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PART IV
MANAGEMENT OF ASSETS

ARTICLE 15
INTERPRETATION IN RELATION TO PART IV

In this Part, unless the context otherwise requires —

“affected person” means —

(a) any company owing a duty or liability under a credit facility to the Corporation or any subsidiary of the Corporation, whether present, future, vested or contingent;

(b) any subsidiary of the company referred to in paragraph (a);

(c) any company which has provided security for the performance of or discharge of a duty or liability owed by any person to the Corporation or any subsidiary of the Corporation, whether present, future, vested or contingent; or

(d) any company where at least twenty per cent of its share capital has been charged, pledged or mortgaged by any person to secure the performance of or discharge of a duty or liability owed by any person to the Corporation or any subsidiary of the Corporation, whether present, future, vested or contingent;

“officer” in relation to the affected person includes a receiver, receiver- manager, liquidator and director as defined in the law related to companies;

“primary affected person” means any company referred to in paragraph (a) of the definition of “affected person”;

“secured creditor” means a person who holds as security for a liability of an affected person —

(a) a charge, over the land belonging to the affected person, duly registered under the law relating to land;

(b) a charge on the undertaking or property of the affected person registered under the law relating to companies;

(c) an assignment by an affected person of its rights under an agreement to purchase land or a parcel of a building where the document of title to the land or the title to the parcel of a building has not been issued at the time of the assignment;

(d) the document of title to any land or any lease belonging to the affected person and in respect of which a caveat has been duly entered in accordance with the provisions of the law relating to land;

(e) a charge, mortgage, pledge or lien over marketable securities or cash belonging to the affected person and which, is registered under the law relating to companies.

ARTICLE 16
ESTABLISHMENT AND FUNCTIONS OF THE OVERSIGHT COMMITTEE

(1) There is hereby established the Oversight Committee whose functions shall be —

(a) to approve the appointment of a special administrator under Article 21;

(b) to approve the appointment of an independent advisor in the manner set out under Article 28;

(c) to approve the recommendations made by the Corporation for the extension or termination of any moratorium in effect pursuant to Article 40; and

(d) to approve the termination of the —
1. (i) appointment of a special administrator, or
1. (ii) the administration of an affected person,

on the recommendation of the Corporation.

(2) The Oversight Committee shall be appointed by the Monetary Council on the recommendation of the Participating Governments and shall be constituted as follows —

(a) a representative of the Ministry of Finance of a member territory;

(b) a representative of the Attorney General of a member territory;

(3) No act or proceeding of the Oversight Committee shall be invalid because of —

(a) any vacancy in the membership, or any defect in the constitution, of the Oversight Committee;

(b) any contravention by any member of the Oversight Committee of Article 97; or

(4) The decision of the Oversight Committee shall be final and binding.

ARTICLE 17
APPLICATION BY AFFECTED PERSON FOR APPOINTMENT OF SPECIAL ADMINISTRATOR

Subject to Article 19, the board of directors or the majority of the members of an affected person may apply to the Corporation and the Corporation may recommend to the Oversight Committee the appointment of a special administrator of the affected person.

ARTICLE 18
RECOMMENDATION BY CORPORATION FOR APPOINTMENT OF SPECIAL ADMINISTRATOR

Subject to Article 19, the Corporation may, on its own motion, recommend to the Oversight Committee the appointment of a special administrator of any affected person.

ARTICLE 19
CRITERIA FOR APPOINTMENT OF SPECIAL ADMINISTRATOR

The Corporation may recommend the appointment of a special administrator under Article 17 or 18 if the Corporation is satisfied that it would serve the public interest to do so or if the Corporation is satisfied that —

(a) the primary affected person —
1. (i) is unable to pay its debts as they fall due; or
1. (ii) is unable to fulfill its obligations to its creditors;

(b) the survival of the primary affected person and the whole or any part of its assets as a going concern may be achieved;

(d) the appointment may achieve a more advantageous realisation or a more expeditious settlement of a duty or liability owed by any person to the Corporation or any subsidiary of the Corporation, whether future, present, vested or contingent.

ARTICLE 20
QUALIFICATIONS OF SPECIAL ADMINISTRATOR

(1) A person shall not qualify to be appointed as a special administrator unless that person —

(a) is a natural person;

(b) has consented in writing to his appointment and has not withdrawn his consent as at the date of his appointment; and

(2) The following persons shall be qualified to be appointed as a special administrator —

(a) a company auditor who has the requisite experience approved under the law relating to companies;

(b) a person who has, in the opinion of the Corporation, the requisite experience in any of the following areas —
1. (i) finance;
1. (ii) accounting;
1. (iii) asset management;
1. (iv) banking;
1. (v) investment; or
1. (vi) other related disciplines; or

(3) The following persons shall not be qualified to be appointed as a special administrator or independent advisor —

(a) a corporation;

(b) an undischarged bankrupt;

(d) an auditor of the affected person; or

(e) an officer of the affected person.

