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Maltese Laws |
SECURITISATION ACT
To provide for securitisation, to regulate existing laws in support of securitisation and to introduce new rules on securitisation vehicles.
1st September, 2006
ACT V of 2006, as amended by Legal Notice 427 of 2007 and Act X of
2011.
PART I
GENERAL
"th e co m pet ent au th or it y" means the Malta Financial Services
Authority established by the Malta Financial Services Authority Act;
"financial instruments" has the same meaning assigned to it by the Financial Markets Act;
"investment company" means an investment company with fixed share capital or an investment company with variable share capital,
which respective terms shall have the same meaning respectively assigned to them in the Companies Act;
"the Minister" means the Minister responsible for finance;
"originator" or "assignor" means a person, including Government or any Local Council, who:
(a) transfers by any means securitisation assets to a securitisation vehicle, or
(b) enters into any arrangement with a securitisation vehicle for the purpose of transferring any risk in whole or in
part to the securitisation vehicle, or
(c) obtains a loan or other facility from a securitisation vehicle, such loan or facility being secured directly or indirectly over
securitisation assets, and the term originator or assignor shall also include all its subsidiary undertakings
or affiliates;
"receivable" means a right to receive payment of a monetary sum whatsoever, including a right to receive payment of future
undetermined sums from debtors who are not yet determined;
"risks" means any risks whatsoever, including those arising from any ri gh ts rel a tin g to assets, w h et her m o v a
bl e or i m m o v ab le, tangible or intangible, future or existing, risks resulting from any obligations or activities of third
parties and risks arising from any event or circumstance;
"securities" has the same meaning assigned to it by the Financial
Markets Act;
Short title. Interpretation.
Amended by:
X. 2011.89.
Cap. 330. Cap. 345.
Cap. 386.
Cap. 345.
"securitisation" means a transaction or an arrangement whereby a securitisation vehicle, directly or indirectly:
(a) acquires securitisation assets from an originator by any means, or
(b) assumes any risks from an originator by any means, or
(c) grants secured loan or other secured facility or facilities to an originator,
and finances any or all of the above, directly or indirectly, in whole or in part, through the issue of financial instruments, and
includes any preparatory acts carried out in connection with the above;
"securitisation asset" m e ans any asset, whether existing or future, whether movable or immovable, and whether tangible
or intangible, and where the context so allows, includes risks;
"securitisat ion credit ors" means all creditors or classes of creditors of a securitisation vehicle, in relation to a securitisation
transaction, whose c r edit is secured by a ny me ans whatsoe ve r, whether by security collateral or title transfer collateral,
including, without prejudice to the generality of the foregoing, the originator, any person holding one or more financial instruments
issued by the securitisation vehicle, other than a shareholder of the securitisation vehicle, if applicable, any lender, hedge counterparty,
liquidity provider and credit support provider of the securitisation vehicle and any trustee acting on any of their behalf;
"securitisation vehicle" means a vehicle as referred to in article
3;
"security collateral" means collateral provided by a collateral
Cap. 249.
Legal form of securitisation vehicle.
provider by way of security in favour of, or to, a collateral taker, and where the full ownership of the collateral remains with
the collateral provider, when the security right is established;
"t it le transfer co lla teral" m eans collateral pr ov id ed by a collateral provider, including by repurchase agreem
ent s and assignments by way of security, whereby the collateral provider transfers full ownership of the collateral to a collateral
taker for the purpose of securing or otherwise covering the performance of any obligation;
"underlying debtor" means, where applicable, a person whose ob li gati on t o w a rd s an or ig in at or h a s been th e
o b j e ct o f a securitisation transaction;
"writing" shall have the sam e meaning assigned to it in the Interpretation Act and shall include facsimile transmissions and electronic mail communications.
PART II
SECURITISATION VEHICLES
(a) a company, including an investment company; (b) a commercial partnership;
(c) a trust created by a written instrument; or
(d) any other legal structure which the competent authority may, by notice, permit to be used for a securitisation
transaction,
est a bli s h e d u nder th e law s of Malt a or th ose of a jurisdict i on recognised by the competent authority.
