ORDER
OF THE FEDERAL SERVICE FOR FINANCIAL MARKETS
NO. 08-28/PZ-N OF JULY 3, 2008
ON THE INTRODUCTION OF AMENDMENTS TO THE REGULATIONS
FOR THE ACTIVITY OF SPECIALISED DEPOSITARIES OF THE MORTGAGE
COVER AND TO THE RULES FOR KEEPING THE REGISTER OF THE MORTGAGE
COVER, APPROVED BY ORDER OF THE FEDERAL SERVICE
FOR FINANCIAL MARKETS NO. 05-60/PZ-N OF NOVEMBER 1, 2005
In accordance with the second part of Article 5, the second part of
Article 35 and the first part of Article 43 of Federal Law No. 152-FZ of
November 11, 2003 on Mortgage Securities (Sobraniye Zakonodatelstva
Rossiyskoy Federatsii No. 46, 2003, item 4448; No. 1, 2005, item 19; No.
31, 2006, item 3440) and with the Statute of the Federal Service for
Financial Markets, approved by Decision of the Government of the Russian
Federation No. 317 of June 30, 2004 (Sobraniye Zakonodatelstva Rossiyskoy
Federatsii No. 27, 2007, item 2788; No. 33, 2005, item 3429; No. 13,
2006, item 1400; No. 52, 2006, item 5584; No. 12, 2007, item 1417; No.
19, 2008, item 2192), I order:
1. To approve the appended Amendments to the Regulations for the
Activity of the Specialised Depositaries of the Mortgage Cover, approved
by Order of the Federal Service for Financial Markets No. 05-60/pz-n of
November 1, 2005 (with amendments introduced by Order of the Federal
Service for Financial Markets (FSFM) No. 06-142/pz-n of December 5,
2006).
2. To approve the appended Amendments to the Rules for Keeping the
Register of the Mortgage Cover, endorsed by Order of the Federal Service
for Financial Markets of Russia No. 05-60/pz-n of November 1, 2005 (with
amendments introduced by Order of the FSFM of Russia No. 06-142/pz-n of
December 5, 2006).
Chief of the Federal Service for Financial
Markets of Russia V.D. Milovidov
Registered by the Ministry of Justice of the Russian Federation on July
31, 2008.
Registration number 12054
Amendments
to the Regulations for the Activity of Specialised Depositaries
of the Mortgage Cover, approved by Order
of the Federal Service for Financial Markets of Russia
No. 05-60/pz-n of November 1, 2005
(approved by Order of the Federal Service
for Financial Markets No. 08-28/pz-n of July 3, 2008)
1. Item 1.2 shall be supplemented with second paragraph that reads
as follows:
"If on the date of the approval of the decision on the issue (the
additional issue) of banks with a mortgage cover the claims for the
obligations secured by mortgage comprising the mortgage cover have not
passed to the issuer, the specialised depositary before the transfer of
such requirements to the issuer shall carry out the accounting and the
storage of this property, and also exercise control over its disposal on
the basis of the agreement with the person who is a creditor for the said
claim and has handled the transaction on the concession of them to the
issuer (hereinafter referred to as the previous creditor)".
2. The second paragraph of Item 3.4 after the word "the manager"
shall be supplemented with the words "the previous creditor" and after
the word "the manager" shall be supplemented with the words "the previous
creditor".
3. Item 4.1 shall be supplemented with the fourth paragraph that
reads as follows:
"if on the date of the approval of the decision on the issue (the
additional issue) of bonds with the mortgage cover the claims for the
obligations secured by the mortgage that comprises the mortgage cover
have not yet passed to the issuer - also for the observance of the
conditions by the previous creditor for the transaction of the concession
of the said claims for the issuer and for the disposal by the previous
creditor of the corresponding property."