ARTICLE 21
APPOINTMENT OF SPECIAL ADMINISTRATOR

(1) The Corporation may, pursuant to Articles 17 and 18 on the approval of the Oversight Committee, appoint the special administrator.

(2) The Corporation may at any time after the appointment of the special administrator under paragraph (1) —

(a) appoint an additional special administrator; or

(b) appoint a new special administrator to replace any existing special administrator,

on the approval of the Oversight Committee.

(3) Any decision of the Corporation under this Article and Articles 17, 18 and 19 shall be final and binding.

(4) The special administrator shall report to the Oversight Committee and the Corporation on terms to be agreed no less than every six months.

ARTICLE 22
CIRCUMSTANCES WHERE SPECIAL ADMINISTRATOR CANNOT BE APPOINTED

(1) A special administrator shall not be appointed in respect of an affected person —

(a) if the affected person is being wound up by the court and the winding up order is still subsisting;

(b) if the affected person is —
1. (i) a financial institution licensed under the law relating to banking;
1. (ii) an approved financial institution under this Agreement;
1. (iii) an entity licensed or registered under the law relating to insurance or the law relating to securities; or
1. (iv) a credit union registered under the law relating to cooperative societies.

(2) Notwithstanding paragraph (1), a special administrator may be appointed where the approval of the relevant authority is obtained.

ARTICLE 23
DURATION OF ADMINISTRATION

(1) The special administrator shall be appointed for a period not exceeding two years.

(2) The administration of the affected person by the special administrator shall commence from the date of appointment of the special administrator and shall continue until the appointment is terminated by the Corporation with the approval of the Oversight Committee.

(3) Where the special administrator's appointment is terminated under this Article, he shall be discharged from all duties and liabilities in respect of his administration or otherwise in relation to his conduct as a special administrator.

(4) Nothing in this Article shall prevent an action or other proceedings by any party for loss or damage due to the willful misconduct or gross negligence of the special administrator.

ARTICLE 24
NOTIFICATION OF APPOINTMENT OF SPECIAL ADMINISTRATOR

(1) Where a special administrator has been appointed under Article 17 or 18, the special administrator shall within —

(a) two days of the appointment give written notice to the affected person;

(b) seven days of the appointment give written notice to the Registrar of Companies; and

(c) seven days after the appointment cause a notice of the special administrator's appointment to be published in the Gazette and at least one local newspaper in each member territory.

(2) Where a special administrator has been appointed every communication, contract and document including an invoice and negotiable instrument, issued by or on behalf of the affected person or the special administrator, in relation to the affected person, shall contain the words “special administrator appointed”.

(3) A contravention of this Article shall not affect the validity of the acts of the special administrator in the administration of the affected person.

ARTICLE 25
EFFECT OF APPOINTMENT OF SPECIAL ADMINISTRATOR

The appointment of a special administrator under Article 17 or 18 shall not —

(a) be regarded as placing the special administrator, the affected person or any other person in breach of or in default under any contract, or in breach of confidence;

(b) be regarded as giving rise to a right to 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;

(c) be regarded as placing the special administrator, the affected person or any other person in breach of any law or agreement prohibiting, restricting or regulating the assignment, sale, disposition or transfer of any asset or disclosure of information;

(d) release a surety from an obligation;

(e) invalidate or discharge a contract or security;

(f) be regarded as terminating, cancelling or varying any right, privilege, exemption (including any tax exemption) or priorities in relation to an asset;

(g) be regarded as placing the Corporation, the Oversight Committee or the special administrator in breach of any law.

ARTICLE 26
GENERAL POWERS AND DUTIES OF SPECIAL ADMINISTRATOR

(1) The special administrator shall have the powers specified in Annex III.

(2) Without prejudice to Articles 34, 36 and 39, the special administrator shall, on his appointment, take into his custody or under his control all the assets to which the affected person is or appears to be entitled and shall manage the assets and affairs of the affected person.

ARTICLE 27
SPECIAL ADMINISTRATOR AS AFFECTED PERSON'S AGENT

The special administrator shall, in the administration of the affected person, be deemed to be acting as the agent of the affected person.

ARTICLE 28
APPOINTMENT OF INDEPENDENT ADVISOR

Where a special administrator is appointed under Article 17 or 18, the Oversight Committee on the recommendation of the Corporation may approve and appoint an independent advisor.

