Revised Laws of Saint Lucia (2023)

PART III
ACQUISITION OF ASSETS FROM APPROVED FINANCIAL INSTITUTIONS

ARTICLE 8
INTERPRETATION

In this Part, unless the contrary intention appears,

1.  

   (a)     a reference to “the Corporation” shall be construed as a reference to either the Corporation or a subsidiary established by the Corporation to acquire an asset;

1.  

   (b)     “acquirer” means any person to whom the Corporation disposes or transfers an asset under Part III;

1.  

   (c)     “seller” means an approved financial institution from whom the Corporation acquires an asset.

ARTICLE 9
APPROVED FINANCIAL INSTITUTION

(1)     The Monetary Council on the recommendation of the Central Bank may determine classes of financial institution as approved financial institutions based on the following criteria —

1.  

   (a)     the financial institution is licensed under the Banking Act; or

1.  

   (b)     the financial institution is a savings institution that undertakes deposit taking and provides loans,

     and is systemically important.

(2)     For the purposes of paragraph (1), “systemically important” means a financial institution that —

1.  

   (a)     is interconnected to the rest of the financial system in the Currency Union and its failure will cause significant disruption to the financial system in the Currency Union; or

1.  

   (b)     provides financial services that is non-substitutable.

(3)     The list of approved financial institutions shall be published by notice in the official Gazette in each member territory.

ARTICLE 10
ACQUISITION OF ASSETS

(1)     The Corporation may with the consent of the seller

1.  

   (a)     acquire any asset through vesting pursuant to this Part; or

1.  

   (b)     acquire any asset through other means pursuant to the provisions of other applicable law other than those set forth in this Part.

(2)     The seller of the asset shall disclose to the Corporation in writing prior to the vesting date or such other acquisition date all specific claims within his knowledge relating to the asset.

(3)     The criteria for the selection of assets to be acquired from approved financial institutions shall be determined by the Board, and shall be consistent with the purposes of the Corporation and in particular the resources available to the Corporation.

(4)     Without prejudice to the generality of paragraph (5), the Corporation may, in deciding whether to acquire an asset from an approved financial institution, take into account —

1.  

   (a)     whether any security that is part of the asset is adequate;

1.  

   (b)     whether any security that is part of the asset has been perfected;

1.  

   (c)     the value of that security;

1.  

   (d)     whether the relevant credit facility documentation is defective or incomplete;

1.  

   (e)     whether the approved financial institution or any other person has engaged in conduct concerning the asset that is or could be prejudicial to the position of the Corporation;

1.  

   (f)     whether the approved financial institution has complied with its contractual and legal obligations and its obligations in relation to the asset;

1.  

   (g)     the quality of the title to any property held as security that is part of the asset;

1.  

   (h)     any applicable legal, regulatory, or planning requirement that has or has not been complied with in relation to land held as security that is part of the asset;

1.  

   (i)     any other matter that the Corporation considers relevant.

(5)     The Corporation may, from time to time, specify the terms and conditions that are to apply generally to the acquisition of assets.

(6)     The acquisition of assets under this Article shall be limited to a period of 6 years from the date of commencement of business by the Corporation. (Amended by S.I. 114/2021 and S.I. 137/2022)

(7)     The Corporation may establish an entity or nominate its subsidiary, if any, as the entity to acquire any asset of an approved financial institution.

ARTICLE 11
POWER OF VESTING AND TRANSFER

(1)     Where the Corporation acquires an asset or disposes of an asset, the asset shall, on and from the vesting date or as the case may be transfer date, vest in the Corporation or be transferred by the Corporation to an acquirer.

(2)     A vesting or transfer under paragraph (1) shall have effect according to the provisions of this Agreement, and notwithstanding any other law, shall be binding on any person affected in the manner provided in this Agreement.

(3)     The Corporation shall, on and from the vesting date or as the case may be transfer date, acquire or dispose all the present and future rights, estates and interests in, and disclosed obligations with respect to, such asset, freed from any encumbrance or claims except for registered interests prevailing as at the vesting or transfer date and disclosed claims.

(4)     Without prejudice to paragraphs (1), (2) or (3), in relation to an asset vested in the Corporation or transferred by the Corporation to an acquirer —

1.  

   (a)     each obligor with respect to such asset shall be deemed to have released and discharged the seller from the disclosed obligations with respect to the asset;

1.  

   (b)     each obligor and each other person having any right, title or interest in the asset shall be deemed to have consented to and accepted the assumption by the Corporation or acquirer as the case may be of all of the disclosed obligations with respect to the asset;

1.  

   (c)     an existing instrument, whether in the form of a deed, will or otherwise, or order of any court, under or by virtue of which the seller or the Corporation has title or ownership of or rights to such asset, shall be construed and shall have effect as if for any reference to the seller or Corporation there were substituted a reference to the Corporation or the acquirer;

1.  

   (d)     an existing agreement in relation to such asset to which the seller or Corporation was a party shall have effect in so far as it is applicable to the disclosed obligations, disclosed claims and registered interest as if the Corporation or acquirer had been party to the agreement instead of the seller or Corporation;

1.  