(2) When a securitisation vehicle is established under this Act: (a) the objects and purposes of such vehicle shall be
limited to such matters which are necessary to carry out all or any transactions intended or required to implement or participate
in a securitisation transaction
and all related and ancillary acts including, without limitation, the acquisition, management and collection of credits and other
receivables or other securitisation
assets, the assumption of risks, the granting of secured loans, the issue of financial instruments or the borrowing
of funds to finance the acquisition of assets
or assumption of risks, the engagement of service providers to administer or support its activities and the entering into derivative
instruments; and
(b) its constitutive document shall state expressly that it is a vehicle established subject to the provisions of this Act.
(2) Securitisation vehicles established under this Act may not carry on any trade or business, other than that relating or ancillary to the securitisation transaction.
Securitisation transactions.
5. Notwithstanding the provisions of any other law, and whatever the nature of the securitisation assets acquired or risks assumed
by the securitisation vehicle, the securitisation vehicle shall not be required to obtain any licence, permit or authorisation other
than as provided in this Act or in regulations made under the same Act and in particular, but without limitation to the generality
of the foregoing, shall not require any licence under the Investment Services Act, the Banking Act, the Financial Institutions Act, and the Insurance Business Act. The issuing and offering of financial instruments by a securitisation vehicle shall however still continue to be governed by the
relevant provisions of the Companies Act and the Investment Services Act:
Provided that nothing contained in this article shall affect any of the provisions of the Income Tax Acts.
Securitisation vehicle not required to obtain any licence.
Cap. 370. Cap. 371.
Cap. 376.
Cap. 403.
Cap. 386.
6. Securitisation vehicles shall not be considered to be coll ective in vestment schemes as d e fin e d in th e Investment Services Act:
Provided that the competent authority may designate by notice that certain categories of securitisation vehicles shall be
Securitisation vehicles not be considered as collective investment schemes.
Cap. 370.
collective investment schemes, and in such a case the competent authority may determine the extent to which the provisions of the Investment Services Act, shall apply to the said cat egories of securitisation vehicles.
Securitisation vehicle separate and independent from originator. Cap. 386.
7. No proceedings taken in relation to the originator under the Companies Act, or any other law, including any dissolution and winding-up proceedings, any company recovery procedure, any company reconstruction
and any proceedings affecting creditors’ rights generally shall have any effect on:
(a) the securitisation vehicle;
(b) any securitisation assets acquired or risks assumed by the securitisation vehicle, as well as any cashflow or other asset of
the securitised vehicle;
(c) any payments due by the underlying debtors in connection with the securitised assets.
Delegation of administration duties and functions by securitisation vehicles.
Transfer of securitisation assets.
(2) When such administration has been delegated by the securitisation vehicle to the originator, the latter shall not require
any licence from or other recognition by the competent authority under any applicable law.
(3) Unless the agreement between the securitisation vehicle and such person specifically pr ovides otherwise, the person
delegated with such administration shall be obliged to segregate su ch assets fro m h i s own and tho s e of other custo m ers.
Such segregation shall clearly identify the receivables or securitisation assets which belong to the securitisation vehicle and such
person shall keep detailed records of all assets received and disposed of.
(4) Any assets held by any such third party for a securitisation vehicle shall be considered as being held on trust by such third
party for the benefit of the securitisation vehicle.
PART III
THE TRANSFER OF SECURITISATION ASSETS
(2) Subject to the other provisions of this Act, such transfer of securitisation assets from an originator to a securitisation
vehicle shall be valid and enforceable in accordance with its terms and with this Act and shall not be subjec t to re-characterisation
for any reason whatsoever.
(3) The provisions set out in this Act shall apply mutatis mutandis to all transfers made by an originator to a securitisation vehicle or securitisation creditors, as well as to all transfers made
by a securit i sation vehicle to other securitisation vehicles or securitisation creditors.
