor qualified subordination in over-indebtedness is to be taken into account.

A subordination agreement can, however, also be pronounced retrospectively by a "normal" creditor as part of a restructuring in order to eliminate the threat of over-indebtedness of a corporation or a partnership to which only corporations have assumed personal liability. In the case of over-indebtedness according to Section 19 InsO, there is an obligation to file for insolvency in accordance with Section 92 AktG, Section 64 GmbHG, Section 130a and Section 177a HGB .

Precedence

In the event of liquidation or insolvency, there is the following order of precedence for a subordination agreement:

  1. Normal liabilities ( suppliers , banks : senior debt ),
  2. Subordinated loan ( junior debt ),
  3. Shareholder loans,
  4. Equity .

If liquidation or insolvency assets are still available after normal liabilities have been satisfied, the junior debt must first be repaid before the shareholders get their equity back.

Accounting

The subordination does not lead to the extinction of a liability, so that it must continue to be recognized in the balance sheet according to Section 266 (3) C HGB. For the overindebted status, on the other hand, since the BGH judgment of January 8, 2001, the liability is to be recognized neither with a simple (for third-party liabilities) nor with a qualified (shareholder loan) subordination (Section 19 (2) InsO).

International rating agencies recognize such hybrid forms of financing for the debtor in whole or in part as economic equity . Subordinated loans can be expected to have at least 50% of their amount to improve the rating of economic equity . That is one of the main reasons for agreeing a subordination in the corporate crisis .

Individual evidence

  1. ↑ § 34f GewO - single standard. Retrieved October 9, 2019 .
  2. ↑ Harald Selzner / Dieter Leuering in Volker Römermann (ed.), Munich Lawyers Handbook GmbH Law , § 6, Rn. 97
  3. ↑ BGH, judgment of January 8, 2001, Az .: II ZR 88/99
  4. ↑ Jens Siebert / Daniela Lickert, Commercial and Tax Law Treatment of a Waiver of Claims , 2006, p. 27 ff.
  5. ↑ Harald Hess, Insolvenzrecht - Großkommentar , Volume 1, 2013, p. 572