ARTICLE 29
QUALIFICATIONS OF INDEPENDENT ADVISOR

No person shall be appointed as an independent advisor unless in the opinion of the Corporation —

(a) the person is capable of performing the duties of an advisor;

(b) the person has consented in writing to the appointment and has not withdrawn its consent as at the date of its appointment; and

(c) the person is —
1. (i) an investment bank;
1. (ii) a firm of accountants; or
1. (iii) a person who, in the opinion of the Corporation, has the requisite experience or is capable and is not excluded under paragraph (3) of Article 20 of performing the duties of an independent advisor.

ARTICLE 30
TWO OR MORE SPECIAL ADMINISTRATORS

Where two or more persons are appointed as the special administrators of an affected person —

(a) the functions or the powers of the special administrator may be performed or exercised by any one of them or by both or all of them jointly;

(b) a reference to the special administrator in this Agreement shall be a reference to whichever one of the persons appointed, as the case may be.

ARTICLE 31
OFFICERS OF AFFECTED PERSON TO PERFORM OR EXERCISE FUNCTION WITH WRITTEN APPROVAL

(1) No person, including the board of directors of the affected person, other than the special administrator shall perform or exercise or purport to perform or exercise a function as an officer of the affected person, except with the prior written approval of the special administrator.

(2) For the purpose of paragraph (1) the special administrator shall be entitled to exercise all the functions of the board of directors of the affected person.

ARTICLE 32
DEALINGS WITH AFFECTED PERSON'S ASSETS

If an affected person or any person purports to enter on behalf of the affected person, a transaction or dealing with any asset of the affected person, the transaction or dealing shall be void unless —

(a) it is a transaction or dealing entered into by the special administrator; or

(b) the prior written consent of the special administrator was obtained for the transaction or dealing.

ARTICLE 33
DAMAGES FOR WRONGFUL DEALING

(1) Where a court finds a person has contravened Article 32 and the court is satisfied that the affected person or another person has suffered loss or damage, it may grant damages to the person.

(2) Notwithstanding paragraph (1) the special administrator may commence civil proceedings against any person to recover the asset of the affected person or compensation in lieu of recovery.

ARTICLE 34
OBLIGATIONS OF OFFICER OF AFFECTED PERSON

(1) An officer or employee of the affected person shall within seven days after the appointment of the special administrator —

(a) deliver to the special administrator all books and accounts of the affected person in the possession of the officer or employee; and

(b) if the officer or employee knows the location of other books and accounts relating to the affected person, inform the special administrator of the location of those books and accounts.

(2) An officer or employee of an affected person shall report, take directions and give such other assistance as the special administrator may reasonably require.

ARTICLE 35
INVESTIGATION OF AFFAIRS

(1) The special administrator may require any of the persons specified in paragraph (2), within twenty-one days or such extended time as the special administrator may grant, to verify and submit to the special administrator a statement as to the affairs of the affected person in a form determined by the special administrator.

(2) The special administrator may require the following persons to verify and submit the statement of affairs referred to in paragraph (1) —

(a) persons who are or have been officers of the affected person;

(b) persons who have taken part in the formation of the affected person at any time within two years prior to the appointment of the special administrator; or

(c) persons who are in the affected person's employment or have been in the affected person's employment within two years before the appointment of the special administrator who, in the opinion of the special administrator, have knowledge of the information required.

(3) The special administrator may at any time release a person from any obligation imposed on him under paragraph (1).

(4) The special administrator shall, on completion of his functions and duties under this Agreement, return to the affected person any books, statements, documents or anything referred to under paragraph (1) of Articles 34 and Articles 36 and 37.

ARTICLE 36
SPECIAL ADMINISTRATOR'S RIGHTS TO THE BOOKS OF THE AFFECTED PERSON

(1) No person is entitled, as against the special administrator —

(a) to retain possession of the books and accounts of the affected person; or

(b) to claim or enforce a lien on the books of the affected person.

(2) The special administrator may give notice to a person and such person shall deliver to the special administrator the books and accounts so specified in the notice that are in his possession.

(3) Paragraphs (1) and (2) shall not apply in relation to any books and accounts —

(a) to which a secured creditor of the affected person is entitled to possession otherwise than because of a lien; or

(b) of the affected person impounded by the relevant authority,

but the special administrator shall be entitled to inspect and make copies of such books.

ARTICLE 37
SPECIAL ADMINISTRATOR'S RIGHTS TO ASSETS OF THE AFFECTED PERSON

(1) The special administrator may require any person who has in his possession or control assets or books and accounts to which the affected person appears to be entitled to deliver, convey, surrender or transfer the assets or books and accounts to the special administrator forthwith or within such period as the special administrator may direct.

(2) The special administrator may seize in good faith, any property which is not property of the affected person if at the time of the seizure there are reasonable grounds to believe that the property —

(a) is the subject of a fraudulent transfer; or

(b) has otherwise been disposed of in an attempt to conceal or disguise it so as to avoid seizure by the special administrator and he shall be immune from liability to any person in respect of any loss or damage resulting from the seizure.

