SECURITISATION ACT

SECURITISATION

CHAPTER 484

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 Acts

X of 2011 , XX of 2013 and V of 2020.

PART I

GENERAL

The short title of this Act is the Securitisation Act.

In this Act, unless the context otherwise requires

"the competent authority" 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 the regulation of

financial services;

"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 rights relating to assets, whether movable or immovable,

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;

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"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" means any asset, whether existing or

future, whether movable or immovable, and whether tangible or

intangible, and where the context so allows, includes risks;

"securitisation creditors" means all creditors or classes of

creditors of a securitisation vehicle, in relation to a securitisation

transaction, whose credit is secured by any means whatsoever,

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

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;

"title transfer collateral" means collateral provided by a

collateral provider, including by repurchase agreements 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

obligation towards an originator has been the object of a

securitisation transaction;

"writing" shall have the same meaning assigned to it in the

Interpretation Act and shall include facsimile transmissions and

electronic mail communications.

PART II

SECURITISATION VEHICLES

(1)

A securitisation vehicle may be

(a) a company, including an investment company;

(b) a commercial partnership;

(c) a trust created by a written instrument; or

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(d) any other legal structure which the competent

authority may, by notice, permit to be used for a

securitisation transaction,

established under the laws of Malta or those of a jurisdiction

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.

(1) A securitisation transaction may take place through the

use of more than one securitisation vehicle, whether established

under the laws of Malta or otherwise, and the provisions of this Act

shall be construed accordingly.

(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.

Notwithstanding the provisions of any other law, and

whatever the nature of the securitisation assets acquired or risks

assumed by the securitisation vehicle, but without prejudice to article

5A, 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, save for what is provided in

article 5A, 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 Act and the Income Tax

Management Act.

Unless otherwise provided in the Insurance Business Act

or in any regulations issued thereunder, the provisions of this Act

shall not apply to a reinsurance special purpose vehicle established

and regulated by any regulations made under the Insurance

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Business Act in terms of article 64 of the said Act

Provided that nothing contained in this article shall affect any

of the provisions of the Income Tax Act and the Income Tax

Management Act in relation to such securitisation vehicles.

Securitisation vehicles shall not be considered to be

collective investment schemes as defined in the Investment

Services Act

Provided that the competent authority may designate by

notice that certain categories of securitisation vehicles shall be

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 categories of

securitisation vehicles.

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.

(1) The securitisation vehicle may delegate the

management responsibility for the day to day administration of the

securitisation vehicle or of the assets or risks thereof, including the

collection of any claims, to any third party, including the originator.

(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 provides otherwise, the person

delegated with such administration shall be obliged to segregate

such assets from his own and those of other customers. 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

(1) The originator and the securitisation vehicle shall be at

liberty to select any method of transferring the securitisation assets,

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including, without limitation, by novation, sale, assignment and

declaration of trust.

(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 subject 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 securitisation vehicle to other securitisation vehicles or

securitisation creditors.

(1) When a securitisation asset is assigned to a

securitisation vehicle in accordance with this Act, such assignment

shall be treated as final, absolute and binding on the originator, the

securitisation vehicle and on all third parties and such assignment

shall not be

(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 party. The Minister, acting on the advice of the

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 matter, for the purposes of paragraph (b), it

shall be deemed that the securitisation vehicle could not 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, if no

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document or other record was registered 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

formula as may be agreed, or be in consideration of and in

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

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 jure acquired by the securitisation vehicle as soon 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.

(1) The assignment of a securitisation asset to a

securitisation vehicle shall be valid and effective if the assignment

identifies at least two of the following features of the class of

receivables being subject to the assignment

(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

receivables are included in the assignment and 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 assignment, and the aggregate 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.

(1) It shall be lawful for future receivables of an

originator, including future claims against future debtors, to be the

subject matter of an assignment in favour of a securitisation

vehicle. Such an assignment shall be valid and effective if it

identifies at least one of the features of the class of receivables

being subject to the assignment from each of the Features A and

Features B, listed in subarticle (2), in order to enable any interested

party to reasonably determine which receivables are included in the

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assignment and it shall not be necessary to specify the name of the

debtor or debtors, the date or the amount of any particular debt.

(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.

(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

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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,

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 construed

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

s h a l l n o t h a v e a n y e ff e c t o n t h e s a i d a s s i g n m e n t a n d a n y

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

(1) The following provisions of the Civil Code shall not

apply in case of an assignment of a securitisation asset to a

securitisation vehicle

(a) article 1483(1);

(b) article 1056(1); and

(c) article 2013(3).

(2) The following provisions of the Civil Code shall apply

subject to the modifications herein stated

(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

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

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apply; and

(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.

