DIRECTIVE 2002/47/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 6 June 2002 on financial collateral arrangements. Reference

Transcription

1 2 A: 1 SUBJECT MATTER AND SCOPE This Dirctiv lays down a Community rgim applicabl to financial collatral arrangmnts which satisfy th rquirmnts st out in paragraphs 2 and 5 and to financial collatral in accordanc with th conditions st out in paragraphs 4 and 5. N Rf. Ars(2014) /01/2014 1

2 2 A: 1 P: 2 N: (a) Th collatral takr and th collatral providr must ach blong to on of th following catgoris: (a) a public authority (xcluding publicly guarantd undrtakings unlss thy fall undr points (b) to ()) including: (i) public sctor bodis of Mmbr Stats chargd with or intrvning in th managmnt of public dbt, and (ii) public sctor bodis of Mmbr Stats authorisd to hold accounts for customrs; N LPA A: 314, 2 (1) Encumbranc of a scurity or a financial claim with th right of scurity or transfr of th scurity or financial claim in ordr to provid collatral is dmd to b financial collatral if th collatral providr and th collatral takr ach blong to on of th following catgoris: 1) a prson spcifid in clauss 6 (2) 1)-7) of th Scuritis Markt Act; 2) a prson or organisation spcifid in paragraph 2 (b) of 1 of th of th Europan Parliamnt and Council on financial collatral arrangmnts (OJ L 1168, , p ); 3) an oprator of a scuritis sttlmnt systm spcifid in subsction 214 (2) of th Scuritis Markt Act; 4) anothr lgal prson similar to th prsons spcifid in clauss 1)-3) of this subsction providd that th prson has th right to b a collatral providr or a collatral takr according to lgislation of a Contracting Party to th EEA or th EU. (2) Encumbranc of a scurity or a financial claim with th right of scurity or transfr of th scurity or financial claim in ordr to provid collatral is dmd to b financial collatral also if th collatral providr or th collatral takr is a lgal prson and th countrparty to th transaction is a prson spcifid in clauss (1) 1)- 4) of this sction. 2

3 2 A: 1 P: 2 N: (b) (b) a cntral bank, th Europan Cntral Bank, th Bank for Intrnational Sttlmnts, a multilatral dvlopmnt bank as dfind in 1(19) of Dirctiv 2000/12/EC of th Europan Parliamnt and of th Council of 20 March 2000 rlating to th taking up and pursuit of th businss of crdit institutions(9), th Intrnational Montary Fund and th Europan Invstmnt Bank; N LPA A: 314 N: 2 (1) Encumbranc of a scurity or a financial claim with th right of scurity or transfr of th scurity or financial claim in ordr to provid collatral is dmd to b financial collatral if th collatral providr and th collatral takr ach blong to on of th following catgoris: 2) a prson or organisation spcifid in paragraph 2 (b) of 1 of th of th Europan Parliamnt and Council on financial collatral arrangmnts (OJ L 1168, , p ); 3

4 2 A: 1 P: 2 N: (c) (c) a financial institution subjct to prudntial suprvision including: (i) a crdit institution as dfind in 1(1) of Dirctiv 2000/12/EC, including th institutions listd in 2(3) of that Dirctiv; (ii) an invstmnt firm as dfind in 1(2) of Council Dirctiv 93/22/EEC of 10 May 1993 on invstmnt srvics in th scuritis fild(10); (iii) a financial institution as dfind in 1(5) of Dirctiv 2000/12/EC; (iv) an insuranc undrtaking as dfind in 1(a) of Council Dirctiv 92/49/EEC of 18 Jun 1992 on th coordination of laws, rgulations and administrativ provisions rlating to dirct insuranc othr than lif assuranc(11) and a lif assuranc undrtaking as dfind in 1(a) of Council Dirctiv 92/96/EEC of 10 Novmbr 1992 on th coordination of laws, rgulations and administrativ provisions rlating to dirct lif assuranc(12); (v) an undrtaking for collctiv invstmnt in transfrabl scuritis (UCITS) as dfind in 1(2) of Council Dirctiv 85/611/EEC of 20 Dcmbr 1985 on th coordination of laws, rgulations and administrativ provisions rlating to undrtakings for collctiv N LPA SMA A: 314 N: 1 A: 6 P: 2 N: 1-8 (1) Encumbranc of a scurity or a financial claim with th right of scurity or transfr of th scurity or financial claim in ordr to provid collatral is dmd to b financial collatral if th collatral providr and th collatral takr ach blong to on of th following catgoris: 1) a prson spcifid in clauss 6 (2) 1)-7) of th Scuritis Markt Act (RT I 2001, 89, 532; 2002, 23, 131; 63, 387; 102, 600; 105, 612; 2003, 81, 544; 88, 591); (2) For th purposs of this Act, ach of th following is a qualifid invstor: 1) a crdit institution, invstmnt firm, managmnt company, invstmnt fund, insuranc undrtaking or anothr prson subjct to financial suprvision of Estonia or a forign stat; 2) th Rpublic of Estonia or a forign stat, or a local or rgional govrnmnt or th cntral bank of Estonia or a forign stat; 3) an intrnational organisation, including th Intrnational Montary Fund, th Europan Cntral Bank, th Europan Invstmnt Bank; 4) a financial institution of Estonia or a forign stat whos only businss activity is invstmnt in scuritis; 4

5 2 Invstmnt in transfrabl scuritis (UCITS)(13); (vi) a managmnt company as dfind in 1a(2) of Dirctiv 85/611/EEC; 5) a small or mdium-sizd ntrpris providd for in subsction (3) of this sction (hrinaftr SME) which according to th provisions of 237 of this Act is ntrd in th list of th Financial Suprvision Authority (hrinaftr Suprvision Authority); 6) a company of Estonia or a forign stat which is not a SME; 7) a natural prson who mts th rquirmnts providd for in subsction (4) of this sction and who according to th provisions of 237 of this Act is ntrd in th list of th Suprvision Authority; 8) a SME of a Contracting Party to th EEA Agrmnt (hrinaftr Contracting Stat) or a natural prson who is rgistrd in th Contracting Stat as a qualifid invstor. 5

