Issuer / Publisher: mzs Rechtsanwälte, sworn auditor Meyer zu Schwabedissen und Partner mbB / Key word(s): Loan
Eyemaxx Real Estate AG 2020/25 (WKN A289PZ / ISIN DE000A289PZ4): Announcement of the common representative
03.02.2023 / 16:15 CET/EST
The issuer / publisher is responsible for the content of the notification.
The issuer’s insolvency administrators have always expressed considerable doubts that certain securities on properties and super-aedificates located in Austria had been effectively provided. There would be a case of inadmissible return of deposits. As the elected joint representative of the bondholders, I would like to inform you that I have received a legal notice from the Austrian lawyer Dr. Kofler from Innsbruck, who came to the conclusion that, based on the information available, the legal opinion of the issuer’s insolvency administrator, Dr. Ulla Reisch, cannot be confirmed. Even if there is an inadmissible return of a deposit, it is questionable whether this can be used against the bondholders. dr Kofler is a proven expert in the law on the return of deposits (see here). For the time being, I therefore assume that these securities are all effectively in favor of the bondholders. To date, the insolvency administration has not presented any reasons that we can understand for its assertion. If the insolvency administrator sticks to her opinion, the question of the legally effective provision of the securities will have to be clarified in court, which may take several years before a final decision is reached. Because of this perspective, I have made an offer to split the proceeds from the sale of certain properties at a ratio of approximately 85:15. This corresponds to a discount of around €2.33 million. The insolvency administration, on the other hand, has brought up a non-binding 50:50 split.
The other securities are not in dispute. This means that the creditors are entitled to collateral with a nominal value of €22.194 million less the settlement offer of €2.33 million. That would correspond to a (nominal, mind you) coverage ratio of around 90%. It is of course unclear whether the value of the real estate actually covers the nominal value of the collateral.
If the creditors should lose all legal proceedings regarding the issue of the effective provision of the relevant collateral, the collateral value of the remaining collateral would be €8.357 million. From my point of view, there should also be an Austrian real estate security in the amount of €4.170 million, which is formally in dispute with the insolvency administration, but according to the local opinion there are not the slightest arguments that the security should be ineffective.
Background to the argument of lawyer Dr. Kofler is essentially that even if there are objective reasons for assuming a return of contributions, the subjective side, that is, gross negligence on the part of the bondholders, is likely to be missing. The prerequisite for this would be that the bondholders or the trustee working for the creditors, a lawyer and notary in Berlin, should have recognized that the securities were provided by the issuer’s subsidiaries without consideration or without commercial justification. Such duties to inquire appear particularly questionable because the security was provided with the involvement of Austrian notaries. Also, I have a statement from Dr. Müller, the former board member of the issuer, according to which objectively there was no case for a return of contributions because so-called liability reimbursements had been agreed. And finally, the economic logic speaks against the fact that the subsidiaries should not have received anything in return. Since all (with the exception of the property in Graz) real estate purchases are not bank-financed, the necessary funds can only have come from the group. In any case, the insolvency administration has not yet given any explanation as to how the purchases are supposed to have been otherwise financed. Ultimately, the question of whether there is an inadmissible return of contributions and whether the bondholders can be held against is a legal question that is decided by the Austrian courts on a case-by-case basis.
The issuer does not consider the question of the effectiveness of the collateral to be subject to ad hoc information requirements. I disagree. Therefore, in my capacity as elected joint representative, I am publishing this information.
Dusseldorf, February 2nd, 2023
Lawyer Gustav Meyer zu Schwabedissen
as elected joint representative for the bond Eyemaxx Real Estate AG 5.5% bond 2020/25
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The issuer / publisher is responsible for the content of the notification.