4. The fourth and the fifth paragraphs of Item 4.2 shall be worded
as follows:
"in the event of the inclusion in the mortgage cover of the claim
for the mortgage-secured obligation that is not certified with a pledge -
he shall verify the belonging of the said claim to the issuer and the
presence of the state registration of the mortgage, the pledgee of which
is the issuer, and if at the time of inclusion the said claim belongs to
the previous creditor - he shall verify the belonging of the said claim
to the latter, the presence of the state registration of the mortgage,
the pledgee of which is the previous creditor, and the observance of the
claims for the transfer of the said claim to the issuer before the date
of the beginning of the period of the flotation of bonds with the
mortgage cover fixed by the decision on their issue (the additional
issue) 9the presence of the state registration of the transaction for the
transfer of the creditor's rights under the mortgage-secured obligation
and the mortgage rights of the pledgee to the manager who acts a trust
administrator of the property that comprises the mortgage cover, and the
state registration of the mortgage, the pledgee of which is the manager,
if the inclusion is carried out after the registration of the rules for
trust management, or the person who includes the claim in the mortgage
cover, if this inclusion is effected before the registration of the rules
for trust management);
in the event of the inclusion in the mortgage cover of the claim for
the mortgage-secured obligation certified with a pledge - he shall verify
the presence on the pledge of the note that confirms the fact that the
issuer is its owner or its new owner, and in if at the time of its
inclusion the pledge belongs to the previous creditor - he shall verify
the presence on the pledge of the note that confirms the fact that the
previous creditor is its owner, and the observance of the claim for the
transfer of the right of ownership of the pledge to the issuer before the
date of the beginning of the period of the flotation of bonds with the
mortgage cover established by the decision on their issue (the additional
issue) (the manager, if the inclusion is effected after the registration
of the rules for trust management, or the person who includes the claim
in the mortgage cover, if the inclusion is carried out before the
registration of the rules for trust management)";
5. Item 4.4 shall be supplemented with the fifth paragraph that
reads as follows:
"While exercising control over the observance by the issuer of the
requirements of the Federal Law on Mortgage Securities before the date of
the start of the period of the flotation of bonds with a mortgage cover
the specialised depositary that also takes into account the claims of the
previous creditor for the mortgage-secured obligations comprising the
mortgage cover, including those certified by the pledges which shall go
to the issuer before the date of the start of the period of the flotation
of bonds with the mortgage cover fixed by the decision on their issue
(the additional issue)".
6. The first paragraph of Item 4.14 shall be worded as follows:
"4.14. The specialised depositary shall notify the federal executive
body responsible for the securities market and the issuer (manager) about
the a breach in the exercise of control in keeping with the Federal Law
on Mortgage Securities and with the present Regulations before three
working days since the day of revealing the corresponding breach, and if
they violated the requirement for the time of the transfer of the rights
to the mortgage-secured obligation, including the certified pledge, from
the previous creditor to the issuer - not later than the date of the
start of the time of the flotation of bonds with a mortgage cover fixed
by the decision on their issuer (additional issuer)."
Amendments
to the Rules for Keeping the Register of Mortgage Cover,
Approved by Order of the Federal Service for Financial Markets
of Russia No. 05-60/pz-n of November 1, 2005
(approved by Order of the Federal Service
for Financial Markets No. 08-28/pz-n of July 3, 2008)
1. Chapter I shall be supplemented with Item 1.9:
"1.9. The register of the mortgage cover shall be discontinued in
the following cases:
"in case of the recall by the issuer of the documents aimed at the
state registration of the issue (additional issue) of bonds with a
mortgage cover until their state registration;
"in case of the recall by the manager of the rules for trust
management of this mortgage cover before their registration;
"in case of the entry into force of the decision on the invalidation
or nullification of the issue (additional issue) of bonds with this
mortgage cover;
"in case of the sinking of all bonds with this mortgage cover
(mortgage certification of participation).
"The keeping of the register of the mortgage cover is ceased on the
basis of the corresponding order of the issuer (manager) with appended
documents confirming the onset of one of circumstances stipulated by the
present item".
2. Chapter II shall be supplemented with Item 2.16 that reads as
follows:
2.16. If on the date of the approval of the decision on the issue
(additional issue) of bonds with a mortgage cover the claims for
mortgage-secured obligations comprising the mortgage cover, including
those certified by pledges, have not passed to the issuer, the person who
is a creditor for the said claims and has concluded a transaction on the
concession of them to the issuer (hereinafter referred to as the previous
creditor) shall upon the conclusion of the contract, on the basis of
which this property is recorded and stored, and also exercises control
over its disposal, submit the completed questionnaire to the specialised
depositary. The claims provided for by items 2.2, 2.5, 2.8-2.11, 2.14 and
2.15 of the present Rules for the questionnaire of the issuer or manager
shall be applied to the questionnaire of the previous creditor."