6 2 A: 1 P: 2 N: (d) (d) a cntral countrparty, sttlmnt agnt or claring hous, as dfind rspctivly in 2(c), (d) and () of Dirctiv 98/26/EC, including similar institutions rgulatd undr national law acting in th futurs, options and drivativs markts to th xtnt not covrd by that Dirctiv, and a prson, othr than a natural prson, who acts in a trust or rprsntativ capacity on bhalf of any on or mor prsons that includs any bondholdrs or holdrs of othr forms of scuritisd dbt or any institution as dfind in points (a) to (d); N LPA SMA A: 314 N: 3 A: 214 (1) Encumbranc of a scurity or a financial claim with th right of scurity or transfr of th scurity or financial claim in ordr to provid collatral is dmd to b financial collatral if th collatral providr and th collatral takr ach blong to on of th following catgoris: 3) an oprator of a scuritis sttlmnt systm spcifid in subsction 214 (2) of th Scuritis Markt Act; (1)A systm oprator is a prson who, in accordanc with th provisions of th systm ruls and contracts ntrd into on th basis throf, arrangs for th xcution of transfr ordrs and, dpnding on th arrangmnt of th systm, also organiss th sttlmnt of claims btwn mmbrs of th systm. (2) Th following may act as a systm oprator: 1) Th Bank of Estonia; 2) prson to whom th Suprvision Authority has issud a rlvant activity licnc; (3) ach systm shall hav only on systm oprator. 6

7 2 A: 1 P: 2 N: () A: 1 P: 3 S: 1 A: 1 P: 3 S: 2 A: 1 P: 4 N: (a) () a prson othr than a natural prson, including unincorporatd firms and partnrships, providd that th othr party is an institution as dfind in points (a) to (d). Mmbr Stats may xclud from th scop of this Dirctiv financial collatral arrangmnts whr on of th partis is a prson mntiond in paragraph 2(). If thy mak us of this option Mmbr Stats shall inform th Commission which shall inform th othr Mmbr Stats throf. (a) Th financial collatral to b providd must consist of cash or financial instrumnts. O LPA A: 314 P: 2 (2) Encumbranc of a scurity or a financial claim with th right of scurity or transfr of th scurity or financial claim in ordr to provid collatral is dmd to b financial collatral also if th collatral providr or th collatral takr is a lgal prson and th countrparty to th transaction is a prson spcifid in clauss (1) 1)- 4) of this sction. D Estonia has not implmntd th namd provision. n.a N LPA A: 314 (1) Encumbranc of a scurity or a financial claim with th right of scurity or transfr of th scurity or financial claim in ordr to provid collatral is dmd to b financial collatral if th collatral providr and th collatral takr ach blong to on of th following catgoris: /-/ 7

8 2 A: 1 P: 4 N: (b) A: 1 P: 5 S: 1 (b) Mmbr Stats may xclud from th scop of this Dirctiv financial collatral consisting of th collatral providr's own shars, shars in affiliatd undrtakings within th maning of svnth Council Dirctiv 83/349/EEC of 13 Jun 1983 on consolidatd accounts(14), and shars in undrtakings whos xclusiv purpos is to own mans of production that ar ssntial for th collatral providr's businss or to own ral proprty. This Dirctiv applis to financial collatral onc it has bn providd and if that provision can b vidncd in writing. O Estonia has not implmntd th namd provision. N LPA A: 315 P: 2 (2 1 ) A financial collatral arrangmnt shall b ntrd into in a format which can b rproducd in writing. A: 1 P: 5 S: 2 ja 3 Th vidncing of th provision of financial collatral must allow for th idntification of th financial collatral to which it applis. For this purpos, it is sufficint to prov that th book ntry scuritis collatral has bn crditd to, or forms a crdit in, th rlvant account and that th cash collatral has bn crditd to, or forms a crdit in, a dsignatd account. N Hr th gnral principls of privat law apply: th valid contract, indpndnt from its form, has always to rfr to th objct of th contract. Th scond sntnc of th provision: it is th qustion of construing th contract and thrfor thr is no nd to rgulat it this kind of xplicit spcial provision. 8

9 2 A: 1 P: 5 S: 4 A: 2 N: (a) A: 2 N: (b) This Dirctiv applis to financial collatral arrangmnts if that arrangmnt can b vidncd in writing or in a lgally quivalnt mannr. DEFINITIONS For th purpos of this Dirctiv: (a) "financial collatral arrangmnt" mans a titl transfr financial collatral arrangmnt or a scurity financial collatral arrangmnt whthr or not ths ar covrd by a mastr agrmnt or gnral trms and conditions; (b) "titl transfr financial collatral arrangmnt" mans an arrangmnt, including rpurchas agrmnts, undr which a collatral providr transfrs full ownrship of financial collatral to a collatral takr for th purpos of scuring or othrwis covring th prformanc of rlvant financial obligations; N CCA A: 80, 2 N LPA A: 314 N LPA A: 314 (1) A transaction in lctronic format is dmd to b qual to a transaction in writtn format unlss othrwis providd by law. (2) In ordr to comply with th rquirmnts for th lctronic format, a transaction shall: 1) b ntrd into in a format nabling rpatd rproduction and 2) contain th nams of th prsons ntring into th transaction and 3) b lctronically signd by th prsons ntring into th transaction. Encumbranc of a scurity or a financial claim with th right of scurity or transfr of th scurity or financial claim in ordr to provid collatral is dmd to b financial collatral if th collatral providr and th collatral takr ach blong to on of th following catgoris: Encumbranc of a scurity or a financial claim with th right of scurity or transfr of th scurity or financial claim in ordr to provid collatral is dmd to b financial collatral if th collatral providr and th collatral takr ach blong to on of th following catgoris: 9

10 2 A: 2 N: (c) A: 2 N: (d) (c) "scurity financial collatral arrangmnt" mans an arrangmnt undr which a collatral providr provids financial collatral by way of scurity in favour of, or to, a collatral takr, and whr th full ownrship of th financial collatral rmains with th collatral providr whn th scurity right is stablishd; (d) "cash" mans mony crditd to an account in any currncy, or similar claims for th rpaymnt of mony, such as mony markt dposits; N LPA A: 314 N LOA A: 712 Encumbranc of a scurity or a financial claim with th right of scurity or transfr of th scurity or financial claim in ordr to provid collatral is dmd to b financial collatral if th collatral providr and th collatral takr ach blong to on of th following catgoris: (1) Upon ncumbranc of mony in an account, a dposit or anothr similar financial claim (hrinaftr in this sction cash instrumnts) with financial collatral spcifid in of th Law of Proprty Act, an account managr is rquird to maintain rcords on cash instrumnts in th account such that th cash instrumnts subjct to financial collatral ar sparatd from othr cash instrumnts hld in th account of th pldgor. 10

