Positive statement
In the banking sector , a positive declaration is understood to mean the obligation to be submitted by the borrower in a credit agreement to provide a credit institution with certain loan collateral if the prerequisites or events described in the credit agreement have occurred. The positive declaration is one of the covenants .
General
Positive and negative declarations have in common that the debtor has free, unencumbered assets and the creditor trusts in the continuation of this asset situation in the case of blank loans . While negative declarations aim in particular that the debtor has to refrain from certain actions in the future that may reduce his assets, for example, borrowers undertake to undertake a specifically designated legal act, such as the provision of loan collateral, in the case of positive declarations. Both are not loan collateral, since the creditor is denied access to assets or liable third parties. The transition from negative to positive declaration is fluid, so that the positive clause can also be part of a negative clause.
Unlike the negative declaration, the positive declaration is not one of the core components of the templates for (international) credit agreements developed by the LMA .
Positive declaration for financial covenants
Unsecured loans are granted in particular with regard to the unencumbered assets of the borrower and his creditworthiness . To ensure that this status quo is maintained during the term of the loan, two instruments are used as covenants. On the one hand, the negative declaration ensures that later creditors receive the same rank and that the borrower is absolutely prohibited from securing future debts. On the other hand, in the positive clause, the borrower undertakes to provide the bank with certain loan collateral from his assets if his creditworthiness deteriorates.
In order to make creditworthiness fluctuations measurable and to objectify them, they can be linked to certain financial covenants . The rating of a rating agency , a certain level of debt or the equity ratio of a company are particularly suitable for this. If these indicators - developed from the borrower's annual financial statements - deteriorate below a precisely defined threshold, this event is regarded as a trigger for the application of the positive declaration. This event then automatically triggers the obligation of the borrower to order the specifically defined loan collateral in favor of the bank, i.e. without further legal action. If the equity ratio falls below the contractually stipulated threshold, the claim to collateral arises at the same time.
Right of supplementary collateral from the terms and conditions
The terms and conditions can be seen in para. 13 General Terms and Conditions banks / no. 22 No. 1 AGB-Sparkassen a claim for additional collateral, according to which the creation or strengthening of loan collateral becomes necessary due to a change in the customer's risk situation. This right of additional collateral is a type of positive declaration that should apply to all customer relationships for which no positive credit agreements have been agreed. According to the prevailing opinion, this claim resulting from the General Terms and Conditions is not directed from the outset to a specific security, but generally to the provision of bank-like security, so that the debtor has a free choice among various assets. This is what is known as incongruent cover. Such incongruent loan collateral can be challenged under insolvency law and must be surrendered by the credit institution concerned if the borrower is insolvent . This means that the claim for additional collateral and the collateral ordered are only legally correct as long as the customer does not become insolvent.
Positive declaration in bankruptcy
The loan collateral that has already been specifically ordered in a loan agreement generally represents congruent cover and is therefore "insolvency-proof". In the insolvency of the borrower, the creditor has the right to “separate satisfaction” according to Section 50 InsO, with the result that he receives the proceeds from the realization of the collateral. The loan collateral ordered on the basis of a positive declaration was only agreed subsequently, while no loan collateral was initially provided in the associated loan agreement. The time delay in the subsequent creation of collateral can be interpreted as an indication of incongruent coverage, especially since the events triggering this collateral order are based on creditworthiness problems that have occurred.
In order for this not to happen, the obligation resulting from a positive clause must exist in a very specific security. The bank's claim must be based on a specific security to be ordered. If there are several assets, the positive declaration must precisely identify and describe the collateral to be ordered later so that it can be clearly identified and distinguished from the other assets. The security must be specified in such a way that it is clear from the outset on which of several properties it is to be established and what rank it will occupy here. Then there is usually a congruent cover. The receipt of an incongruent cover , however, is considered to be a strong evidence of the bank's knowledge of the intention to disadvantage creditors. Subsequent security resulting from a positive declaration and obtained by way of foreclosure by the obligee is incongruent security.