3. Item 3.1 shall be supplemented with the eighth paragraph that
reads as follows:
"If on the date of the approval of the decision on the issue
(additional issue) of bonds with a mortgage cover the mortgage secured
claims, which comprise the mortgage cover have not passed from the
previous creditor to the issuer, the register shall also contain
information about the previous creditor provided for by Subitems 1 - 4 of
the present Item".
4. Subitem 5 of Item 3.2.1 shall be supplemented with the second
sentence that reads as follows:
"The date of the acquisition of the claim by the issuer may not be
later of the date of the beginning the period of the flotation of bonds
with a mortgage cover fixed by the decision on their issue (additional
issue)."
5. The first paragraph of Item 3.6 shall be worded as follows:
"3.6. The specialised depositary shall bring in to the register
information about property comprising the mortgage cover, except for the
case provided for by Item 3.7 of these Rules simultaneous with the
inclusion of property in the mortgage cover proceeding from information
contained at the disposal of the issuer (manager) about the entry in the
register of the record about the inclusion of property in the mortgage
cover, and in event of the inclusion before the date of the beginning of
the period of the flotation of bonds with a mortgage cover in the
corresponding mortgage cover of the property, which on the date of the
approval of the decision on the issue (additional issue) has not become
the property of the issuer - at the corresponding disposal of the issuer
and the previous creditor."
6. Item 4.2 shall be worded as follows:
"4.2. The record about the inclusion of property in the mortgage
cover shall entered in the register on the basis of the corresponding
disposal of the issuer (manager), and in case if on the date of the
approval of the decision on the issue (additional issue) of bonds with a
mortgage cover of the claims (including those certified by the pledge)
for the mortgage-secured obligations comprising the mortgage cover, have
not yet passed to the issuer - on the basis of the corresponding disposal
of the issuer and the previous creditor."
7. Subitem 3 of Item 4.3 after the words "were transferred" shall be
supplemented with the words "(will be transferred before the date of the
beginning of the period of the flotation of bonds with a mortgage
cover)".
8. Item 4.4 shall be supplemented by Subitem 4 that reads as
follows:
"4) a copy of the document that expresses the content of the
transaction, the right to which for a pledge will be transferred to the
issuer before the date of the beginning of the period of the flotation of
bonds with a mortgage cover, - in case if on the date of the approval of
the decision on the issue (additional issue) of bonds with a mortgage
cover the rights for the pledge that comprises the mortgage cover has not
as yet passed to the issuer."
9. Items 4.12 and 4.13 shall be worded as follows:
"4.12. The order on the inclusion in the register of the record
about the inclusion of property in mortgage cover shall be signed by the
person, the sample of whose signature is contained in the questionnaire
of the issuer or manager or by the representative of the issuer or
manager who act on the basis of the power of attorney signed by this
person, and in the case provided for by Item 2.16 of the present Rules -
also by the person, the sample of whose signature is contained in the
questionnaire of the previous creditor, or by the representative of the
previous creditor acting on the basis of the power of attorney signed by
this person. If the order is signed by the representative of the issuer
or manager of the previous creditor acting on the basis of the power of
attorney, the copy of such power of attorney shall be appended to the
order.
4.13. The registration inscription shall be made on the mortgage
contract (on the credit agreement or the loan agreement - in case if the
mortgage agreement is included in such contract). A copy of the mortgage
contract shall be appended to the issuer's order on the entry in the
register of the record about the inclusion of the claim in the mortgage
cover. The registration inscription shall certify the state registration
of the mortgage, the pledgee of which is the issuer. If on the date of
the approval of the decision on the issue (additional issue) of bonds
with a mortgage cover the claims for the mortgage-secured obligations
comprising the mortgage cover have not as yet passed to the issuer, - it
is necessary to put down the registration inscription on the said
contract whose copy shall be attached to the order of the issuer and the
previous creditor. This inscription certifies the state registration of
the mortgage, the pledgee of which is the previous creditor.
