Q & A HETA: MB III
The expert opinion showed the following: as HETA currently has a high stock in liquid funds and due to the fact that further liquidation revenues will be generated by the end of the liquidation horizon, HETA’s analyzed assets as of March 1st, 2015 (utilizing positive market opportunities) have been liquidated much better than originally planned. Therefore the quote of the debt haircut had to be written up.
There is no immediate impact to be derived from the FMA’s decision, as the rate fixed by the emergency administrative decision is valid for HETA’s liabilities, which means that its liabilities continue to exist to this extent. In so far as claims against HETA were sold to a third party, the increase of the rate would only become effective, if explicitly agreed between the buyer and the seller.
According to the BASAG’s code of practice, the authority is obliged to open preliminary proceedings three months after the publication of this emergency administrative decision at the latest and also issue an administrative decision in relation to the challenge procedure on its basis.
Further evaluation by experts has shown, that HETA’s analyzed assets as of March 1st, 2015 (utilizing positive market opportunities) were liquidated much better than the outcome of the last expert opinion in 2017 showed.
Following the expertise on hand it does not seem likely that subordination creditors will obtain satisfaction (not even partly). Only in the scenario that HETA’s liquidation of existing residual assets would show excess revaluation above all calculations and forecasts and thus leading to full satisfaction of all creditors of eligible liabilities, subsequently any existing residual assets would be subject to distribution towards subordination creditors.
The maturity of all eligible liabilities on December 31, 2023, resp. the resolution to liquidate remains unchanged. Even though HETA’s liquidation turned out better than expected, the assumption is that neither all of HETA’s assets will be fully liquidated at an earlier point in time nor that all ongoing trials will be finalized by December 31, 2023. Therefore the maturity date remains unaltered.
HETA entirely belongs to the Federal Republic of Austria. However, following the administrative decision in relation to the challenge procedure as of May 2nd, 2017, the Financial Market Authority (FMA) took over HETA’s regulation and handles all voting- as well as administrative rights for the owner ever since.
The new emergency administrative decision has no impact on any pending court proceedings. These are to be held respectively following the applicable procedural guidelines as well as taking FMA’s decisions into account.
A liquidation comparison in the context of the expert’s report to reassess the rate has been carried out again. It shows that the propitiousness of a resolution over a liquidation procedure still exists – following latest calculations the fictional insolvency rate amounts to 42,16 %. Therefore there is a satisfactory rate in resolution of 85,54 %, which is higher than the insolvency rate.
Provided that the statutory requirements are available, HETA can decide further intermediate distribution under private law. In any case the amount to be distributed must be assigned in a way that HETA’s resolution, the continued business operation as well as the satisfaction of the creditors is not in jeopardy in future. HETA must keep hold of a sufficient buffer in liquid funds to not put the resolution at risk.