(a) subject to annulment, rescission, revocation or termination, variation or abatement by any person and for any reason
whatsoever;
(b) subject to any rights of the creditors of the originator for any reason whatsoever;
(c) subject to any rights of a liquidator, provisional administrator, receiver, curator, controller, special controller
of the originator or other similar officer of the originator for any reason whatsoever.
(2) The provisions of subarticle (1) shall apply notwithstanding any underlying contractual or statutory prohibition or restriction
on the originator to assign in whole or in part the securitisation asset to any third part y. Th e Minister, acti ng on the advi
ce of t h e competent authority, may by notice declare types of contracts to which this provision shall not apply.
(3) The provisions of subarticles (1) and (2) shall not apply:
(a) when there is fraud on the part of the securitisation vehicle, or
(b) in respect of any assignment entered into at a time at which the securitisation vehicle knew or ought to have known that an
application for the dissolution and winding up of the originator by reason of insolvency was pending, or that the originator
had taken formal steps under any applicable law to bring about its dissolution and winding up by reason of insolvency;
Provided that, unless the securitisation vehicle had actual knowledge of such m atter, for the purposes of paragraph (b), it sh all be deemed t h at th e secu ri tisat ion v e hicl e cou l d no t have known that an application for the dissolution and
winding up of the origi n ator by reason of insolvency was pendi ng, o r that the originator had taken formal steps under any applicable
law to bring about its dissolution and winding up by reason of insolvency, if no docu me nt or ot her record was regi stered to
this effect with the Registrar of Companies and was publicly accessible.
(4) In case of an assignment in favour of a securitisation vehicle, it shall not be required that the assignment have
a price, or when a price is agreed, a fixed or determinate price. It shall also be lawful for the consideration to be determinable
by reference to any f o rmul a as may be agreed , or be in consi d erat ion of an d i n accordance with the terms of a securitisation
transaction.
(5) Unless the terms of any transfer to a securitisation vehicle provides otherwise, or the securitisation vehicle expressly assumes
Assignments.
Cap. 16.
any obligation, the underlying debtor shall have no right or claim against the securitisation vehicle in connection with any obligation
relating to the securitisation assets. The underlying debtor shall continue to enjoy all rights under the assigned contract against
the originator who shall remain solely responsible for the performance of all obligations thereunder.
(6) An assignment in favour of a securitisation vehicle is not valid unless it is evidenced in writing. The assignment of assets
to a securitisation vehicle is complete and the ownership of the asset is ipso ju re ac quire d by the sec u ritisation vehicle a s s o on as the assignment is reduced to writing in accordance with this Act and the
provisions of article 1469 of the Civil Code shall not apply.
Assignment of existing securitisation assets.
(a) the type of debt or asset or contract giving rise to the debt;
(b) the class or type of debtors;
(c) the repayment period when the debts fall due;
so as to enable any interested party to reasonably determine which receivabl es are i n cluded in the assig n ment an d it shall not
be necessary to specify the name of the debtor or debtors, the date or the amount of any particular debt.
(2) Where the parties to an assignment claim that a debt is not included in the assignment, the matter shall be resolved as provided
for in the a s signment, and the ag gregate price, if any, for the transfer shall be adjusted, if the claim is justified, by the
value of the disputed debt being reduced therefrom, and such adjustment shall not in any way affect the validity or effects of the
assignment of other receivables.
Assignment of future receivables.
(2) There shall be indicated as: Features A -
(a) the type of debt or asset or contract giving rise to the debt;
(b) the class or type of debtors;
(c) the assets, including future assets, which give rise to the receivables; and
Features B -
(a) the time period during which the debt may arise; (b) the repayment period when the debts may fall due.
(3) An assignment of one or more future receivables is deemed to be effective at the time of the conclusion of the original contract
of assignment between the assignor and the assignee, without a new act of transfer being required to assign each such receivable
on it coming into existence.
(4) A notice of assignment duly given in terms of this Act at the time of the securitisation transaction shall be valid and effective
in relation to the future receivable and need not be repeated once the receivable comes into existence.
(5) It shall also be lawful for future receivables to be the subject of any security collateral or title transfer collateral.