11 2 A: 2 N: () () "financial instrumnts" mans shars in companis and othr scuritis quivalnt to shars in companis and bonds and othr forms of dbt instrumnts if ths ar ngotiabl on th capital markt, and any othr scuritis which ar normally dalt in and which giv th right to acquir any such shars, bonds or othr scuritis by subscription, purchas or xchang or which giv ris to a cash sttlmnt (xcluding instrumnts of paymnt), including units in collctiv invstmnt undrtakings, mony markt instrumnts and claims rlating to or rights in or in rspct of any of th forgoing; N LPA SMA A: 314 A: 2 (1) Encumbranc of a scurity or a financial claim with th right of scurity or transfr of th scurity or financial claim in ordr to provid collatral is dmd to b financial collatral if th collatral providr and th collatral takr ach blong to on of th following catgoris: (1) For th purposs of this Act, ach of th following is a scurity, vn without a documnt bing issud thrfor: 1) a shar or othr similar tradabl right; 2) a bond, convrtibl scurity or othr tradabl dbt obligation issud, xcpt a scurity rfrrd to in claus 5) of this subsction; 3) a subscription right or othr tradabl right granting th right to acquir scuritis spcifid in claus 1) or 2) of this subsction; 4) an invstmnt fund unit; 5) a dbt obligation issud for a trm of up to on yar, which is usually tradd on th mony markt (mony markt instrumnt); 6) a drivativ instrumnt; 7) a tradabl dpositary rcipt. 11

12 2 (1 1 ) For th purposs of this Act, a convrtibl scurity is: 1) a convrtibl bond within th maning providd for in 241 of th Commrcial Cod (that stats: (1) If prscribd in th articls of association, a public limitd company may issu bonds by a rsolution of th gnral mting, th holdrs of which hav th right to convrt thir bonds to shars (convrtibl bond).) 2) a convrtibl bond which may b xchangd only for a shar of a subsidiary of th issur xchangabl dbt scurity; 3) a bond which grants th right to acquir a shar to b issud (warrant) dbt scurity with warrants. (2) For th purposs of this Act, a drivativ instrumnt is a tradabl scurity xprssing a right or obligation to acquir, xchang or transfr, th undrlying assts of which ar scuritis spcifid in subsction (1) of this sction or th pric of which dpnds dirctly or indirctly on: 1) th stock xchang or markt pric of th scurity; 2) th intrst rat; 3) th scuritis indx; 4) currncy xchang rats; 5) crdit risk and othr risks; 6) th xchang or markt pric of a commodity or prcious mtal. (2 1 ) For th purposs of this Act, an quity scurity is: 12

13 2 1) any scurity spcifid in claus (1) 1) of this sction; 2) any frly transfrabl subscription right, convrtibl scurity or drivativ instrumnt which grants th right to acquir scuritis spcifid in claus (1) 1) of this sction by way of xchang or xrcis of anothr right if th issur of th scurity to b issud is th issur of scuritis which ar th undrlying assts of th scurity or blongs to th consolidation group of th issur. (2 2 ) For th purposs of this Act, a non-quity scurity is any othr scurity not spcifid in subsction (21) of this sction. (2 3 ) For th purposs of this Act, scuritis issud in a continuous or rpatd mannr mans issus on tap or at last two sparat issus of scuritis of a similar typ and/or class in a priod of 12 months. (3) For th purposs of this Act, bills of xchang, chqus and othr mans of paymnt ar not dmd to b scuritis. 13

14 2 A: 2 N: (f) (f) "rlvant financial obligations" mans th obligations which ar scurd by a financial collatral arrangmnt and which giv a right to cash sttlmnt and/or dlivry of financial instrumnts. Rlvant financial obligations may consist of or includ: (i) prsnt or futur, actual or contingnt or prospctiv obligations (including such obligations arising undr a mastr agrmnt or similar arrangmnt); (ii) obligations owd to th collatral takr by a prson othr than th collatral providr; or (iii) obligations of a spcifid class or kind arising from tim to tim; N LPA A: 279 (1) Any claim which can b valuatd in mony may b scurd by a pldg. (2) A conditional claim may also b scurd by a pldg. (3) A futur claim may b scurd by a pldg. (4) Collatral claims rlating to a claim, including intrst and pnaltis, ar also scurd by a pldg unlss othrwis providd by law or a contract. (5) A transaction which is ntrd into aftr th stablishmnt of a pldg and by which th liability of th dbtor of th claim scurd by th pldg is incrasd is not valid with rgard to th ownr of th thing ncumbrd with th pldg, unlss othrwis providd by a contract. In addition th principl of frdom of contract applis: th transfr of rights for whatvr purposs is possibl. 14

15 2 A: 2 N: (g) (g) "book ntry scuritis collatral" mans financial collatral providd undr a financial collatral arrangmnt which consists of financial instrumnts, titl to which is vidncd by ntris in a rgistr or account maintaind by or on bhalf of an intrmdiary; N ECRSA A: 16-4 (1) Th provisions of 16 of this Act apply to th pldging of scuritis on th basis of a financial collatral arrangmnt spcifid in of th Law of Proprty Act in so far as this sction dos not provid othrwis. (2) Th rgistrar shall transfr th scuritis pldgd on th basis of a financial collatral arrangmnt to th spcial scuritis account of th pldgor (hrinaftr pldg account) on th ordr of th account administrator of th pldgor. (3) With rgard to third prsons, scuritis ar dmd to b pldgd on th basis of a financial collatral arrangmnt as of transfr of th scuritis to th scuritis account. With rgard to third prsons, a pldg stablishd on scuritis on th basis of a financial collatral arrangmnt is dmd to xtinguish as of transfr of th scuritis from th scuritis account. (4) Th rgistrar shall mak a notation in th rgistr concrning th pldg, th typ and amount of scuritis pldgd for th bnfit of th pldg and th right of disposal grantd to th pldg by th pldgor in rspct of th pldgd scuritis. 15

