Law No. 145/2018 laid down inter alia a timeline within which the Italian Ministry of Economy and Finance was required to introduce certain delegated decrees to provide guidance on certain aspects concerning the segregation of assets for such newly introduced scheme.
In particular such decrees had to govern and define further aspects concerning:
- the kind of assets and rights to be segregated for the benefit of the noteholders (or the derivatives’ counterparties in the context of hedging agreements); and
- the applicable schemes in order to segregate those assets and rights jointly with clarification on their enforceability.
- New provisions under Law Decree 162
In addition, Law Decree 162, without amending any provisions of the Italian Securitisation Law, provides for certain clarifications concerning the segregation of assets and rights in order to facilitate synthetic securitisations. In particular it has been clarified that:
- article 4 of the Italian Securitisation Law (which inter alia lays down simplified forms of notification to the assigned debtors also entailing transfer of the related security rights to the SPV) applies to the securitisations performed through finance granted by the SPV to the borrower, rather than an outright sale of receivables from the assignor to the SPV;
- for the purposes of the segregation of assets and rights, the borrower must adopt a corporate resolution, which shall be published, pursuant to article 2436 of the Italian Civil Code, in the competent Company Register. Said resolution must specify:
- the assets and rights to be segregated (which can be also selected en bloc and not by list),
- the entities which benefit of the segregation and their rights in relation to the segregated assets and rights;
- the envisaged manner of disposal or replacement of the segregated assets and rights; and
- the limits within which the borrower can use the cash flow generated by the disposal or replacement of the segregated assets and rights;
- in case of insolvency proceedings (procedura concorsuale o di gestione della crisi) regarding the borrower, the segregation of assets and rights shall remain in full force and effect and the agreements part of the segregated assets cannot be terminated on grounds of the insolvency proceedings (procedura concorsuale o di gestione della crisi) overwhelming the borrower, however the competent bodies of the insolvency proceeding are entitled to transfer assets, rights and liabilities of such segregated estate to the SPV or to another entity designated by the SPV.
Avv. Carmelo Raimondo
Avv. Matteo Colavolpe
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