(3) Where there are no longer any reasonable grounds for seizure under paragraph (2) the special administrator shall return the property to the person from whom it was seized.

ARTICLE 38

EFFECT OF OBSTRUCTING OR HINDERING THE SPECIAL ADMINISTRATOR

No person shall obstruct or hinder the exercise of any duty, right or power by a special administrator.

ARTICLE 39

DISCLAIMER

(1) Subject to paragraph (3), where any part of the asset of the affected person consists of —

(a) any interest in land which is burdened with onerous covenants;

(b) shares in corporations;

(d) any other asset that is not saleable, or not readily saleable,

the special administrator may within twelve months after he becomes aware of any of the above-mentioned assets, disclaim any such asset.

(2) The rights of any person affected by the special administrator pursuant to the exercise of his power to disclaim under paragraph (1) shall be dealt with in the manner set out in the proposal made pursuant to Article 44 and any compensation to such person shall rank as an unsecured debt.

(3) The special administrator may not exercise his power under paragraph (1) to disclaim any market contract.

(4) For the purpose of paragraph (3), a “market contract” means a contract subject to the rules of a clearing agency entered into by the clearing agency with a participant under a novation which is both in accordance with those rules and for the purpose of the clearing and settlement of transactions in securities effected on, or subject to the rules of a securities exchange.

ARTICLE 40

MORATORIUM DURING SPECIAL ADMINISTRATOR

(1) Subject to paragraph (6), on the appointment of the special administrator, a moratorium shall take effect during which —

(a) no person shall take steps to bring any petition for the winding up of the affected person without the prior leave of the court unless the court directs otherwise;

(b) no resolution may be passed or order made for the winding up of the affected person;

(c) no receiver, receiver-manager or liquidator, except any receiver, receiver-manager or liquidator appointed by the relevant authority in respect of any of the persons referred to in paragraph (1)(b) of Article 22, may be appointed, or if appointed, his appointment shall immediately cease and he shall vacate his office;

(d) no steps may be taken —
1. (i) to create, perfect or enforce any security over any asset of the affected person;
1. (ii) to enforce a judgment over any asset of the affected person without the prior leave of the court unless the court directs otherwise;
1. (iii) to re-possess any asset in the possession, custody or control of the affected person; or
1. (iv) to set off any debt owing to the affected person in respect of any claim against the affected person.

(e) no proceedings and no execution or other legal process may be commenced or continued with, and no distress may be levied, against the affected person or its assets without the prior leave of the court unless the court directs otherwise; and

(f) no proceedings and no execution or other legal process may be commenced, or continued with, against any person providing a guarantee or acting as a guarantor for the liability of the affected person in respect of that liability without the prior leave of the court unless the court directs otherwise.

(2) The duration of the moratorium provided for in paragraph (1) shall be for a period of twelve months commencing from the date of the appointment of the special administrator and may be terminated at any time by the Corporation with the approval of the Oversight Committee.

(3) The Oversight Committee may extend the moratorium for a further period of up to twelve months to complete the implementation of the proposal approved under Article 46 or 48, or for exceptional circumstance, as the case may be.

(4) If the period of the moratorium is extended pursuant to paragraph (3), a notice of the extension shall be published in the Gazette and in at least one local newspaper of wide circulation in each member territory.

(5) Nothing in this Article shall prevent any civil or criminal proceedings from being instituted or continued by any relevant authority under any written law against the affected person.

(6) Any decision of the Corporation under this Article shall be final and binding.

ARTICLE 41
VACATION OF OFFICE OF RECEIVER

(1) Any receiver, receiver-manager, or liquidator who vacates his office pursuant to paragraph (1)(c) of Article 40 shall immediately hand over all the assets and books and accounts of the affected person to the special administrator.

(2) All sums properly incurred in respect of the costs, expenses and remuneration of such receiver, receiver-manager, or liquidator, as the case may be, shall be charged on and paid out of the realised proceeds of the affected person in the manner set out in the proposal.

ARTICLE 42
UNDUE PREFERENCE

Without prejudice to Article 43 the special administrator shall exercise the powers of the liquidator in relation to the avoidance of undue preference and fraudulent transfers under the law relating to companies.

ARTICLE 43
RECOVERY OF CASH CONSIDERATIONS FROM ASSETS ACQUIRED OR SOLD BEFORE THE APPOINTMENT OF SPECIAL ADMINISTRATOR

(1) Where any asset has been acquired by the affected person for a cash consideration within a period of two years before the appointment of a special administrator under this Agreement —

(a) from a person who was at the time of the acquisition a director of the affected person; or

(b) from a company of which, at the time of the acquisition, a person was a director who was also a director of the affected person,

the special administrator may recover from the person or company from which the asset was acquired any amount by which the cash consideration for the acquisition exceeded the value of the asset at the time of its acquisition.