16 2 A: 2 N: (h) (h) "rlvant account" mans in rlation to book ntry scuritis collatral which is subjct to a financial collatral arrangmnt, th rgistr or account - which may b maintaind by th collatral takr - in which th ntris ar mad by which that book ntry scuritis collatral is providd to th collatral takr; ECRSA A 16 P 1-4 (1) Th provisions of 16 of this Act apply to th pldging of scuritis on th basis of a financial collatral arrangmnt spcifid in of th Law of Proprty Act in so far as this sction dos not provid othrwis. (2) Th rgistrar shall transfr th scuritis pldgd on th basis of a financial collatral arrangmnt to th spcial scuritis account of th pldgor (hrinaftr pldg account) on th ordr of th account administrator of th pldgor. (3) With rgard to third prsons, scuritis ar dmd to b pldgd on th basis of a financial collatral arrangmnt as of transfr of th scuritis to th scuritis account. With rgard to third prsons, a pldg stablishd on scuritis on th basis of a financial collatral arrangmnt is dmd to xtinguish as of transfr of th scuritis from th scuritis account. (4) Th rgistrar shall mak a notation in th rgistr concrning th pldg, th typ and amount of scuritis pldgd for th bnfit of th pldg and th right of disposal grantd to th pldg by th pldgor in rspct of th pldgd scuritis. 16

17 2 A: 2 N: (i) (i) "quivalnt collatral": (i) in rlation to cash, mans a paymnt of th sam amount and in th sam currncy; (ii) in rlation to financial instrumnts, mans financial instrumnts of th sam issur or dbtor, forming part of th sam issu or class and of th sam nominal amount, currncy and dscription or, whr a financial collatral arrangmnt provids for th transfr of othr assts following th occurrnc of any vnt rlating to or affcting any financial instrumnts providd as financial collatral, thos othr assts; A: 16 P: 2, 3 N LPA A: 314 P: 3 (2) A pldg of scuritis is cratd upon ntry of th pldg in th rgistr. Th rgistrar shall mak a notation concrning pldgd scuritis in a scuritis account in th rgistr. (3) An ordr for th rgistration of a pldg shall contain th following information: 1) th nam and addrss of th pldgor and th pldg; 2) th prsonal idntification cod of th pldgor and th pldg (in th absnc throf, th dat of birth) or, if possibl, th rgistry cod; 3) th typ and amount of th pldgd scuritis and th nam and sat of th issur; 4) othr information providd by th procdur for th maintnanc of th rgistr. (3) If a pldg xrciss th right to dispos of a pldgd objct grantd thrto upon provision of financial collatral, th pldg is rquird to rplac th pldgd objcts with objcts of th sam typ and with th sam valu not latr than aftr th claim scurd by th pldg bcoms collctabl, unlss th partis hav agrd othrwis. 17

18 2 A: 2 N: (j) (j) "winding-up procdings" mans collctiv procdings involving ralisation of th assts and distribution of th procds among th crditors, sharholdrs or mmbrs as appropriat, which involv any intrvntion by administrativ or judicial authoritis, including whr th collctiv procdings ar trminatd by a composition or othr analogous masur, whthr or not thy ar foundd on insolvncy or ar voluntary or compulsory; N BA A: 1 (1) Bankruptcy mans th insolvncy of a dbtor dclard by a court judgmnt. (2) A dbtor is insolvnt if th dbtor is unabl to satisfy th claims of th crditors and such inability, du to th dbtor s financial situation, is not tmporary. (3) A dbtor who is a lgal prson is insolvnt also if th assts of th dbtor ar insufficint for covring th obligations throf and, du to th dbtor s financial situation, such insufficincy is not tmporary. BA A: 2 A 129 P 2 In a bankruptcy procdur, th claims of th crditors ar satisfid out of th assts of th dbtor pursuant to th procdur prscribd in this Act by transfrring th assts of th dbtor or rhabilitating th undrtaking throf. A dbtor who is a natural prson is givn th opportunity to b rlasd from his or hr obligations through bankruptcy procdings pursuant to th procdur prscribd in this Act. a rhabilitation of an ntrpris consists in application of masurs that nabl satisfaction of th claims of th crditors through continuation of th businss activitis of th dbtor. Th rhabilitation plan sts out whthr it would b xpdint to mak a compromis. Th trust may commnc rhabilitation immdiatly aftr th dclaration of bankruptcy. 18

19 2 CC A 366 P:1 (1) a public limitd company is to b dissolvd by a court judgmnt if: 1) th gnral mting dos not adopt a dissolution rsolution if its adoption is obligatory pursuant to law or th articls of association, th sharholdrs hav not adoptd any of th rsolutions prscribd in 301 or th gnral mting has not bn calld to adopt such a rsolution; 2) th gnral mting has not bn hld during th last two financial yars; 3) th trm of authority of th managmnt board xpird mor than two yars prviously and a nw managmnt board has not bn lctd; 4) in othr cass providd by law. 19

20 2 A: 2 N: (k) (k) "rorganisation masurs" mans masurs which involv any intrvntion by administrativ or judicial authoritis which ar intndd to prsrv or rstor th financial situation and which affct pr-xisting rights of third partis, including but not limitd to masurs involving a suspnsion of paymnts, suspnsion of nforcmnt masurs or rduction of claims; N CIA A: 111 P:1 (1) A moratorium is a total or partial suspnsion of th activitis of an Estonian crdit institution, a branch of such crdit institution foundd in a contracting stat or a branch of a third country crdit institution foundd in Estonia with solvncy problms in ordr to ascrtain th rasons for and natur of th solvncy problms and th possibilitis of rstoring solvncy, and to protct th propritary intrsts of crditors. IAA A: 103 P:1 (1) A spcial rgim is a procdur stablishd for th rprsntation or activitis of an Estonian insuranc undrtaking, a Contracting Stat branch of an Estonian insuranc undrtaking, or an Estonian branch of a third country insuranc undrtaking (hrinaftr in this Chaptr insuranc undrtaking) which du to its financial position is xprincing, or in th opinion of th Financial Suprvision Authority, is likly to xprinc solvncy problms, which diffrs from th usual procdur and th objctiv of which is to ascrtain th rason and natur of th solvncy problms, and th possibility to rstor solvncy, and to tak masurs to protct th intrsts of policyholdrs, insurd prsons and bnficiaris. 20