13. (1) Notwithstanding the provisions of the Civil Code, in case of an assignment of a securitisation asset to a securitisation vehicle, the debtor will be deemed to be notified of the
assignment upon one of the following events taking place at the option of the assignor or assignee:
(a) on notification to the debtor in writing by any means;
or
(b) on the publication of a notice as follows:
(i) in a daily newspaper circulating wholly or mainly in Malta, or
(ii) where it appears that the majority of the debtors reside outside Malta, in a daily newspaper circulating wholly
or mainly in such other jurisdiction outside Malta, or
(c) where there is doubt as to where the majority of the debtors reside, in a daily newspaper which has wide international circulation.
(2) Such notification shall be effective for all the purposes and effects of the Civil Code with regard to third parties, including the debtor, as follows:
(a) if notification is made in terms of article 187 of the Code of Organization and Civil Procedure, on the date of service and the provisions of the Code of Organization and Civil Procedure shall determine such
date of service; or
(b) if notification is made by mail, two days after despatch by mail by the assignor or assignee of the notice in writing to the
debtor ’s last known address; or
(c) if notification is made by publication in a newspaper, the time of the opening of business in the place of publication
of the notice in the newspaper; or
(d) if notification is made by any electronic means, one day after despatch of the electronic notification,
Form of notification. Cap. 16.
Cap. 16.
Cap. 12.
Cap. 16.
as the case may be, unless the said notice expressly mentions a later date for the effects to commence.
(3) The same rules shall apply, mutatis mutandis, to notifications required in relation to the pledge of securitisation assets, and article 1966 of the Civil Code shall be cons trued accordingly.
(4) If, during the period between the date of assignment of the securitisation assets and the notification as per the above sub-
articles, the assignor shall have become insolvent, such insolvency shall not have any ef fect on the said assignment and any notification
of the assignment made in accordance with the above sub-articles shall be valid and effective.
(5) The notice of assignment shall identify the features of the class of receivables as set out in articles 11 or 12, as the case
may be.
Modification of certain provisions of the Civil Code. Cap. 16.
14. (1) The following provisions of the Civil Code shall not apply in case of an ass i gnment of a securitisation asset to a securitisation vehicle:
(a) article 1483(1);
(b) article 1056(1); and
(c) article 2013(3).
Cap. 16. (2) The following provisions of the Civil Code shall apply subject to the modifications herein stated:
Cap. 16. (a) article 1968(1) of the Civil Code shall not apply, and where the thing pledged to the securitisation vehicle is a debt, the
securitisation vehicle shall, unless otherwise agreed with the originator, be responsible for the collection of such
debt on maturity and the securitisation vehicle may place the moneys or other things received either as agreed or, failing
such agreement, may hold the same as security for the debt until due;
(b) without prejudice to the right of the parties to assign rights by means of public deeds and register the same
Cap. 16.
in accordance with articles 2051 and 2052 of the Civil
Code, when a right arising from a public deed,
including any hypothecary rights, is transferred to or from a securitisation vehicle, article 1470(2) shall not apply; and
Cap. 16. (c) articles 1980 to 1984 of the Civil Code shall not apply and a securitisation vehicle shall have a right of use over and the
right to sub-pledge any securitisation assets which have been pledged, assigned or delivered to it for the purpose of a securitisation
transaction.
Cap. 16. (3) For the purposes of article 1475 of the Civil Code and for the purposes of a securitisation transaction -
(a) unless the assignment expressly provides otherwise, the assignment of a debt shall also include every
suretyship, warranty or indemnity for the payment of the debt;
(b) the assignment of a debt shall include every suretyship, warranty or indemnity, accessory to the debt
and this notwithstanding any contractual prohibition or restriction against such assignment of the debt in the contract
of suretyship, guarantee or indemnity. The Minister, acting on the advice of the competent authority, may by notice declare
types of suretyships, guarantees or indemnities to which this provision will not apply; and
(c) any notices of assignment made to the debtor or class of debtors in accordance with this Act, shall have effect in
relation to all persons granting any suretyship, guarantee or indemnity without the need of further notice or other formalities
in their regard.