If the rights of the creditor to the mortgage-secured obligation and
the rights of the mortgage pledgee were turned over to the issuer as a
result of effecting the transaction that requires the state registration,
it is necessary to put down the registration inscription that certifies
the state registration of a transaction on the document that expresses
the content of such a transaction, the copy of which shall be appended to
the issuer's order on the entry in the register of the record about the
inclusion of the claim in the mortgage cover.
The receipt from the Single State Register of Rights to Real Estate
and Transactions with It, the copy of which is appended to the issuer's
order on the entry in the register of the record about the inclusion in
the mortgage cover of the claim for the mortgage-secured obligation,
shall indicate that the issue is the pledgee of their mortgage, and if on
the date of the approval of the decision on the issue (additional issue)
of bonds with a mortgage cover the claims for the mortgage-secured
obligations comprising the mortgage cover have not as yet passed to the
issuer, - the said receipt whose copy is appended to the issuer's order
and the previous creditor shall indicate that the previous creditor is
the pledgee of this mortgage.
In cases when on the date of the approval of the decision or the
issue (additional issue) of bonds with a mortgage cover the claims for
the mortgage-secured obligations comprising the mortgage cover have not
as yet passed to the issuer, the copy of the contract of the mortgage
with the registration inscription certifying the state registration of
the mortgage, the pledgee of which is the issuer, and the copy of the
receipt from the Single State Register of Rights to Real Estate and
Transactions with It, which indicates that the issuer is the pledgee of
this mortgage, shall be presented before the date of the beginning of the
period of the flotation of bonds with a mortgage cover fixed by the
decision on their issue (additional issue)".
10. Item 4.15 shall be supplemented with the second paragraph that
reads as follows:
"If on the date of the approval of the decision on the issue
(additional issue) of bonds with a mortgage cover the rights to a pledge
have not as yet passed to the issuer, it is necessary to put down the
note on the pledge appended to the order of the issuer and the previous
creditor on the entry of the note on the inclusion in the mortgage cover
of the claim for the mortgage-secured obligation certified with the
pledge. This note shall confirm that the owner of the pledge is the
creditor, but if the rights were transferred according to the pledge the
previous creditor shall be a new owner of the pledge. In this case, the
note confirming that the issuer is a new owner of the pledge shall be
made on the pledge before the date of the beginning of the period of the
flotation of bonds with a mortgage cover fixed by the decision on their
time (additional issue)".
11. Item 5.2 shall be worded as follows:
"5.2. Unless otherwise is stipulated by Item 5.11 of the present
rules, the record about the exclusion of property from the mortgage cover
shall later in the register on the basis of the corresponding order of
the issuer or the manager, and if claims for the mortgage-secured
obligations comprising the mortgage cover, including those certified with
pledges have not as yet passed from the previous creditor to the issuer,
- on the basis of the corresponding order of the issuer and the previous
creditor".
12. Item 5.8 shall be supplemented with the second sentence that
reads as follows:
"In the event of the entry of the record about the exclusion from
the mortgage cover of the claim for the mortgage-secured obligation the
specialised depositary shall be obliged in the said period to pass to the
issuer (the manager or the previous creditor) the documents which
confirmed such claim)".
13. Chapter V shall be supplemented with Item 5.11 that reads as
follows:
"5.11. The record about the exclusion of property from the mortgage
cover shall be entered in the register without the corresponding order of
the issuer, if on the date of the beginning of the period of the
flotation of bonds with a mortgage cover in cases provided for by Items
4.13 and 4.15 of the present Rules the copy of the contract for mortgage
with the registration description that certifies the state registration
of the mortgage, the pledgee of which is the issuer, and the copy of the
extract from the Single State Register of the Rights to Real Estate and
Transactions with It, which indicates that the issuer of this pledge of
this mortgage or no note is made on the pledge to confirm that the issuer
is a new owner of the pledge".
14. Item 8.3 shall be worded as follows:
"8.3. the following documents shall be conveyed to the specialised
depositary simultaneously with the transfer of the register:
"the original of the questionnaire of the issuer or the manager, or
the previous creditor;
"the documents appended to the questionnaire of the issuer or
manager, or the previous creditor, and also the documents submitted for
the introduction of changes to the information in the questionnaire of
the issuer, manager or the previous creditor);
the registration log book".