21 2 A: 2 N: (l) A: 2 N: (m) (l) "nforcmnt vnt" mans an vnt of dfault or any similar vnt as agrd btwn th partis on th occurrnc of which, undr th trms of a financial collatral arrangmnt or by opration of law, th collatral takr is ntitld to ralis or appropriat financial collatral or a clos-out ntting provision coms into ffct; (m) "right of us" mans th right of th collatral takr to us and dispos of financial collatral providd undr a scurity financial collatral arrangmnt as th ownr of it in accordanc with th trms of th scurity financial collatral arrangmnt; N LPA A: 292 P: 2-3 A: P: 3 N LPA A: 288 A: 314 P: 3 (2) Th right to sll a pldgd thing is cratd for th pldg if a claim scurd by th pldg is not satisfid according to th claim. An agrmnt cannot drogat from th provisions of subsction 292 (3) of this Act, xcpt in th cas of financial collatral spcifid in of this Act and if th agrmnt of th partis allows dtrmination of th valu of th pldgd objct (1) A pldg dos not hav th right to us a pldgd thing unlss othrwis providd by th pldg contract. (3) If a pldg xrciss th right to dispos of a pldgd objct grantd thrto upon provision of financial collatral, th pldg is rquird to rplac th pldgd objcts with objcts of th sam typ and with th sam valu not latr than aftr th claim scurd by th pldg bcoms collctabl, unlss th partis hav agrd othrwis. In this contxt th gnral principl of frdom of contract is applicabl (containd in th LOA Art 5): nforcmnt vnt can b dtrmind on a contractual basis. Gnral principl of frdom of contract applis. 21

22 2 A: 2 N: (n) A: 2 P: 2 S: 1 (n) "clos-out ntting provision" mans a provision of a financial collatral arrangmnt, or of an arrangmnt of which a financial collatral arrangmnt forms part, or, in th absnc of any such provision, any statutory rul by which, on th occurrnc of an nforcmnt vnt, whthr through th opration of ntting or st-off or othrwis: (i) th obligations of th partis ar acclratd so as to b immdiatly du and xprssd as an obligation to pay an amount rprsnting thir stimatd currnt valu, or ar trminatd and rplacd by an obligation to pay such an amount; and/or (ii) an account is takn of what is du from ach party to th othr in rspct of such obligations, and a nt sum qual to th balanc of th account is payabl by th party from whom th largr amount is du to th othr party. s in this Dirctiv to financial collatral bing "providd", or to th "provision" of financial collatral, ar to th financial collatral bing dlivrd, transfrrd, hld, rgistrd or othrwis dsignatd so as to b in th possssion or undr th control of th collatral takr or of a prson acting on th collatral takr's bhalf. N LOA A: 197, 2 N LOA A: 9 (1) If two prsons (partis to a st-off) ar rquird to pay ach othr a sum of mony or prform anothr obligation of th sam typ, ithr party (th party rqusting st-off) may st off th claim throf against th claim of th othr party if th party rqusting st-off has th right to prform th obligation throf and to rquir prformanc from th othr party. (2) As a rsult of a st-off, th claims of th partis to th st-off xtinguish as of th tim thy could b st off and to th xtnt that thy ovrlap unlss th partis agr othrwis. If intrst has alrady bn paid on on or both of th claims, th st-off shall hav rtroactiv ffct only for th last priod for which intrst was paid. (1) A contract is ntrd into by an offr bing mad and accptd or by th mutual xchang of dclarations of intnt in any othr mannr if it is sufficintly clar that th partis hav rachd an agrmnt. 22

23 2 A: 2 P: 2 S: 2 A: 2 P: 3 A: 3 Any right of substitution or to withdraw xcss financial collatral in favour of th collatral providr shall not prjudic th financial collatral having bn providd to th collatral takr as mntiond in this Dirctiv. s in this Dirctiv to "writing" includ rcording by lctronic mans and any othr durabl mdium. FORMAL REQUIREMENTS Mmbr Stats shall not rquir that th cration, validity, prfction, nforcability or admissibility in vidnc of a financial collatral arrangmnt or th provision of financial collatral undr a financial collatral arrangmnt b dpndnt on th prformanc of any formal act. N Th dscribd contract is not forbiddn according to Estonian lgal acts. N CCA A: 80, 2 N LPA A: 315 P: 2 (1) A transaction in lctronic format is dmd to b qual to a transaction in writtn format unlss othrwis providd by law. (2) In ordr to comply with th rquirmnts for th lctronic format, a transaction shall: 1) b ntrd into in a format nabling rpatd rproduction and 2) contain th nams of th prsons ntring into th transaction and 3) b lctronically signd by th prsons ntring into th transaction. (2 1 ) A financial collatral arrangmnt shall b ntrd into in a format which can b rproducd in writing. 23

24 2 A: 3 P: 2 A: 4 N: (a) Paragraph 1 is without prjudic to th application of this Dirctiv to financial collatral only onc it has bn providd and if that provision can b vidncd in writing and whr th financial collatral arrangmnt can b vidncd in writing or in a lgally quivalnt mannr. ENFORCEMENT OF FINANCIAL COLLATERAL ARRANGEMENTS Mmbr Stats shall nsur that on th occurrnc of an nforcmnt vnt, th collatral takr shall b abl to ralis in th following mannrs, any financial collatral providd undr, and subjct to th trms agrd in, a scurity financial collatral arrangmnt: (a) financial instrumnts by sal or appropriation and by stting off thir valu against, or applying thir valu in discharg of, th rlvant financial obligations; N LPA A: 315 P: 2 (2 1 ) A financial collatral arrangmnt shall b ntrd into in a format which can b rproducd in writing. N LPA A: (1) A pldgor and a pldg may agr on a mannr of slling th pldgd objct which diffrs from that providd by law. If a third prson has a right in th pldgd objct which xtinguishs upon sal of th objct, th consnt of th third prson is rquird to chang th mannr of sal. (2) An agrmnt cannot drogat from th provisions of subsction 292 (3) of this Act, xcpt in th cas of financial collatral spcifid in of this Act and if th agrmnt of th partis allows dtrmination of th valu of th pldgd objct. (3) If, upon provision of financial collatral, an agrmnt spcifid in subsction (2) of this sction has bn ntrd into, thn, upon cration of th right of sal, a claim scurd by th pldg is dmd to b satisfid to th xtnt which corrsponds to th agrd valu of th pldgd objct. 24

25 2 ECRSA A: 16 P: 8 (8) Th provisions of subsctions 16 (4) and (6) of this Act do not apply to th disposal of scuritis pldgd on th basis of a financial collatral arrangmnt Not applicabl provisions ar: (Art 16) (4) Upon disposal of a pldgd scurity, th pldg is also valid with rgard to th transfr of th scurity. Th rgistrar shall transfr th pldg to th scuritis account of th transfr of th pldgd scurity. (6) Upon failur to satisfy a claim scurd by a pldg of scuritis, th pldgd scuritis may, in ordr to covr th claim, b transfrrd on th basis of an ordr issud to th account administrator of th pldgor by th bailiff, unlss othrwis providd by an agrmnt btwn th pldg and th pldgor. On th basis of an agrmnt btwn th pldgor and th pldg, th 25 trm for th advanc notic to b givn of a transfr of pldgd scuritis may b shortr than th trm