(2) The securitisation vehicle may assume risks by acquiring asset s , gu ar an teei ng or assumi ng ob lig at ion s , enteri ng
int o derivative contracts or by committing itself in any other way.
(3) Unless the parties expressly determine otherwise in writing, an assumption of risk and any hedging or derivative transaction
or product entered into in the context of a securitisation transaction for whatever reason shall not be de emed to be a contrac
t of insurance for all effects and purposes at law.
The assumption of risks.
(a) holders of securities issued by a securitisation vehicle shall have a privilege over the securitisation assets and such privilege
shall rank prior to all other claims at law, except for other securitisation creditors who enjoy a prior ranking granted to them
with the consent or knowledge of the said holders; and
(b) the said privilege extends to the proceeds derived from the securitisation assets, to any funds received in payment and
to the assets, if any, in which they are invested.
(2) If an acquisition vehicle is used in a securitisation transaction and such vehicle is different from the securities
issuing vehicle, the said privilege shall arise over the securitisation assets of the acquisition vehicle.
(3) The said privilege arises by operation of law and does not need to be registered in any register.
(4) The conditions of issuance of any financial instruments by the securitisation vehicle shall be binding upon the securitisation
ve hicle, the securitisation creditors or other persons who have g i ven t h ei r consent t h eret o, in clu d ing in the case
wh en the securitisation vehicle is placed under any dissolution and winding-
Securitisation creditors.
up proceedings, company rec ove ry procedure, company reconstruction or any proceedin gs affecting creditors’ rights generally.
(5) It shall not be lawful for any person, other than a securitisation creditor, to demand the issuance or enforcement
of any precautionary act or warrant against the securitisation vehicle, except when the court is satisfied that there has been fraud
on the part of the securitisation vehicle.
Private International Law rules.
(2) The Minister, acting on the advice of the competent authority, may make rules on the law applicable to matters relating
or ancillary to securitisation tran sact io ns, where th e law o f a country, other than Malta, may be applicable including, without
limitation:
(a) rules on the proper law of any contract;
(b) formal and material validity of any contract;
(c) rights of third parties upon the completion of any contract;
(d) | proprietory issues relating to | securitisation |
(e) | transactions; and the priorities of rights of third parties. |
Securitisation vehicles.
Public securitisation vehicles. Amended by:
L.N. 427 of 2007.
PART IV
REGULATION OF SECURITISATION VEHICLES
Cap. 386.
(2) A public securitisation vehicle shall, before issuing finan c ial in stru ments to the public, app l y in writ
ing to the competent authority for a licence under this Act.
(3) All applications for a licence for public securitisation vehicles sh al l be i n such form and a ccompanied by such
information, and shall conform with such requirements as may be prescribed from time to time by directive and an application may
only be withdrawn by written notice to the competent authority at a time before it has been granted or refused.
(4) The competent authority shall have the power to require any public securitisation vehicle to provide such information as it
s h all deem necessary for the pu rpo s es of d e termi n in g an application for a licence or for the purposes of determining whether
to restrict or revoke a licence.
(5) No public securitisation vehicle shall be granted a licence unless:
(a) the public securitisation vehicle has an adequate organisation and adequate resources to exercise its business;
(b) all persons who will effectively direct the business of the public securitisation vehicle are suitable persons to ensure its
prudent management; and
(c) the public securitisation vehicle satisfies such other conditions as may be laid down by directives issued by the competent
authority.
(6) The competent authority shall determine each application for a licence within one month of receipt of the application or, if
the application does not comply with subarticle (3), or additional information is required, within one month of compliance with the
said subsection or the furnishing of the information as the case may be, which ever be the later. In any event an application shall
be determined within two months of its receipt.
(7) The competent authority shall determine an application by doing any of the following:
(a) granting a licence without conditions;
(b) granting a licence subject to such conditions as it may deem appropriate;
(c) refusing to grant a licence; and if it refuses an application it shall inform the applicant, in writing, of the reasons
for the refusal.
