PORTUGAL Law and Practice Contributed by: Benedita Aires and Orlando Vogler Guiné, VdA
tlements on their behalf, under the terms set forth in the documents; • to enforce any decision taken by the note - holders’ meetings calling for the delivery of an enforcement notice declaring the notes capable of being accelerated; • to represent the noteholders in any judicial proceedings, including in judicial proceed - ings against the issuer and, in particular, in the context of any execution proceedings and insolvency proceedings commenced against the issuer; • to collect and examine all the relevant docu - mentation in respect of the issuer that is pro - vided to the shareholder(s) of the issuer; and • to provide the noteholders with all the known relevant information regarding the issuance of the notes. Representative’s rights The rights of the common representative under the documents will be enforceable in Portuguese courts by the common representative against the purchaser, the originator and the servicer (in these latter two cases under the terms set forth in the co-ordination agreement), by vir - tue of the applicable legal regime and further to the provisions in this respect contained in the documents, with the common representa - tive being entitled to enforce the noteholders’ rights thereunder acting on their behalf. Upon the enforcement of any given right, Portuguese courts will require the relevant entity to provide enough evidence of its right to claim. The duties and obligations of the common representative under the documents that are expressed to be governed by Portuguese law (including the co- ordination agreement) will be enforceable in Por - tuguese courts. As a matter of Portuguese law, the common rep - resentative would also be entitled to give notice
to the CMVM of any event that could give rise to the CMVM revoking the authorisation granted to the issuer to operate as a credit securitisation company, without incurring any costs. However, as this matter is subject to the discretion of the regulators and may only be ascertained in spe - cific contexts, no assurance can be given as to the position the CMVM would ultimately take in It is important to stress that, in similar terms to those that have been provided for in the Italian context, the assets segregation principle and the legal creditor’s privilege over the assets exclu - sively allocated to a given issue of securitisation notes, which are clearly established in the Secu - ritisation Law, seem to dispense with the need for the function of a “security trustee” in con - nection with this transaction, with the common representative of the noteholders acting rather like a “spokesperson” or co-ordinator of the noteholders in respect of certain matters, per - forming the type of role that is usually played by “trustees” in transactions designed under com - mon law jurisdictions. this respect. Appointment In the case of insolvency, an infringement of contractual duties and obligations or any other default situation occurring in respect of the com - mon representative, the retirement thereof and the corresponding appointment of a substitute common representative would happen simply following a decision by the meeting of notehold - ers, as provided for in Article 65.3 of the Secu - ritisation Law. According to Article 65.6 of the Securitisation Law, the isolated enforcement of the notehold - ers’ entitlements may be restricted by the docu - ments, whenever it is in contradiction of the valid decisions taken at the meeting of noteholders.
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