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Other features of the special legal person

For international sskjuritizatsionnoj experts presence in all contracts concluded by the special legal body with investors and other participants, positions about «restriction collecting» (limitation of recourse) and «neinitsiirovanii bankruptcies» (nor.-petition) is characteristic.

Position about «collecting restriction» means, that each creditor agrees with that, chgo it can turn collecting only on the hardware the actives belonging to the special legal body (and only within their cost) which serve as maintenance of obligations of the special legal person concerning the given creditor. Position about «neinitsiirovanii» means bankruptcies, that creditors of the special legal person soglashajut sja not initsiirovat (and not to support) procedure of bankruptcy special legal лица104 until it

Obligations but to nanosecond securities will be completely исполнены103. Both these positions are important for normal functioning of structure of the transaction throughout all term on which securities are issued, therefore it is very important, that the applicable law or supposed possibility of contractual designing of such positions, or contained similar legislative garshggii transaction functioning. About questions of use of such contractual designs by the Russian right to be spoken in section 5 "§5 chapters II and section 4.2$4 of the chapter III.

For the transaction sekjuritizatsii special value has in what competence of body there is a decision-making on carrying out of procedure of bankruptcy. Usually the question connected with bankruptcy, is in the competence of board of directors of the special legal person. Members of such body are appointed the participant of the special legal person. If the same persons participate in controls as participant, and the special legal person, go in this sense such a lead (director) are dependent. In case of bankruptcy of the basic legal person dependent directors, being guided by its interests, mo§ut to make the decision on bankruptcy of the affiliated legal person (even if it executes obligations before zladsltsami chain papers) with tselyo of reception of the means which have remained after end of bankruptcy and liquidation. If the affiliated legal body has at least one independent director (which participation in voting but to such question should be obligatory and which is obliged to consider interests of owners of securities), the risk of decision-making on carrying out of procedure of bankruptcy decreases. Therefore the international rating agencies make the demand about presence as a part of light of directors of the special legal

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Persons independent директора106.

Rating agency Standard and Poor’s defines the independent director as follows: as properly appointed member of board of directors of the legal person who at the moment of appointment was not, or in a current of previous five years was not (і) the direct or indirect proprietor or zygodopriobretagelem such legal person or connected with it lin: (іі) the creditor, raboznikom. Official lipom, the director, the manager, the party under the contract with such legal body or with the person connected with it; (ііі) the person, who carries out the control (directly, indirectly or otherwise) concerning the special legal person or the person connected with it, or its creditor, the worker, the official, the director, the manager, the party under the contract with the special legal body or with the person connected with ним107.

The independent director should play a key role in management of the special legal body, in particular, in the decision of the questions connected with its bankruptcy. In those states where to start voluntary procedure of bankruptcy not there is enough acceptance of the corresponding decision, and it is necessary also observance of certain objective criterion (for example, default of obligations in a current of certain term or presence of the certain size of debts), presence in board of directors of the independent director is the important element of the analysis of degree of security of the legal person from bankruptcy.

One of duties which incurs the special legal body - a duty to keep the independent status from any person (first of all from the original ora). Presence of such duty has for an object

w Standard AND Poor’s CH Legal Crieria for European Structured Finance Transactions, 2ОЛ5 Standard AND Poor’s H Legal Crixria for European Structured Finance Transactions, 2035.

To minimise risk of a recognition of the special legal person affiliated company, for example, originatora. In case of such recognition, bankruptcy of the basic company can negatively be reflected in activity of the special legal person. A spectrum of possible negative consequences and what duties should take up the special legal body, depends on an applicable law. Here it is necessary to result as an example a number of duties io to preservation of the independent status:

Economic activities realisation on its own behalf; independent responsibility on the debts;

Prevention of mixture of actives with actives of any other person (except for gathering of money resources by the serving organisation with use of its accounts);

Observance of all requirements and procedures on the management, provided by constituent instruments;

Not to take up obligations on debts of the third parties and not to guarantee execution of obligations for any persons;

Nanosecond to pawn property in favour of the third parties (not participating in the transaction sekjuritizatsii) and not to give a loan to any persons (differently kah in an order provided by documents io to the transaction);

To keep the size of the capital, dosgatochnyj for realisation of the activity provided by the transaction.

One of widespread restrictions is restriction on acceptance by the special legal body of additional obligations ’ 08, for example, credit attraction. The given restriction is directed on minimisation of risk of the beginning of procedure of the bankruptcy initiated by creditors on additional

objazagslstpam. In the presence of such risk the special legal body should refrain from assumption of the additional obligations which have been not connected with the transaction sekjuritizatsii if only such additional obligations do not answer following characteristics: () are completely subordinirovannymi in relation to the obligations of the special legal person accepted within the limits of the transaction sekjuritizatsii (it including means, that in case of bankruptcy such creditors will receive satisfaction only after full payment of percent and the basic debt to investors and other parties of the transaction sekjuritizatsii); Or () to additional obligations the same rating is appropriated, as well as to the obligations (securities) which have been let out and process sekjuritizatsii (in both cases in the presence of contractual positions that creditors under such additional obligations (і) cannot turn collecting ka actives of the special legal person differently as within the sums which remain after calculations with investors and (іі) do not receive the incorporeal right against the special legal person in case of incomplete satisfaction of-such creditors at the expense of the property which has remained after satisfaction of requirements of investors) 109. In both cases creditors under additional obligations have less than economic motivations for initiation of procedure of bankruptcy. The applicable law should allow, on the one hand, is effective to limit the special legal body in possibility of acceptance of additional obligations, and also, there, where acceptance of such additional obligations is required, to give possibility subordinirovat an additional debt in relation to the core.

Further, as the general rule, the international rating agencies demand, that the special legal body gave actives in quality

Maintenance to owners valuable бумаг110. Granting of such maintenance reduces desire of the shareholder of the special legal person, and also other creditors of the special legal person to address with the requirement about procedure carrying out bankrotsgva as the specified persons will receive satisfaction only after payment of all sums which are due to owners of securities as provided creditors.

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A source: Gortinsky Ekaterina Igorevna. the LEGAL STATUS of SPECIAL LEGAL BODIES In TRANSACTIONS SEKJURITIZATSII of ACTIVES. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2010

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