26 2 A: 4 N: (b) (b) cash by stting off th amount against or applying it in discharg of th rlvant financial obligations. N LPA A: (1) A pldgor and a pldg may agr on a mannr of slling th pldgd objct which diffrs from that providd by law. If a third prson has a right in th pldgd objct which xtinguishs upon sal of th objct, th consnt of th third prson is rquird to chang th mannr of sal. (2) An agrmnt cannot drogat from th provisions of subsction 292 (3) of this Act, xcpt in th cas of financial collatral spcifid in of this Act and if th agrmnt of th partis allows dtrmination of th valu of th pldgd objct. (3) If, upon provision of financial collatral, an agrmnt spcifid in subsction (2) of this sction has bn ntrd into, thn, upon cration of th right of sal, a claim scurd by th pldg is dmd to b satisfid to th xtnt which corrsponds to th agrd valu of th pldgd objct. 26

27 2 A: 4 P: 2 N: (a) A: 4 P: 2 N: (b) A: 4 P: 3 S: 1 Appropriation is possibl only if: (a) this has bn agrd by th partis in th scurity financial collatral arrangmnt; and (b) th partis hav agrd in th scurity financial collatral arrangmnt on th valuation of th financial instrumnts. Mmbr Stats which do not allow appropriation on 27 Jun 2002 ar not obligd to rcognis it. N LPA A: (1) A pldgor and a pldg may agr on a mannr of slling th pldgd objct which diffrs from that providd by law. If a third prson has a right in th pldgd objct which xtinguishs upon sal of th objct, th consnt of th third prson is rquird to chang th mannr of sal. (2) An agrmnt cannot drogat from th provisions of subsction 292 (3) of this Act, xcpt in th cas of financial collatral spcifid in of this Act and if th agrmnt of th partis allows dtrmination of th valu of th pldgd objct. (3) If, upon provision of financial collatral, an agrmnt spcifid in subsction (2) of this sction has bn ntrd into, thn, upon cration of th right of sal, a claim scurd by th pldg is dmd to b satisfid to th xtnt which corrsponds to th agrd valu of th pldgd objct. N LPA A: P: 3 (3) If, upon provision of financial collatral, an agrmnt spcifid in subsction (2) of this sction has bn ntrd into, thn, upon cration of th right of sal, a claim scurd by th pldg is dmd to b satisfid to th xtnt which corrsponds to th agrd valu of th pldgd objct. D Estonia has not usd this possibility 27

28 2 A: 4 P: 3 S: 2 A: 4 P: 4 N: (a) If thy mak us of this option, Mmbr Stats shall inform th Commission which in turn shall inform th othr Mmbr Stats throf. Th mannrs of ralising th financial collatral rfrrd to in paragraph 1 shall, subjct to th trms agrd in th scurity financial collatral arrangmnt, b without any rquirmnt to th ffct that: (a) prior notic of th intntion to ralis must hav bn givn; (b) th trms of th ralisation b approvd by any court, public officr or othr prson; (c) th ralisation b conductd by public auction or in any othr prscribd mannr; or (d) any additional tim priod must hav lapsd. n.a N LPA A: 319 2, 2 (1) A pldgor and a pldg may agr on a mannr of slling th pldgd objct which diffrs from that providd by law. If a third prson has a right in th pldgd objct which xtinguishs upon sal of th objct, th consnt of th third prson is rquird to chang th mannr of sal. (2) An agrmnt cannot drogat from th provisions of subsction 292 (3) of this Act, xcpt in th cas of financial collatral spcifid in of this Act and if th agrmnt of th partis allows dtrmination of th valu of th pldgd objct. It is possibl to agr on any form of slling. 28

29 2 A: 4 P: 5 Mmbr Stats shall nsur that a financial collatral arrangmnt can tak ffct in accordanc with its trms notwithstanding th commncmnt or continuation of winding-up procdings or rorganisation masurs in rspct of th collatral providr or collatral takr. N BA A: 18 P: 5 (5) Th application of masurs for scuring a bankruptcy ptition dos not affct th validity of disposition for th xrcis of rights or prformanc of obligations arising from a financial collatral arrangmnt spcifid in of th Law of Proprty Act, or th ntting prformd through a paymnt systm spcifid in subsction 87 (2) of th Crdit Institutions Act or through a scuritis sttlmnt systm spcifid in subsction 213 (1) of th Scuritis Markt Act. CIA IAA A: ) Th provisions of this sction do not affct th validity of disposition for th xrcis of rights or prformanc of obligations arising from a financial collatral arrangmnt spcifid in of th Law of Proprty Act, or th ntting prformd through a paymnt systm spcifid in subsction 87 (2) of this Act or through a scuritis sttlmnt systm spcifid in subsction 213 (1) of th Scuritis Markt Act. (11) Provision of financial collatral and disposal of objcts of financial collatral providd for in of th Law of Proprty Act aftr th stablishmnt of a moratorium ar valid if carrid out on th dat of stablishmnt of th moratorium and th countrparty to th financial collatral arrangmnt provs that thy wr not awar nor should hav bn awar of stablishmnt of th moratorium 29

30 2 IAA A: 106 P: 5-6 (5) Th validity of a disposition mad for th xrcis of th rights or prformanc of th obligations arising from a financial guarant agrmnt spcifid in of th Law of Proprty Act, or st-offs carrid out through a paymnt systm or through a scuritis sttlmnt systm ar not contingnt upon a dcision to stablish a spcial rgim. (6) Establishmnt of a financial guarant or disposal of th objct of th financial guarant providd in of th Law of Proprty Act carrid out aftr stablishmnt of th spcial rgim rmains in forc if such acts wr prformd on th dat of dclaration of th spcial rgim and th othr party to th financial guarant agrmnt is abl to prov that th party was not nor should hav bn awar of th stablishmnt of th spcial rgim 30

