Legal nature of gap replenishment and liquidity support letters

1. Forms of balance replenishment or liquidity support

(1) Take several announcements of listed companies as examples:

1. About Rhine Real Estate Announcement of the wholly-owned subsidiary Nanjing Laiyinda Real Estate Co., Ltd. providing balance replenishment obligations and guarantees (No. 2010-049): If Nanjing Laiyinda does not fully pay the exercise deposit and exercise price, the company will be responsible for the unpaid balance. Provide balance replenishment obligations for Nanjing Laiyinda?

2. Announcement of World Union Bank on providing guarantee to Shenzhen World Union Small Loan Co., Ltd. (No.: 2014-073):

The company agrees to provide and bear the obligation to make up the difference for the intermediate distribution income and investment principal that Ganzhou Yuanfa should receive under the other agreements.

3. CCRE Real Estate has to enter into a liquidity support agreement for disclosed transactions:

When the difference payment institution is unable to perform or fully perform the obligations under the difference payment and operational liquidity support commitment letter When responsible, CCRE China must perform its obligations under the liquidity support agreement and pay the relevant balance to the liquidity support supervision account.

(2) Litigation Cases

1. Beijing No. 2 Intermediate People’s Court (2014) No. 2 Zhong Min (Shang) Chu Zi No. 11032 Judgment:

" Both the "Cooperation Framework Agreement" and the "Fund Trust Contract" involved in the case stipulate that Jingu Trust Company has the right to decide on its own to extend the term of the current trust plan; during the extension period, the guarantee company will fulfill its commitment to repay the principal and interest of the loan first. If the trust fees (including trust remuneration) paid have not been paid in full, the secondary investor (i.e. Zhejiang Youxuan Company) shall bear the obligation to make up the difference. ”

2. Shanghai Pudong People’s Court (2015) Pudong. Minyi (Min) Chuzi No. 30542 Judgment:

“The defendant issued an irrevocable letter of guarantee to the plaintiff, promising to ensure the safety of the principal, and if its income does not reach the corresponding after-tax expected income in the contract Regardless of the situation, the defendant shall be responsible for making up the balance. Now that the time limit for payment guarantee by the defendant has expired, the defendant shall fulfill its payment responsibility. ”

2. The nature of the balance making up or liquidity support measures. And discuss

(1) Constituting guarantee clauses

According to the judgment of the Supreme Court, if the intention of the assumer to assume the debt has a relatively obvious guarantee meaning, it can be deemed as a guarantee (Supreme Court People's Court (2005) Civil Judgment No. 200). According to Article 6 of the "Guarantee Law": "The term "guarantee" as used in this Law refers to the agreement between the guarantor and the creditor that when the debtor fails to perform the debt, the guarantor will perform the debt or assume liability in accordance with the agreement."

Judgment No. 30542 of the Pudong Court, Judgment No. 11032 of the Beijing No. 2 Intermediate People's Court, and announcements from RWE and World Bank, it can be seen that in the relevant cases, the obligor to make up the balance provided an obvious guarantee commitment, that is, it was clearly agreed that when the creditor fails to obtain the agreed repayment from the debtor, In this case, the obligor guarantees to repay the balance of the unpaid debt.

(2) Concurrent debt obligations

According to Article 84 of the "Contract Law": "If the debtor transfers all or part of its contractual obligations to a third party, it shall be approved by the creditor. Agree. "According to the provisions of this article, the debt transfer can be a complete transfer or a partial transfer. When all debts are transferred, the original debtor has broken away from the original contractual relationship, and a third party assumes the contractual obligations on behalf of the debtor. Academic circles call this exempted debt assumption, which means that the debtor transfers all of its debts with the consent of the creditor. Transferred to a third party, the debtor no longer bears the responsibility to perform the debt. In the case of partial transfer of debt, the debtor does not break away from the original creditor-debt relationship, but joins a third party and the debtor *** to jointly bear the debt to the creditor. Therefore, academic circles call this method concurrent debt assumption, that is, It means that a third party voluntarily joins the debtor to perform obligations to the creditor, and the debtor's liability is not exempted.

If the creditor and the obligor of balance replenishment or liquidity support have clarified the relevant matters through an agreement, there will not be a big problem; but if the obligor makes a unilateral commitment and the creditor has no clear intention to endorse it, it may There is an issue of uncertainty about effectiveness.

That is, if the commitment to bear the debt is made before the debtor defaults, then whether the debtor defaults and the amount of failure to repay is uncertain, that is, whether the debt is transferred and how much is transferred is not determined. In this case, if the debt is transferred without prior According to the agreement, after a debt default occurs, the obligor reneges and considers the transfer invalid on the grounds that the creditor did not express his consent, resulting in uncertainty in the effectiveness of the debt assumption.