(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.

(1) Any and all risks can be assumed by a securitisation

vehicle and securitised in accordance with this Act.

(2) The securitisation vehicle may assume risks by acquiring

assets, guaranteeing or assuming obligations, entering into

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 deemed to be a contract of

insurance for all effects and purposes at law.

(1) Unless otherwise specifically determined in writing in

the terms of issue of securities

(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.

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(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

vehicle, the securitisation creditors or other persons who have

given their consent thereto, including in the case when the

securitisation vehicle is placed under any dissolution and winding-

up proceedings, company recovery procedure, company

reconstruction or any proceedings 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.

(1) Parties to a securitisation transaction shall be free to

choose any law to govern contracts relating to or ancillary to a

securitisation transaction.

(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 transactions, where the law of 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

transactions; and

(e) the priorities of rights of third parties.

PART IV

REGULATION OF SECURITISATION VEHICLES

No vehicle established under the laws of Malta shall

commence business as a securitisation vehicle in or from within

Malta unless it has given notice on the appropriate form to the

competent authority that it intends to enter into one or more

securitisation transactions.

(1) For the purposes of this article

(a) a public securitisation vehicle shall mean a

securitisation vehicle which issues or which is

desirous of issuing financial instruments to the public

on a continuous basis; and

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(b) the term "issuing financial instruments to the public"

shall have the same meaning assigned to the term

"offers made to the public", as set out in article 2(3) of

the Companies Act.

(2) A public securitisation vehicle shall, before issuing

financial instruments to the public, apply in writing to the

competent authority for a licence under this Act.

(3) All applications for a licence for public securitisation

vehicles shall be in such form and accompanied 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

shall deem necessary for the purposes of determining 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, whichever 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

under subarticle (6), such fact shall be deemed to constitute a

refusal to grant a licence.

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(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 deem 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

(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

licence or may revoke a licence 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

take action and shall specify a period in which the public

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

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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

s i x t y - e i g h t e u r o a n d s i x t y - s e v e n c e n t s ( 11 6 , 4 6 8 . 6 7 ) . N o

proceedings for an offence under this article shall be commenced

without the consent of the Attorney General.

(1) For the better carrying out of the provisions of this Act or

of the provisions of any regulations relating to securitisation vehicles

or securitisation transactions, the competent authority may, from time

to time, issue and publish rules as may be necessary or appropriate in

connection therewith. The rules shall be binding on securitisation

vehicles and securitisation creditors and other persons as may be

specified therein.

(2) In addition and without prejudice to the generality of the

foregoing, the competent authority may issue rules as it shall deem

fit for

(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

(1) Any data or information which is transferred between

persons within the context of a securitisation transaction shall

accordingly be transferable without any restriction or limitation,

although such data or information shall retain its secret or

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confidential status for other effects and purposes.

(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 10 of the Data Protection Act

shall not require the authorisation of the Data

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

information which is transferred between persons within the

context of a securitisation transaction shall be deemed to include

data or information transferred between the originator 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 credit

rating agencies, or between the originator or the securitisation

vehicle and any counter-party in a derivative contract, lender,

liquidity provider or credit support provider.

(1) Notwithstanding the provisions of any other law, it

shall be lawful

(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

SECURITISATION

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.

(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

different from the issuing vehicle, the value, yield and the

conditions of repayment may also be linked to the assets and the

liabilities of the acquisition vehicle. Holders of such financial

instruments shall enjoy the privilege arising by virtue of article

16(1).

(4) Any contract entered into in connection with a

securitisation transaction shall be valid and enforceable in

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 either 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

not apply to debts or any other obligations arising within the

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.

(1) The Minister, acting on the advice of the competent

authority, may make regulations as may be required for carrying

into effect any of the provisions of this Act and may amend or

revoke such regulations.

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(1A) Without prejudice to the generality of the foregoing, the

Minister, acting on the advice of the competent authority, may make

regulations to provide for and regulate the payment by any person,

body, company or securitisation vehicle, as the case may be, of fees

and such other charges in respect of any request, application or other

matter that may be submitted to the competent authority under this Act

including the fees and charges in respect of any permission, licence,

authorisation, registration, recognition, exemption or other benefit, as

well as fees and charges in respect of the competent authority’s

regulatory, supervisory or investigative functions, payable to the

competent authority in respect of any matter provided for, by or under

this Act or any regulations made under this article, as may be

prescribed.

(2) Regulations made under any of the provisions of this Act

may be made in the English language only.

This Act shall only apply

to

securitisations

or

securitisation transactions where

(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.

In this Act and in any rules made thereunder, if there is any

conflict between the English and Maltese text, the English text

shall prevail.