31 2 A: 4 P: 6 This and s 5, 6 and 7 shall b without prjudic to any rquirmnts undr national law to th ffct that th ralisation or valuation of financial collatral and th calculation of th rlvant financial obligations must b conductd in a commrcially rasonabl mannr. RIGHT OF THE USE OF FINANCIAL COLLATERAL UNDER SECURIT FINANCIAL COLLATERAL ARRANGEMENTS N LPA A: (1) A pldgor and a pldg may agr on a mannr of slling th pldgd objct which diffrs from that providd by law. If a third prson has a right in th pldgd objct which xtinguishs upon sal of th objct, th consnt of th third prson is rquird to chang th mannr of sal.(2) An agrmnt cannot drogat from th provisions of subsction 292 (3) of this Act, xcpt in th cas of financial collatral spcifid in of this Act and if th agrmnt of th partis allows dtrmination of th valu of th pldgd objct.(3) If, upon provision of financial collatral, an agrmnt spcifid in subsction (2) of this sction has bn ntrd into, thn, upon cration of th right of sal, a claim scurd by th pldg is dmd to b satisfid to th xtnt which corrsponds to th agrd valu of th pldgd objct. 31

32 2 A: 5 A: 5 P: 2 S: 1 If and to th xtnt that th trms of a scurity financial collatral arrangmnt so provid, Mmbr Stats shall nsur that th collatral takr is ntitld to xrcis a right of us in rlation to financial collatral providd undr th scurity financial collatral arrangmnt. Whr a collatral takr xrciss a right of us, h thrby incurs an obligation to transfr quivalnt collatral to rplac th original financial collatral at th latst on th du dat for th prformanc of th rlvant financial obligations covrd by th scurity financial collatral arrangmnt. Altrnativly, th collatral takr shall, on th du dat for th prformanc of th rlvant financial obligations, ithr transfr quivalnt collatral, or, if and to th xtnt that th trms of a scurity financial collatral arrangmnt so provid, st off th valu of th quivalnt collatral against or apply it in discharg of th rlvant financial obligations. N LPA A: 288 N LPA LOA A: 314 P: 3 A: 314 P: 3 A: 197 (1) A pldg dos not hav th right to us a pldgd thing unlss othrwis providd by th pldg contract. (3) If a pldg xrciss th right to dispos of a pldgd objct grantd thrto upon provision of financial collatral, th pldg is rquird to rplac th pldgd objcts with objcts of th sam typ and with th sam valu not latr than aftr th claim scurd by th pldg bcoms collctabl, unlss th partis hav agrd othrwis. (3) If a pldg xrciss th right to dispos of a pldgd objct grantd thrto upon provision of financial collatral, th pldg is rquird to rplac th pldgd objcts with objcts of th sam typ and with th sam valu not latr than aftr th claim scurd by th pldg bcoms collctabl, unlss th partis hav agrd othrwis. (1) If two prsons (partis to a st-off) ar rquird to pay ach othr a sum of mony or prform anothr obligation of th sam typ, ithr party (th party rqusting st-off) may st off th claim throf against th claim of th othr party if th party rqusting st-off has th right to prform th obligation throf and to rquir prformanc from th othr party. 32

33 2 A: 5 P: 3 A: 5 P: 4 A: 5 P: 5 Th quivalnt collatral transfrrd in discharg of an obligation as dscribd in paragraph 2, first subparagraph, shall b subjct to th sam scurity financial collatral agrmnt to which th original financial collatral was subjct and shall b tratd as having bn providd undr th scurity financial collatral arrangmnt at th sam tim as th original financial collatral was first providd. Mmbr Stats shall nsur that th us of financial collatral by th collatral takr according to this dos not rndr invalid or unnforcabl th rights of th collatral takr undr th scurity financial collatral arrangmnt in rlation to th financial collatral transfrrd by th collatral takr in discharg of an obligation as dscribd in paragraph 2, first subparagraph. If an nforcmnt vnt occurs whil an obligation as dscribd in paragraph 2 first subparagraph rmains outstanding, th obligation may b th subjct of a clos-out ntting provision. N LOA A: 197 (1) If two prsons (partis to a st-off) ar rquird to pay ach othr a sum of mony or prform anothr obligation of th sam typ, ithr party (th party rqusting st-off) may st off th claim throf against th claim of th othr party if th party rqusting st-off has th right to prform th obligation throf and to rquir prformanc from th othr party. According to th gnral principl of frdom of contract it is not forbiddn to agr that th nw pldg bcoms th objct of contract from th vry bginning. N According to th gnral principl of frdom of contract it is not forbiddn to agr that th nw pldg bcoms th objct of contract from th vry bginning. N LOA A: 197 (1) If two prsons (partis to a st-off) ar rquird to pay ach othr a sum of mony or prform anothr obligation of th sam typ, ithr party (th party rqusting st-off) may st off th claim throf against th claim of th othr party if th party rqusting st-off has th right to prform th obligation throf and to rquir prformanc from th othr party. 33

34 2 A: 6 RECOGNITION OF TITLE TRANSFER FINANCIAL COLLATERAL ARRANGEMENTS Mmbr Stats shall nsur that a titl transfr financial collatral arrangmnt can tak ffct in accordanc with its trms. N Th of LPA was rppald (from ) (containd txt as follows: Th rpald containd th principl that th pldging of rights wr subjctd to th provisions of pldging th rights also in cas ths rights wr transfrrd to anothr prson, providd that th aim of th transfr of rights was to giv th rcivr of rights a collatral. Thrfor, it is up to th contracting partis to dtrmin th ffct of financial collatral arrangmnt. 34

35 2 A: 6 P: 2 If an nforcmnt vnt occurs whil any obligation of th collatral takr to transfr quivalnt collatral undr a titl transfr financial collatral arrangmnt rmains outstanding, th obligation may b th subjct of a clos-out ntting provision. RECOGNITION OF CLOSE-OUT NETTING PROVISIONS N LOA A: 197 (1) If two prsons (partis to a st-off) ar rquird to pay ach othr a sum of mony or prform anothr obligation of th sam typ, ithr party (th party rqusting st-off) may st off th claim throf against th claim of th othr party if th party rqusting st-off has th right to prform th obligation throf and to rquir prformanc from th othr party. 35