(2) Where any asset has been sold by the affected person for a cash consideration within a period of two years before the appointment of a special administrator under this Agreement —

(a) to a person who was at the time of the sale a director of the affected person; or

(b) to a company of which, at the time of the sale, a person was a director who was also a director of the affected person,

the special administrator may recover from the person or company to which the asset was sold any amount by which the value of the asset at the time of sale exceeded the cash consideration.

(3) For the purposes of this Article —

“cash consideration”, in relation to an acquisition or sale by the affected person, means consideration for the acquisition or sale payable otherwise than by the issue of shares in the affected person;

“value of the asset” includes the value of any goodwill or profits which might have been made from the asset for similar cash consideration;

“director” has the meaning assigned to it in the law relating to companies.

ARTICLE 44
SPECIAL ADMINISTRATOR TO PREPARE PROPOSAL

(1) The special administrator shall as soon as reasonably practicable from the date of his appointment prepare and submit to the Corporation a proposal setting forth the special administrator's plan with respect to the affected person.

(2) The proposal of the special administrator or any modification to the proposal under Article 48 may include any provision as the special administrator thinks fit.

(3) Without prejudice to the generality of the foregoing, the proposal may include provision for —

(a) a compromise or arrangement between the affected person and its creditors or any class of them or between the affected person and its members or any class of them or between the affected person and its debtors or any class of them;

(b) the alteration or reduction of all or part of the share capital of the affected person;

(d) the transfer to a company of the whole or any part of the undertaking, property or liabilities of the affected person;

(e) the transfer to any company of all or part of the shares, or all the shares of a particular class, in the affected person;

(f) the continuation by or against the company referred to in paragraph (d) of any legal proceedings pending by or against the affected person;

(g) the dissolution without winding up of the affected person;

(h) any other provision necessary to ensure that the special administrator's proposal or plan or any compromise, arrangement, reconstruction or amalgamation with respect to the affected person shall be fully and effectively carried out.

(4) Upon receiving the proposal from the special administrator the Corporation shall submit the proposal to the independent advisor.

(5) The independent advisor shall review the reasonableness of the proposal taking into consideration the interests of the unsecured creditors, secured creditors and members of the affected person and shall provide his report to the Corporation within thirty days of receipt of the proposal.

ARTICLE 45
CONSIDERATION AND APPROVAL OF PROPOSAL

(1) The Corporation shall consider the proposal submitted by the special administrator.

(2) The Corporation may approve the proposal for implementation once the Corporation has received the proposal together with the independent advisor's report.

ARTICLE 46
SECURED CREDITORS MEETING

(1) The special administrator shall, after the approval of the proposal by the Corporation, send by prepaid registered post to the last known address of the affected person and each of the secured creditors of the affected person known to the special administrator —

(a) a copy of the proposal;

(b) a copy of the report of the independent advisor;

(c) where the Corporation considers appropriate, a memorandum from the Corporation setting out such matters which in the view of the Corporation should be taken into account by the secured creditors in considering the proposal; and

(d) a notice of meeting of secured creditors for the purpose set out in this Article.

(2) The special administrator shall convene a meeting of secured creditors of the affected person no later than thirty days after issuance of the notice to the secured creditors under paragraph (1).

(3) The meeting of secured creditors of the affected person convened under paragraph (2) shall decide whether to approve or reject the proposal.

(4) Where —

(a) a majority in value of the secured creditors, present and voting, either in person or by proxy, at the meeting approves the proposal; or

(b) there are no secured creditors of the affected person known to the special administrator and the Corporation approves the proposal under paragraph (2) of Article 45,

the proposal, including the proposal as it may subsequently be modified, shall be binding on the affected person, all members and creditors of the affected person and any other person affected by the proposal, whether or not the person had knowledge or notice of the proposal.

(5) For the purpose of paragraph (4) (a), a resolution to approve the proposal with any modification shall be deemed to be a rejection of the proposal.

(6) Notwithstanding any law —

(a) the approval or the implementation of a proposal under paragraph (4), including the proposal as it may subsequently be modified under Article 48, shall not release or discharge any security provided by any person to secure any duty or liability owed by the affected person to any creditor of the affected person; and

(b) each such security and any such duty or liability of the person providing the security shall remain valid and enforceable against that person notwithstanding the approval or implementation of the proposal, including the proposal as it may subsequently be modified under Article 48, or any compromise, arrangement, reconstruction or amalgamation in connection with the affected person.

(7) The failure to notify any secured creditor of the affected person of the meeting of the secured creditors shall not invalidate the meeting convened under paragraph (2) nor the validity of the resolution passed at that meeting.