   (e)     an existing mandate, power of attorney, authority, undertaking or consent in relation to the asset which was given to the seller or Corporation, either alone or jointly with another person, shall be deemed to have effect, as if given to the Corporation or acquirer either alone or jointly with the other person, as the case may be;

1.  

   (f)     a negotiable instrument or order for payment of money in relation to the asset which was given to the seller or Corporation before the vesting or transfer date, shall have the same effect on and from the vesting date or transfer date, as if it had been given to the Corporation or the acquirer;

1.  

   (g)     where the custody of any goods, things or documents in relation to such asset is held by the seller or the Corporation as bailee immediately before the vesting or transfer date, such goods, things or documents shall be deemed to have passed to the Corporation or acquirer and the rights and disclosed obligations of the seller or Corporation under any contract of bailment relating to any such asset shall be transferred to the Corporation or acquirer free of any claim save for disclosed claims;

1.  

   (h)     if such asset is security held immediately before the vesting date by the seller, or transfer date by the Corporation, or by a nominee of or trustee for the seller or Corporation, as security for the payment or discharge of any liability of any person, the security shall be held by the Corporation, or by the acquirer, or as the case may be, shall be held by that nominee or trustee as the nominee of, or trustee for the Corporation or acquirer, with the same priority and security as the seller or Corporation, and to the extent of that liability, shall be available as security for the payment or discharge of that liability or if applicable future liabilities, and advances;

1.  

   (i)     the Corporation or acquirer shall have the rights, powers, and remedies for ascertaining, protecting or enforcing the rights, titles, interests or obligations in respect of any legal or other proceedings or applications to any authority pending immediately before the vesting date or transfer date by or against the seller or Corporation, and resisting any disclosed claims or registered interests as if they had at all times been the rights, titles, interest and obligations of the Corporation or acquirer;

1.  

   (j)     a judgment or award obtained by the seller or Corporation in relation to such asset and not fully satisfied before the vesting or transfer date shall be enforceable by the Corporation or the acquirer as the case may be;

1.  

   (k)     where the interest rate under any agreement in respect of an asset acquired or disposed by the Corporation is no longer determinable as provided in the agreement, the interest rate payable under such agreement shall be the interest rate as the Corporation or acquirer may agree with the obligor of the agreement or on the prevailing market rate.

(5)     Without prejudice to paragraphs (1), (2), (3) or (4), a vesting or transfer of any asset in or by the Corporation shall not —

1.  

   (a)     be regarded as placing the Corporation, the seller or any person deriving title from the Corporation or any other person in breach of, or default under, any contract, or in breach of confidence;

1.  

   (b)     be regarded as giving rise to a right for any person to —

   1.  

      (i)     terminate, cancel or modify an agreement;

   1.  

      (ii)     enforce or accelerate the performance of an obligation; or

   1.  

      (iii)     require the performance of an obligation not otherwise arising for performance;

1.  

   (c)     be regarded as placing the seller, the Corporation, acquirer or any other person in breach of any law or agreement prohibiting, restricting, requiring any consent for or regulating the assignment, sale, disposition or transfer of any asset or disclosure of information except that a vesting or transfer of such asset by the Corporation shall be subject to the approval of the relevant authority having jurisdiction over such disposition;

1.  

   (d)     release a surety from an obligation;

1.  

   (e)     invalidate or discharge a contract or security;

1.  

   (f)     be regarded as being void or voidable by reason of the application of any law;

1.  

   (g)     be regarded as terminating, cancelling or varying any rights, privileges, exemptions (including any tax exemptions) or priorities to which the seller was entitled and which by virtue of this Article has vested in the Corporation.

(6)     Without prejudice to the generality of paragraphs (1), (2), (3), (4) or (5), in any proceeding brought by or against the Corporation in respect of any asset vested in the Corporation pursuant to this Article, no person shall raise as a claim or defence to such proceedings any of the following matters, unless such claim is a disclosed claim —

1.  

   (a)     that person has had or would have had a set-off or counterclaim against the seller or any other person;

1.  

   (b)     any person had a prior interest, whether legal or equitable, in the asset;

1.  

   (c)     any person was a party to or privy to any fraud, duress, coercion, undue influence, or misrepresentation;

1.  

   (d)     there was a mistake of law or fact;

1.  

   (e)     any agreement to which the asset relates was in furtherance of an illegal purpose or that any consideration given or received was unlawful or that the object of the agreement which constitutes or is one of the constituents of the asset is unlawful;

1.  

   (f)     there was a total failure of, or no consideration, or there was a partial failure of consideration;

1.  

   (g)     the person who executed or is deemed to have executed or who is a party to any document of title for the asset or written contract which evidences, gives rise to or secures the asset did not understand the document;

1.  

   (h)     the person who executed or is deemed to have executed or who is a party to any document of title for the asset or written contract which evidences, gives rise to or secures the asset did not have the capacity or the authority to do the same; and

1.  

