Pool contract

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With a pool agreement at least two legally independent permanent join parties to achieve a common goal for a certain period by a contract together.

General

The English verb "pooling" means something like "to unite, to join together" or to bundle interests. In the Anglo-American legal language, the “pool” is a temporary contractual association of persons or companies in which the parties to the contract pursue the purpose of exercising their similar legal positions in a coordinated manner. There is no uniform definition for the term pool contract in German law and economics. The pool contract is an "association of interested parties ... for the purpose of pursuing a specific, common purpose or goal". In the legal literature, the terms pool and consortium are used synonymously. The pool contract is a financing instrument in which several creditors such as credit institutions , suppliers or credit insurers come together for the purpose of financing a company in crisis. Participants are the pool creditors and their joint debtor .

Legal issues

The pool contract is a partnership agreement that regulates the rights and obligations of the pool creditors among themselves as well as towards the debtor and third parties and can be designed as a non-profit trust or as joint assets . The latter leads to a GbR according to § § 705 ff. BGB , in which the pool creditors transfer parts of their assets to the GbR. The pool creditors are shareholders of the GbR. It is an internal society because they do not appear together externally in their connectedness as a GbR.

Want the pool creditors of a bank pool their collateral to keep, so they only appoint an administrator, the security interest in a foreign (by proxy ) or its own name (by authorization can claim). A pool contract can be concluded before a debtor's crisis (crisis-independent financing pool), after its occurrence or even after bankruptcy has opened and is harmless for the purpose of corporate restructuring. In insolvency, however, those collateral pool contracts can be challenged in which a pool bank receives incoming payments even though it is not the direct owner of a global assignment , but merely participates in this through the extended security purpose .

The pool contract contains the following key points:

  • Pool credits : The credits to be included in the pool contract are precisely defined. The credit lines and credit utilization are determined for each pool creditor as a percentage of the total pool credit lines and utilization.
  • Pool collateral : Loan collateral to be included is precisely defined. Care must be taken to ensure that mutually colliding loan collateral is harmonized (e.g. global assignment and anticipated constitution of ownership when transferring ownership as security in favor of different pool creditors). The loan collateral can either remain with each pool creditor or are transferred to the pool manager.
  • Typical pool clauses :
    • The pool manager - usually the house bank or the bank with the largest credit - appears to the debtor in the name of the pool and is the sole managing partner of the pool according to § 710 BGB.
    • Security purpose : A broad security purpose ensures that all pool securities are liable for all pool claims. However, joint liability in rem for all securities is required.
    • Balancing is a clause in which the pool banks involved mutually undertake to ensure, by means of account transfers to the debtor's credit accounts, that the credit utilization is proportionally distributed to all pool creditors at all times according to the percentage of the credit lines.
    • Company assets : It can be agreed that the loan collateral does not constitute company assets according to Section 718 (1) BGB.

Pool believers

The most important creditors of a company such as credit institutions, suppliers or credit insurers come into question as pool creditors.

Credit institutions

If a borrower has not only one credit institute acting as a house bank, but several bank accounts, he has bilateral, individual contractual relationships with them, for example through loan agreements and loan collateral distributed among several banks. Pooling is also useful when different banks hold colliding loan collateral that can only develop its collateral value with coordinated behavior. This is also unproblematic up to a corporate crisis of the common borrower (financing pool). At the latest in the crisis of the borrower, it is advisable to bundle the previously different loans and loan collateral, which can be made possible by a collateral pool contract. It is concluded between the credit institutions and requires the consent of the joint debtor because the security purpose extends to all pool loans and collateral and / or balances are exchanged between the pool banks.

Suppliers

Suppliers can secure their trade credits through all types of retention of title . They join together to form supplier pools in order to remove obstacles in securing and exploiting their security rights and to develop a common strategy.

Credit insurer

Credit insurance only makes sense if the insured supplier is not already secured by retention of title. The credit insurers insure the supplier's credit, which protects the default of creditors within the framework of the trade credit insurance. In the event of an insured event, the credit insurance is the creditor of the troubled company because it can no longer service its creditors on time.

Insurance pool

Something different is the amalgamation of insurance and reinsurance companies for the purpose of an insurance pool . Here, insurance companies do not face a common debtor as a creditor, but rather conclude pool agreements in order to share particularly dangerous or unbalanced risks among themselves and to bear them jointly. It is a community of dangers that balances out major risks. The insurers undertake to write all risks specified in the pool contract according to a previously defined participation key. The individual risks have not yet been determined when the pool is set up. One insurer at a time insures one policyholder and assigns the risk to the pool. Every pool member is involved in every risk of the pool.

The best-known application examples are:

Shareholder agreement

Germany

The shareholders' agreement (also voting pool agreement called) is in Germany, a non-regulated debt legal agreement between shareholders of a corporation , the purpose is to establish rights and obligations of the shareholders among themselves. This is an embodiment of the pool contract, which would otherwise be legally free or not clearly regulated. By combining votes in the pool contract, majorities can be achieved in the general meeting in order to enforce or prevent motions. It will u. a. contractual arrangements are made on what to do when a shareholder leaves (e.g. regulation of rights when selling shares ), whether majorities (e.g. blocking minority ) are to be formed or how the balance of power within the stock corporation should be regulated (e.g. B. Veto right for certain decisions, e.g. budget, election of the supervisory board, etc.) Vote pool agreements are also possible with other corporations and partnerships in order to regulate the votes in the shareholders ' meeting, but occur less often.

