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Saluti a tutti
Dear Sir or Madam,
Thank you for sending through the deposit account statement. Please find attached the status report of Air Berlin (in German language only). Please find below a summary of the report:
Assets: The insolvency assets are € 10.114.756,17 as of 20 June 2022. The insolvency administrator currently assumes that no interim distributions will be made.
Intercompany claims: Claims against affiliated companies totalling around € 355 million are being pursued. All three debtors are in insolvency.
Tax claims: In the reporting period, tax refunds of around € 100,000 were received. In addition, the insolvency administrator expects a tax refund claim against the State of Berlin in the amount of at least € 7.4 million plus interest. The State of Berlin may be able to offset the main claim against liability claims. The offsetting situation depends to a large extent on a case currently pending before the European Court of Justice (ECJ) on the consolidated tax group for VAT purposes. No progress in the matter is to be expected before the ECJ reaches a decision.
Liability claims against shareholders: According to the insolvency administrator, due to Brexit, Clearstream Banking AG, as the holder of the registered shares of Air Berlin PLC, may now be considered a personally liable shareholder of Air Berlin PLC under German corporate law. The resulting liability action seeks payment of approximately € 497.8 million and a declaration that Clearstream Banking AG is liable for further liabilities of Air Berlin PLC. No date has yet been set for the oral hearing.
Claims against Etihad P.J.S.C. under the Comfort Letter: The claims against Etihad Airways P.J.S.C. under the Comfort Letter have been brought before the Berlin District Court;. Etihad Airways P.J.S.C. has subsequently filed a negative declaratory judgment action in the High Court of the United Kingdom with the aim of dragging the case to dispute before the High Court in London with reference to an alleged agreement on jurisdiction. Etihad Airways P.J.S.C. applied to the Berlin Regional Court for a stay of proceedings pending a decision by the High Court on its jurisdiction. By order of 13 May 2020, the Berlin Regional Court stayed the proceedings in accordance with the application. The Federal Supreme Court confirmed the decision to stay the proceedings by order of 15 June 2021 after an appeal had been filed.
The High Court confirmed its jurisdiction over the negative declaratory action by judgment of 18 November 2019. The appeal to the Court of Appeal was unsuccessful, as was the permission to appeal to the Supreme Court against the appeal decision. With its decision from 13 May 2020, the Berlin Regional Court suspended the proceedings pending a decision by the High Court. Upon a respective appeal, the Federal Supreme Court confirmed the suspension on 15 June 2021.
The litigation is not proceeding; settlement negotiations are currently taking place with Etihad Airways P.J.S.C. regarding termination and costs.
Claw-back claims against Etihad P.J.S.C.: Etihad Airways P.J.S.C., as a shareholder, had received interest payments on loans granted to the debtor and guarantee fees for third-party loans granted to the debtor within the last year before the insolvency filing. A claw-back action is pending before the Berlin Regional Court. After an oral hearing, the Regional Court issued an evidentiary ruling on 4 April 2021 and commissioned an expert. The further progress of the legal dispute remains to be seen.
Claims against the managing director: The insolvency administrator held the former managing director liable in the amount of approximately € 245 million because the company had already been over-indebted since May 2017. The action has been filed with the Berlin Regional Court.
Please note that the report may contain information whose use and/or disclosure may be regulated and/or restricted as MNPI within the meaning of Art. 14 of the regulation (EU) no. 596/2014 on market abuse (market abuse regulation) or other applicable laws. KEOS will not assess whether or not the report in fact contains any such information or sweep the report from (potential) such information. As soon as the insolvency administrator gives a further update for the creditors, KEOS will inform registered bondholders.
Please do not hesitate to contact us if you have any further questions.
Yours sincerely / Kind regards,
KEOS GbR
c/o One Square Advisors GmbH
Theatinerstr. 36
80333 Munich
Fax +49 89 15 98 22
E-mail
[email protected]
Web
www.onesquareadvisors.com