(8) For the avoidance of doubt, if the Corporation is a secured creditor of the affected person, the Corporation shall be entitled to attend and vote at a meeting of secured creditors of the affected person convened by the special administrator.

ARTICLE 47
IMPLEMENTATION OF PROPOSAL

(1) Subject to Articles 46, 48 and 49, the special administrator shall implement the proposal in accordance with its terms.

(2) The special administrator shall —

(a) within fourteen days from the date of the approval of the proposal by the secured creditors of the affected person under Article 46;

(b) where there are no secured creditors known to the special administrator, within fourteen days from the date of the approval of the proposal by the Corporation under paragraph (2) of Article 45; or

cause to be published in the Gazette and at least one local newspaper of wide circulation in each member territory, the approval of the proposal and the time and place for any creditor of the affected person to examine the details of the proposal.

(3) Notwithstanding the provisions of any law or contract,

(a) a proposal approved or modified under this Agreement may be implemented; and

(b) the special administrator shall have the power to implement and do all things necessary to fully and effectively carry out and give effect to the proposal or any part of the proposal without the need for any notice to or approval or consent of any member or creditor of the affected person or any other person affected by the proposal, or approval of or confirmation by a court; and

(c) any such notice, approval, consent or confirmation (whether required under any law or contract or otherwise) shall be deemed to have been duly given or obtained, as the case may be.

(4) Where any part of the assets of the affected person is subject to the rights of the secured creditors or any other person and a proposal has been approved under this Agreement, the special administrator shall be entitled to deal with such asset in the manner set out in the proposal.

(5) The special administrator shall apply all proceeds realised in the implementation of the proposal in the manner set out in the proposal.

(6) Where a special administrator transfers property or liabilities pursuant to a proposal, then that property shall be transferred to and vested in, and those liabilities shall be transferred to and become the liabilities of, the transferee, free in the case of any particular property if the proposal so directs, from any charge, caveat or other encumbrance.

(7) Notwithstanding anything to the contrary in any law, the Corporation or any related company as defined in the law relating to companies or subsidiary of the Corporation may acquire any property of, or marketable securities issued by, the affected person.

(8) Notwithstanding anything to the contrary in any law, the special administrator shall have the power to do all things necessary to give effect to and to implement the proposal approved in accordance with Articles 44 to 46 or modified in accordance with Article 48.

ARTICLE 48
MODIFICATIONS TO THE PROPOSAL

(1) The special administrator may at any time after —

(a) the approval of the proposal by the secured creditors of the affected person under Article 46; or

(b) where there are no secured creditors known to the special administrator, the approval of the proposal by the Corporation under paragraph (2) of Article 45,

propose modifications to the proposal.

(2) The independent advisor appointed in relation to the affected person shall review the reasonableness of the proposed modifications and shall determine the necessity to convene a meeting of the secured creditors to approve the proposed modifications.

(3) The decision of the independent advisor under paragraph (2) shall be binding on the special administrator, the affected person, all members and creditors of the affected person and any other person affected by the proposal, whether or not the person had knowledge or notice of the modified proposal.

(4) Where the independent advisor thinks that it is necessary to convene a meeting of the secured creditors to consider the proposed modifications, the special administrator shall within thirty days from the receipt of the report of the independent advisor on the proposed modifications or such extended period as may be granted by the Corporation, convene a meeting.

(5) The special administrator shall, prior to the meeting convened under paragraph (4) send by prepaid registered post to the last known address of the affected person and each of the secured creditors of the affected person known to the special administrator —

(a) a copy of the proposed modifications;

(b) a copy of the report of the independent advisor on the proposed modifications;

(c) where the Corporation determines it is appropriate, a memorandum from the Corporation setting out such matters which in the view of the Corporation should be taken into account by the secured creditors in considering the proposed modifications; and

(d) a notice of the meeting of secured creditors for the proposed modifications set out in this Article.

(6) The meeting of the secured creditors of the affected person to consider the proposed modifications shall be convened and conducted in the manner set out in Article 46.

(7) If the independent advisor thinks that it is not necessary to convene a meeting of the secured creditors within the period specified in paragraph (4), the special administrator may implement the proposed modifications which shall be binding on the affected person, all members and creditors of the affected person and any other person affected by the proposal, whether or not the person had knowledge or notice of the modifications.

(8) Without prejudice to Article 49, compliance with any approval condition imposed by a relevant authority shall not be construed as a modification to the proposal for the purposes of this Article.

ARTICLE 49
CONDITIONS FOR REGULATORY APPROVAL

(1) Where —

(a) the approval of any relevant authority is required to implement the proposal; or

(b) the approval of any relevant authority is required to implement any proposed modifications to the proposal,

and approval conditions are imposed by the relevant authority, the Corporation may, notwithstanding that the secured creditors of the affected person have agreed to the proposal under Article 46 or 48, direct the special administrator to abandon the proposal or otherwise discontinue the implementation of the proposal if the Corporation thinks that such approval conditions are not in the interest of the affected person.