Switzerland

In Switzerland, the shareholders' agreement was also not regulated independently in stock corporation law and, as in Germany, serves to define the duties and rights of shareholders among one another. This means that the shareholders' agreement must be interpreted and qualified in connection with its content. Depending on the content, it can therefore be a unilateral contract of obligations (e.g. issuing employee shares and returning them), a bilateral contract of obligations (e.g. exchange of services: sales law) or a partnership agreement (e.g. achieving a common corporate goal based on coordinated behavior: corporate law ) act. In Switzerland there are no special formal requirements for the shareholders' agreement , but it finds its limits in the prohibition of excessive commitment (Art. 27 ZGB). It is often used to regulate shareholders' voting rights, the composition of the board of directors, competition clauses or pre-emptive rights.

Rent pool

A rental income community , also called rental pool (misunderstood) or rental pool, is an association of property owners in order to jointly bear rental risks, in particular the vacancy risk . With a rental income community, all rental income flows directly into a shared pool. From this, the payments to the individual members of the community are usually buffered during the year in order to achieve more constant payouts. It is important to ensure a balance between the reserve requirement for vacancies and the individual shareholders' interest in paying out. The manager of the pool is usually an executive. Often he is close to the WEG administration , or this takes on the tasks of the pool manager in personal union. The pool manager collects the rents and pays the claims of the WEG administration and, if necessary, third parties. The remaining amount is to be paid out to the shareholders on the basis of the shareholders' agreement. The advantage of the pool is that rental income continues to flow even if it is temporarily vacant after a tenant change. The monthly income is lower than with a direct rental, but the vacancy risk is distributed among all parties involved. The rental income community is usually run as a GbR, in addition to the apartment owner community. It is not subject to condominium law , but to the German Civil Code.

criticism

The rental pool system was highlighted as an advantage for junk property . If there are too many vacant apartments that cannot be rented due to structural defects or poor location, the compensation system collapses very quickly because the jointly generated income no longer covers the maintenance and repair costs.

literature

  • Martinek, Michael; Oechsler, Jürgen: Pool contracts . In: Herbert Schimansky, Herrmann-Josef Bunte, Hans-Jürgen Lwowski (eds.): Bankrechts-Handbuch . 2nd Edition. Volume II, Section 97 Rn. 17. Munich 2001, ISBN 3-406-46253-7 .
  • BGH V ZR 284/06, judgment of November 30, 2007 (disclosure obligations for rental pool recommendation as part of investment advice)
  • BGH V ZR 71/07, judgment of July 18, 2008 (contestation of contract based on a rental pool recommendation)
  • BGH III ZR 333/08, judgment of July 2, 2009 (Applicability of residential property law to rental pools)

Individual evidence

  1. ↑ Herbert Schimansky / Hermann-Josef Bunte / Hans-Jürgen Lwowski (eds.), Michael Martinek, Bankrechts-Handbuch , Volume II, 1997, § 97 Rn. 1
  2. ↑ Georg Buksch, The Pool Contract , 1987, p. 2
  3. ↑ Wolfgang Portisch, Financing in the Corporate Life Cycle , 2008, p. 404
  4. ^ Manfred Obermüller, Insolvenzrecht in der Bankpraxis , 2007, p. 923 ff.
  5. ↑ Folker Bittmann, Insolvenzstrafrecht , 2004, § 30 Rn. 10
  6. ↑ Folker Bittmann, Insolvenzstrafrecht , 2004, § 30 Rn. 12
  7. ↑ BGH WM 1993, 265
  8. ^ BGH, judgment of June 2, 2005, Az .: IX ZR 181/03
  9. ↑ BGH DZWiR 1998, 368 (376)
  10. ↑ Thomas Marx, The common perception of security rights in bankruptcy (pool agreements) , in: NJW 1978, p. 247
  11. ↑ Christoph Pfeiffer, Introduction to Reinsurance , 2013, p. 83
  12. ^ David Schneeberger; Shareholder Agreement (ABV) . Retrieved December 11, 2015.
  13. ↑ www.wz-online.de  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Dead Link / www.wz-online.de  
  14. ↑ limited preview in the Google book search
  15. ↑ www.pro-wohnen.de
  16. ↑ BGH sees joint responsibility for Badenia. In: Spiegel Online. March 20, 2007, accessed November 29, 2014 .
  17. ↑ Badenia should atone for scrap real estate. In: Spiegel Online. March 19, 2007, accessed November 29, 2014 .
  18. ↑ www.manager-magazin.de
  19. ^ Scrap real estate: Justice deal in the Badenia scandal. In: stern.de. March 12, 2007, accessed December 16, 2014 .
  20. ^ Scrap real estate scandal: BGH judgment on Badenia expected. In: handelsblatt.com. March 19, 2007, accessed November 29, 2014 .
  21. ^ BGH: Badenia knew deception. In: FAZ.net . June 29, 2010, accessed December 16, 2014 .
  22. ↑ Junk Real Estate: New Hope for Investors. In: Focus Online. March 20, 2007, accessed December 16, 2014 .
  23. ↑ Marcus Preu: Cheated Badenia customers hope for a breakthrough. In: welt.de. March 20, 2007, accessed November 29, 2014 . http://www.tagesspiegel.de/wirtschaft/immobilien/urteile/1219294.html