36 2 A: 7 N: (a) Mmbr Stats shall nsur that a clos-out ntting provision can tak ffct in accordanc with its trms: (a) notwithstanding th commncmnt or continuation of winding-up procdings or rorganisation masurs in rspct of th collatral providr and/or th collatral takr; and/or (b) notwithstanding any purportd assignmnt, judicial or othr attachmnt or othr disposition of or in rspct of such rights. N BA A: 18 P: 5 (5) Th application of masurs for scuring a bankruptcy ptition dos not affct th validity of disposition for th xrcis of rights or prformanc of obligations arising from a financial collatral arrangmnt spcifid in of th Law of Proprty Act, or th ntting prformd through a paymnt systm spcifid in subsction 87 (2) of th Crdit Institutions Act or through a scuritis sttlmnt systm spcifid in subsction 213 (1) of th Scuritis Markt Act. CIA A: 114 P: 4 A: 114 S: 11 (4) Transactions concludd for th xrcis of rights or prformanc of obligations arising from a financial collatral arrangmnt spcifid in of th Law of Proprty Act shall not b rcovrd (11) Provision of financial collatral and disposal of objcts of financial collatral providd for in of th Law of Proprty Act aftr th stablishmnt of a moratorium ar valid if carrid out on th dat of stablishmnt of th moratorium and th countrparty to th financial collatral arrangmnt provs that thy wr not awar nor should hav bn awar of stablishmnt of th moratorium. 36

37 2 A: 7 P: 2 Mmbr Stats shall nsur that th opration of a clos-out ntting provision may not b subjct to any of th rquirmnts that ar mntiond in 4(4), unlss othrwis agrd by th partis. IAA N LPA A: 319 2, 2, 3 (5) Th validity of a disposition mad for th xrcis of th rights or prformanc of th obligations arising from a financial guarant agrmnt spcifid in of th Law of Proprty Act, or st-offs carrid out through a paymnt systm or through a scuritis sttlmnt systm ar not contingnt upon a dcision to stablish a spcial rgim (1) A pldgor and a pldg may agr on a mannr of slling th pldgd objct which diffrs from that providd by law. If a third prson has a right in th pldgd objct which xtinguishs upon sal of th objct, th consnt of th third prson is rquird to chang th mannr of sal. (2) An agrmnt cannot drogat from th provisions of subsction 292 (3) of this Act, xcpt in th cas of financial collatral spcifid in of this Act and if th agrmnt of th partis allows dtrmination of th valu of th pldgd objct. (3) If, upon provision of financial collatral, an agrmnt spcifid in subsction (2) of this sction has bn ntrd into, thn, upon cration of th right of sal, a claim scurd by th pldg is dmd to b satisfid to th xtnt which corrsponds to th agrd valu of th pldgd objct Th sam provisions rgulating th ralization of usual pldgs ar applicabl, i. it is conductd as agrd. 37

38 2 CERTAIN INSOLVENC PROVISIONS DISAPPLIED A: 8 N: (a) Mmbr Stats shall nsur that a financial collatral arrangmnt, as wll as th provision of financial collatral undr such arrangmnt, may not b dclard invalid or void or b rvrsd on th sol basis that th financial collatral arrangmnt has com into xistnc, or th financial collatral has bn providd: (a) on th day of th commncmnt of winding-up procdings or rorganisation masurs, but prior to th ordr or dcr making that commncmnt; or (b) in a prscribd priod prior to, and dfind by rfrnc to, th commncmnt of such procdings or masurs or by rfrnc to th making of any ordr or dcr or th taking of any othr action or occurrnc of any othr vnt in th cours of such procdings or masurs. N BA A: 36 P: P:2 Provision of financial collatral and disposal of objcts of financial collatral providd for in of th Law of Proprty Act aftr th dclaration of bankruptcy ar valid if carrid out on th dat of th dclaration of bankruptcy and th countrparty to th financial collatral arrangmnt provs that thy wr not awar nor should hav bn awar of commncmnt of th bankruptcy procdings Th provisions of this subsction do not apply to th provision of financial collatral and disposal of objcts of financial collatral providd for in of th Law of Proprty Act, or th ntting prformd through a paymnt systm spcifid in subsction 87 (2) of th Crdit Institutions Act or through a scuritis sttlmnt systm spcifid in subsction 213 (1) of th Scuritis Markt Act 114 P:4 Transactions concludd for th xrcis of rights or prformanc of obligations arising from a financial collatral arrangmnt spcifid in of th Law of Proprty Act shall not b rcovrd 38

39 2 CIA A: 114 P:4, 11 (4) Transactions concludd for th xrcis of rights or prformanc of obligations arising from a financial collatral arrangmnt spcifid in of th Law of Proprty Act shall not b rcovrd. (11) Provision of financial collatral and disposal of objcts of financial collatral providd for in of th Law of Proprty Act aftr th stablishmnt of a moratorium ar valid if carrid out on th dat of stablishmnt of th moratorium and th countrparty to th financial collatral arrangmnt provs that thy wr not awar nor should hav bn awar of stablishmnt of th moratorium. IAA A: 106 P: 5 (5) Th validity of a disposition mad for th xrcis of th rights or prformanc of th obligations arising from a financial guarant agrmnt spcifid in of th Law of Proprty Act, or st-offs carrid out through a paymnt systm or through a scuritis sttlmnt systm ar not contingnt upon a dcision to stablish a spcial rgim 39

40 2 A: 8 P: 2 Mmbr Stats shall nsur that whr a financial collatral arrangmnt or a rlvant financial obligation has com into xistnc, or financial collatral has bn providd on th day of, but aftr th momnt of th commncmnt of, winding-up procdings or rorganisation masurs, it shall b lgally nforcabl and binding on third partis if th collatral takr can prov that h was not awar, nor should hav bn awar, of th commncmnt of such procdings or masurs. N Hr all th provisions implmnting Art 4 (5), Art 7 (1) a) and Art 8 (1) a) ar applicabl. Plas s abov. 40

41 2 A: 8 P: 3 N: (a) Whr a financial collatral arrangmnt contains: (a) an obligation to provid financial collatral or additional financial collatral in ordr to tak account of changs in th valu of th financial collatral or in th amount of th rlvant financial obligations, or (b) a right to withdraw financial collatral on providing, by way of substitution or xchang, financial collatral of substantially th sam valu, Mmbr Stats shall nsur that th provision of financial collatral, additional financial collatral or substitut or rplacmnt financial collatral undr such an obligation or right shall not b tratd as invalid or rvrsd or dclard void on th sol basis that: N BA A: 109 P: 2 A: 114 P: 4 Th provisions of this subsction do not apply to th provision of financial collatral and disposal of objcts of financial collatral providd for in of th Law of Proprty Act, or th ntting prformd through a paymnt systm spcifid in subsction 87 (2) of th Crdit Institutions Act or through a scuritis sttlmnt systm spcifid in subsction 213 (1) of th Scuritis Markt Act Transactions concludd for th xrcis of rights or prformanc of obligations arising from a financial collatral arrangmnt spcifid in of th Law of Proprty Act shall not b rcovrd. 41