(2) The decision of the Corporation under paragraph (1) shall be binding on the affected person, all members and creditors of the affected person and any other person affected by the proposal, whether or not the person had knowledge or notice of the proposal.

ARTICLE 50
REJECTION OR DISCONTINUANCE OF PROPOSAL

Where the Corporation directs the special administrator to abandon the proposal or otherwise discontinue the implementation of the proposal under Article 49 or the proposal is not approved under Article 46 or 48, the Corporation may consider other options to deal with the management and disposition of the assets of the affected person and may —

(a) request the special administrator to submit a new proposal;

(b) remove the moratorium imposed under Article 40; or

ARTICLE 51
REPORT OF MISCONDUCT

If an investigation into the affairs of an affected person by the special administrator reveals any fraud, misfeasance or other misconduct in connection with the promotion or formation of the affected person or in the management of an affected person or its affairs, or where there has been any misappropriation or wrongful retention of any asset which belongs to an affected person, the special administrator shall report such fraud, misfeasance or misconduct to the relevant authority or enforcement body.

ARTICLE 52
VALIDITY OF TRANSACTION

Any payment made, transaction entered into, or any other act or thing done in good faith by, or with the consent of the special administrator, is valid for the purposes of this Agreement and shall not be void or voidable nor be considered as an undue preference in the winding up of the affected person.

ARTICLE 53
EXTENSION OF TIME LIMITS

Where —

(a) for any purpose an act is required to be done within a particular period or before a particular time under the provision of any law or any agreement; and

(b) this Part prevents the act from being done within that period or before that time,

the period is deemed to be extended or the time is deemed to be deferred for the duration of the period that such act is prevented by this Part from being done.

ARTICLE 54

APPRAISAL METHODOLOGY FOR INITIAL TRANSFER OF ASSETS

(1) The Corporation may, for the purpose of determining the values for the initial transfer of assets to the Corporation under this Agreement, adopt such guidelines or rules as it considers necessary for efficiency or consistency.

(2) The Corporation shall acquire assets at market value and the market value shall be determined by an independent expert appraisal based on representative samples of assets that are eligible for acquisition and on recent appraisal values as the case may be.

(3) For the purposes of determining the appraisal value mentioned in paragraph (2), the Corporation shall use internationally acceptable accounting methodologies.

(4) The long-term economic value of an asset shall be calculated on the basis of the net present value methodology.

(5) Any appraisal done for the purposes of this Article shall be valid for a period of twenty-four months.

(6) The market value beyond the twenty-four month period in paragraph (5) shall be determined by a new independent expert appraisal using the same methodology as outlined in paragraphs (2) to (4) which is valid for a period of twenty-four months.

(7) The market value referred to in paragraphs (2) and (6) shall be adjusted by the Corporation using the following criteria —

(a) market conditions;

(b) cost of holding the asset;

(d) prospect of sale or divesture of the assets;

(e) estimated period to sell the asset;

(f) likelihood of perfecting the interest in the collateral.

ARTICLE 55
POWER TO DISCHARGE PRIOR CHARGE

Where an acquired or managed asset is secured by a charge including a charge that is a collateral security, but the charge is a second or subsequent charge, the Corporation may redeem or discharge any one or more of the prior charges in accordance with its terms.

ARTICLE 56
POWER OF ENTRY TO PROTECT VALUE OR CONDITION OF LAND OR BUILDINGS

(1) Where an acquired asset or managed asset is secured by a charge over land including a charge that is a collateral security, and any one or more of the following paragraphs applies —

(a) the land or any building or structure on it has been abandoned;

(b) the land is or has become overgrown;

(d) any building or structure on the land has fallen, or there is a serious risk of the building or structure falling, into disrepair;

(e) the land or any building or structure on it is at risk from trespassers or vandalism,

then the Corporation may serve notice on the owner and any occupier of the land, to —

(i) fence or otherwise secure the boundary of the land;

(ii) clear the land of overgrown vegetation;

(iii) clear or treat the land or any building or structure on it in a manner designed to remove vermin;

(iv) repair or make secure any building or structure on the land.

(2) If the owner or any occupier fails to comply with the notice within thirty days after service of the notice, the Corporation may apply to the High Court for an order (referred to as an “entry and maintenance order”) authorising it to enter upon the land or any building, or structure on it for any one or more of the purposes stated in the notice.

(3) The Corporation shall serve a copy of an application under paragraph (2) on every person it knows to have an interest in the land.

(4) The High Court may make an order in accordance with an application under paragraph (2) and if it does so shall specify the period, being not greater than six months beginning on the date of the order, for which the order shall have effect.