   (i)     there is an error in any statement of account issued by the seller or any other person in respect of any debt to which the asset relates.

1.  

   (7)(a)     A person who is precluded from making a claim against the Corporation or is precluded from raising a defence against the Corporation under paragraph (6) shall be entitled to seek compensation against the seller in respect of such claim.

1.  

   (b)     Where the High Court is satisfied that the person referred to in sub-paragraph (a) has a claim against the seller including any prior equitable interest in the asset which that person could have raised or claimed but is precluded by paragraph (6), that person shall be entitled to such compensation from the seller in respect of such claim as the High Court considers fair and reasonable.

(8)     Subject to paragraph (9), a vesting or as the case may be transfer certificate executed under the seal of the Corporation stating that an asset has been vested in the Corporation or transferred by the Corporation, shall be conclusive evidence of such vesting or transfer as of the vesting or transfer date.

(9)     Within thirty days of the vesting or transfer date, the Corporation shall cause the publication of the vesting or transfer certificate in the Gazette of the member territory where such transfer or vesting took place.

1.  

   (10)(a)     Within ninety days of the publication of the vesting or transfer certificate under paragraph (9), any third party with a legal or equitable interest in an asset may file a written claim with the Corporation.

1.  

   (b)     The Corporation shall assess all claims filed under sub-paragraph (a) and may adjust the price paid for the acquisition of the asset under this Part.

(11)     A vesting or transfer certificate may be issued by the Corporation in the form set out in Annex I, after the vesting or transfer date.

(12)     The Corporation may issue a new vesting or transfer certificate to replace any vesting or transfer certificate it previously issued in order to rectify any omission or error in the vesting or transfer certificate.

(13)     Any replacement vesting or transfer certificate issued under paragraph (12) shall be conclusive evidence of such vesting or transfer as of the vesting or transfer date specified in the replacement vesting or transfer certificate and the replacement certificate shall be published within thirty days of issuance in the Gazette of the member territory where such vesting or transfer took place.

(14)     Any act done by the Corporation, seller, acquirer, receiver or any other person in reliance on a vesting or transfer certificate previously issued shall not be affected by any omission or error rectified in a replacement vesting or transfer certificate.

ARTICLE 12
REGISTRARS TO GIVE EFFECT TO VESTING AND TRANSFER CERTIFICATE

(1)     Notwithstanding the provisions of any other law, every Registrar of Lands, Registrar of the High Courts, the Registrar of Companies, other Registrars and any person maintaining a register or record of ownership, interest or security, as the case may be, shall, on receipt of the form in Annex II —

1.  

   (a)     with the vesting or transfer certificate attached to it; and

1.  

   (b)     showing the identity of the person or asset affected by the vesting or transfer, without the need for payment by the Corporation of any fees, duties including stamp duties, or taxes, or further application or filing of any further documents, do all things and make all entries in any register or record kept by that person as may be necessary to give effect to the vesting or transfer of the asset to which the vesting or transfer certificate relates.

(2)     A registrar or person who maintains a register or record mentioned under this Article shall not be liable to any person in respect of the making of any notation on the register document of title or any other entry in the register or record in reliance on the vesting or transfer certificate.

ARTICLE 13
DISPOSITION BY THE CORPORATION

(1)     The Corporation may, in accordance with the provisions of this Article, dispose of any asset whether vested or not in the Corporation and any property over which the Corporation has a security whether as a chargee, mortgagee, assignee, lienholder or otherwise.

(2)     Subject to the approval of any relevant authority having jurisdiction over the disposition of an asset by the Corporation such disposition shall have the effect of an acquisition of an asset by the Corporation as if that acquirer were the Corporation under Article 11.

(3)     A disposition of an asset by the Corporation to an acquirer shall have the effect of transferring the Corporation's present and future rights, title and interest in, and disclosed obligations with respect to, such asset, free of any encumbrance or claim except for registered interests prevailing as at the date specified in the transfer certificate as the date of disposition and disclosed claims.

ARTICLE 14
EFFECTS OF ACQUISITION OR MANAGEMENT OF ASSETS

(1)     No cause of action lies or is maintainable against the Corporation by reason solely of the acquisition or management of an asset by the Corporation.

(2)     Where the Corporation acquires or manages an asset, the Corporation may direct the approved financial institution to —

1.  

   (a)     deliver to the Corporation all its books and records in relation to the asset concerned and any documents of title that it holds for any property that is subject to a security that is part of the asset; and

1.  

   (b)     provide any information or explanation that the Corporation requires in relation to those books, records and documents.

(3)     Within sixty days after the acquisition or management of an asset from an approved financial institution, the Corporation shall make reasonable efforts to notify at the last known address of each debtor, associated debtor, guarantor or surety in relation to the credit facility concerned of

1.  

   (a)     the acquisition of the asset by the Corporation; or

1.  

   (b)     the management of the asset by the Corporation.

(4)     Notwithstanding paragraph (3), the Corporation is not liable for any failure or delay to notify such person, and any acquisition or management of the asset is deemed valid.