In 2006 and 2007, the debtor concluded a use agreement and a loan agreement with the defendant`s predecessors. Neither the defendant nor its predecessors are or have been shareholders in the debtor. The contracts were awarded to the defendant who had received interest payments during the period from January to March 2008. Subsequently, the Federal Court of Justice defines the legal conditions that a qualified supplementary agreement must meet, in order to avoid over-indebtedness of a legal person. The Court confirms that the legal provisions in force until 1 November 2008, the date of entry into force of the Modernised Law of Obligations (MoMiG), also apply to subordinate agreements concluded under the new legal provisions. Therefore, the subordination agreement must cover both the period before and after the commencement of insolvency proceedings. In addition, it should be clarified that the claims of subordinated creditors can only be settled as follows: outside the insolvency proceedings, only from any vacant assets, during the insolvency proceedings, only after the claims of creditors who have not agreed on a subordination of their claims. As regards the so-called “depth” of performance, the Federal Court of Justice considers that it is sufficient for the creditor to declare payment of claims under Article 39 Z§ 1, 5(5) of the insO. It is no longer necessary to explain that the claims have the same rank as the rights to repayment of capital contributions from the debtor`s shareholders. If the sub-egeism agreement is intended to avoid the debtor`s over-indebtedness, he is obliged to conclude such an agreement indefinitely.
The Tribunal also confirms that subordination concerns not only the principal claim, but also interest payments and other ancillary claims. In addition, the Federal Court of Justice finds that payments made during the term of the subordinated contract may be recovered free of charge in return, in accordance with Article 134 of the INSO. The term “free” in the context of InsO must be understood in a broad sense and can be confirmed if the reduction in assets is not offset by a corresponding increase in the creditor`s assets. The Federal Court of Justice confirms this in the event of payment without legal grounds. Possible termination extends to payments made during a period of four years prior to the commencement of insolvency proceedings and is also possible if claims for undue enrichment are excluded. The signed agreement must be confirmed by a notary and entered in the official registers of the county in order to be enforceable.. . .