(5) If the Corporation enters on the land or a building or structure under the authority of an entry and maintenance order, the Corporation shall not be taken to be a mortgagee in possession of the land or any building or structure on it.

(6) Any cost, expense or liability that the Corporation incurs pursuant to this Article —

(a) is a debt due under the asset concerned; and

(b) is recoverable from the debtor, associated debtor, guarantor, or surety concerned,

and the repayment of any such cost, expense or liability stands secured against the land.

ARTICLE 57
COLLECTION OF RENTS AND PROFITS

The Corporation may itself, or in accordance with its powers as a chargee appoint a receiver to, collect rents and profits of property, and is not obliged to sell such property at any particular time at all, but is accountable for all profits and other monetary benefits arising directly from the possession of the property.

ARTICLE 58
SALE OF ASSET BY PRIVATE TREATY OR AGREEMENT, OR TENDER

(1) Notwithstanding any enactment or law to the contrary or any expression in any deed or agreement, where the Corporation acquires or manages an asset secured by a charge over property (including a charge that is a collateral security) the Corporation is hereby empowered to exercise a power of sale over the charged property, where —

(a) interest or principal under the charge is in arrears and unpaid for three months after becoming due and the Corporation has sent a notice to the last known address;

(b) there has been a breach of some provision contained in the charge agreement or deed, or law relating to land and on the part of the chargor, or of some person concurring in making the charge, to be observed or performed, other than and besides a covenant for payment of the charge money or interest;

(c) notice requiring payment of the interest and principal of the charge within one month, has been served on the chargor or two or more chargors, guarantor or surety at the last known address;

(d) the chargor, guarantor or surety has failed to comply with the notice in sub-paragraph (c) within the stipulated one month.

(2) The Corporation may sell any asset the Corporation acquires or manages including a charged property or any part thereof by private treaty or agreement, tender or public auction.

(3) The Corporation may buy at public auction and may resell by public auction without being answerable for any loss occasioned thereby.

(4) The sale under paragraph (2) shall be based on the appraised value of the property determined by an appraiser which shall be valid for twenty-four months prior to the sale date.

(5) Subject to paragraph (6), notwithstanding anything to the contrary in any law, the Corporation or a subsidiary of the Corporation may, without having to pay any deposit, acquire any property disposed of under paragraph (2) and be entitled to set off the purchase price against the liability owed to any one or more of the following —

(a) the Corporation;

(b) any subsidiary of the Corporation.

(6) The price of any property acquired under paragraph (5) —

(a) in the case of private treaty or agreement shall be not less than the forced sale value of the property; and

(b) in the case of auction shall be not less than the reserved price set by the Corporation.

(7) The Corporation's rights under paragraphs (1) and (5) —

(a) may be exercised without the need for any approval, confirmation or order of court;

(b) are cumulative and not exclusive of any other right or remedy provided by law or contract;

ARTICLE 59
APPLICATION OF PROCEEDS OF SALE

Subject to the underlying agreement of the charge, any monies received by the Corporation, arising from the sale, after discharge of prior encumbrances to which the sale is not made subject, if any, or after payment into the High Court of a sum to meet the prior encumbrance, shall be held by the Corporation in trust to be applied by the Corporation, in the following order —

(a) first, payment of all costs, charges and expenses properly incurred by it as incident to the sale or any attempted sale;

(b) second, other money, if any, due under the charge; and

(c) third, the residue of the money so received shall be paid to the person entitled to the charged property, or authorised to give receipts for the proceeds of the sale thereof.

ARTICLE 60
TITLE OF PURCHASER WHERE THE CORPORATION SELLS ACQUIRED ASSET

(1) Where the Corporation exercises the power of sale conferred by this Agreement, the title of the purchaser shall not be impeachable on the ground, that —

(a) no case has arisen to authorise the sale;

(b) due notice was not given;

(d) the power was otherwise improperly or irregularly exercised.

(2) A purchaser is not, either before or on conveyance, concerned to see or inquire whether a case has arisen to authorise the sale, or due notice has been given, or the power is otherwise properly and regularly exercised.

ARTICLE 61
REMEDIES IN DAMAGES FOR IMPROPER OR IRREGULAR EXERCISE OF POWER

Notwithstanding paragraphs (1) and (2) of Article 58, any person injured by an unauthorised, improper, or irregular exercise of the power of sale conferred under this Agreement, shall be entitled to pursue a remedy in damages against the Corporation.

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PART IV MANAGEMENT OF ASSETS

ACT

1. Short title

2. Commencement

3. Interpretation

4. Agreement to have force of law

5. Financial provisions for giving effect to the Agreement

6. Exemptions

7. Inconsistency with other legislation

8. Transfer of assets and liabilities

9. Offences committed by a company