(8) Where the competent authority for any reason fails to determine an application for a licence within the time prescribed
und er su barti c le (6 ), such fact sha l l be de eme d to constitute a refusal to grant a licence.
(9) (a) Without prejudice to any of the powers conferred on it by this Act, the competent authority may, whenever it deems it necessary,
give, by notice in writing, such directives as it may d eem appropriate in the circumstances; and any person to whom or to
which the notice is given shall obey, comply with and otherwise give effect to any such directive within the time and in
the manner stated in the directive.
(b) The power to give directives under this subarticle shall include the power to vary, alter, add to or withdraw any directive,
as well as the power to issue new or further directives.
(c) Where the competent authority is satisfied that the circumstances so warrant, it may at any time make public any
directive it has given under any of the provisions of this subarticle.
(10) A licence shall automatically cease to have any effect if the holder:
(a) renounces its licence; or
(b) does not commence business pursuant to the licence within twenty-four months of its issue or within such other period of time
as may be specified in the licence; or
(c) is declared bankrupt or goes into liquidation.
(11) The competent authority may impose restrictions on a
lic e nc e or may re voke a licen ce in any of the following
circumstances:
(a) if any document or information accompanying such an application for a licence or any information given in connection therewith
is false in any material particular or if the holder of a licence conceals from, or fails to notify to the competent authority
any document or information or change therein which it was its duty to reveal or notify under this Act; or
(b) if the holder fails to comply with any of the provisions of this Act or a directive issued thereunder or with the conditions under
which the licence is granted; or
(c) if the holder is likely to become unable to meet its obligations.
(12) The competent authority shall have the power to vary or remove any restrictions imposed under the foregoing subarticle.
(13) Where the competent authority intends to restrict or revoke a licence or to vary any restriction, it shall serve written notice
of its intention to the public securitisation vehicle; such notice shall specify the grounds upon which the competent authority intends
to t a ke actio n and shall spe c ify a period i n w h ic h t h e p u b lic securitisation vehicle shall be entitled to make representations
to the competent authority as to why such action should not be taken. Unless the competent authority decides that the matter is urgent,
it shall not impose or vary any restriction or revoke a licence before the expiry of such period.
(14) Any person who is aggrieved by a decision of the competent authority:
(a) to refuse an application for a licence;
(b) to impose any condition on the grant of a licence; (c) to impose or vary a restriction;
(d) to revoke a licence; or
(e) by failure of the competent authority to determine an application for a licence under subarticle (7),
may appeal against the decision to the Financial Services Tribunal within such period and under such conditions as established under
the Malta Financial Services Authority Act.
(15) Any person who contravenes or fails to comply with the provisions of subarticle (2), or contravenes or fails to comply with
any condition, obligation, requirements, directive or order made or given under this article, shall be guilty of an offence.
(16) A person guilty of an offence under the provisions of subarticle (15) shall, on conviction, be liable to a fine (multa) not exceeding one hundred and sixteen thousand and four hundred and six t y-eight eu ro and sixty - seven cents (1 1 6 ,468
.67). No proceedings for an offence under this article shall be commenced without the consent of the Attorney General.
Cap. 330.
(2) In addition and without prejudice to the generality of the foregoing, the competent authority may issue rules as it shall deem fit for:
Rules.
(a) the purpose of establishing conditions which need to be satisfied by a public securitisation vehicle in order to obtain a licence
under this article;
(b) the regulation of the custody of assets and financial instruments of the public securitisation vehicle; and
(c) the purposes of requiring any periodical statements of the public securitisation vehicles.
PART V
MISCELLANEOUS
(2) Within the context of a securitisation transaction, in so far as obligations arising from the Data Protection Act are concerned:
(a) any transfer of personal data shall be deemed to be for a purpose that concerns a legitimate interest of the transferor
and transferee of such data, unless it is shown that such interest is overridden by the interest to protect the fundamental
rights and freedoms of the data subject and in particular the right to privacy; and
(b) any transfer of personal data to a third country that does not ensure an adequate level of protection within the meaning of article
27(2) of the Data Protection Act shall not require the authorisation of the Data
Professional secrecy, confidentiality and data protection.
Cap. 440.
Cap. 440.
Protection Commissioner, where the controller provides adequate safeguards, which may result particularly
by means of appropriate contractual provisions, with respect to the protection of the privacy and fundamental
rights and freedoms of individuals and with respect to their exercise.
(3) For the purposes of the foregoing paragraphs, data or in form at io n whi c h i s tr an sferred between p e r s ons
wi th in th e context of a securitisation transaction shall be deemed to include data or information tr ansf er red between th e
origi n at or and the securitisation vehicle, or between one securitisation vehicle and another, or between the securitisation vehicle
and any person delegated with administration duties and functions, or between the securitisation vehicle and a representative of
the investors, or between the originator or securitisation vehicle and any cr edit ra ting agencies , or be twee n the or igin ator
or the securitisation v e hi cle a nd any cou n t e r- party in a derivative contract, lender, liquidity provider or credit support
provider.
Miscellaneous provisions.
(a) for the constitutive documents of the securitisation vehicle:
(i) to vest the power to appoint directors in any securitisation creditor or class thereof, to the exclusion of other
persons;
(ii) to vest the power to demand or place the securitisation vehicle under any dissolution and winding-up proceedings,
company recovery procedure, company reconstruction or any proceedings affecting creditors’ rights generally, in any
securitisation creditor or class thereof, to the exclusion of other persons;
(b) for the securitisation vehicle to enter into any agreement which contains provisions by which securitisation
creditors or any shareholder of the securitisation vehicle, including the originator, accept to restrict or waive their
right to commence the process leading to dissolution and consequential winding-up proceedings, company recovery procedure,
company reconstruction or any proceedings affecting the rights pertaining to creditors generally in connection with a securitisation
vehicle, or to transfer such a right to any person; and
(c) for the securitisation vehicle to enter into an agreement with the originator to the effect that the originator
is given rights by the securitisation vehicle over all or part of the securitisation assets of the securitisation vehicle
which may be available after payment of the securitisation creditors.
Cap. 386. (2) The provisions of article 110(1) of the Companies Act shall not apply to the provision of financial assistance by a securitisation
vehicle, unless the securitisation vehicle is constituted as a public limited liability company.
(3) Unless otherwise provided for in the constitutive documents of the securitisation vehicle, a securitisation
vehicle shall have the power to issue financial instruments whose value or yield is linked to specific compartments, assets or risks,
or whose repayment is subject to the repayment of other instruments, certain claims or certain categories of shares. If the acquisition
vehicle is di f f erent from the issuing vehicle, the value, yield and the conditions of repayment may also be linked to the assets
and the li abilities of the acquisition vehi cle. Hold ers of such fina ncial instruments shall enjoy the privilege arising by virtue
of article
16(1).
(4) Any contract entered into in connection with a securitisation transact ion shal l be valid and enforceable
i n accordance with its terms, and where the parties agree in writing as to the effects that will arise on the occurrence of a specified
event, it shall not be necessary for e ither party to obtain any court judgement or declaration confirming that the specified event
has occurred or otherwise.
(5) The provisions of Title XVII of the Civil Code or of any other part of the Civil Code or of any other law in so far as they limit or restrict the charging of interest and compound
interest shall no t a ppl y to d e bt s o r any o t h e r ob li gat i o n s ari s in g wit h i n th e context of a securitisation
transaction under this Act; and it shall be lawful for the amount of interest due in respect of any such debt or other obligation
to exceed the amount of capital due in respect of any such debt or obligation.
(6) No court or arbitral tribunal may grant or sanction any moratorium or stay whatsoever in connection with a securitisation
vehicle.
Cap. 16.
(2) Regulations made under any of the provisions of this Act may be made in the English language only.
Power to make regulations.
(a) the value of the securitisation transaction or the value of the financial instruments issued by the securitisation
vehicle exceeds such minimum value as may be stated in a notice issued by the competent authority from time to time, or
(b) a specific securitisation transaction has been otherwise approved in writing by the competent authority.
Applicability of this Act.
English text to prevail.
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