Credit Institutions (Stabilisation) Act 2010

39.

Effect of transfer order — general.

39.— (1) A transfer order has effect subject to any term or condition imposed in the order.

(2) On the date specified in a transfer order, all the assets and liabilities specified in the order (whether located in the State or not) are transferred to the transferee.

(3) On and after the transfer of an asset or liability under a transfer order—

( a) the transferee has the same rights (including priorities) and obligations in respect of those assets and liabilities as the transferor had immediately before the transfer, and

( b) the transferor no longer has those rights and obligations.

(4) In particular, unless the transfer order specifies otherwise, and without limiting the generality of subsection (3)—

( a) any account included in the transfer is transferred to the transferee on the date of the transfer and becomes, on and after that date, an account between the transferee and the account holder with the same rights and subject to the same rights and obligations (including rights of set-off) as would have been applicable before the transfer,

( b) any order, instruction, direction, mandate or authority given, whether before or after the transfer, by the account holder in relation to such an account or any obligation entered into by the transferor in relation to any person and subsisting on that date, has effect after the transfer of the account,

( c) any amount owing on such an account by the account holder to the transferor on that date becomes due and payable by the account holder to the transferee, and any amount owing on such an account by the transferor to the account holder on that date becomes due and payable by the transferee to the account holder,

( d) all property (whether real or personal, and including choses in action) specified in the transfer order transfers to the transferee,

( e) all contracts, agreements, conveyances, mortgages, deeds, leases, licences, undertakings, notices and other instruments (whether or not in writing) entered into by, made with, given to or by, or addressed to the transferor (whether alone or with another person) relating to property referred to in paragraph (d) are, to the extent that they were previously binding on and enforceable by, against or in favour of the transferor, binding on and enforceable by, against, or in favour of the transferee as fully and effectually in every respect as if the transferee had been the person by whom they were entered into, with whom they were made, or to or by whom they were given or addressed (as the case may be),

( f) security held by the transferor in connection with the assets and liabilities transferred as security for the payment of the debts or liabilities (whether present or future and whether actual or contingent) of any person are transferred to the transferee as security for the payment of such debts and liabilities to the transferee,

( g) where the amount secured by such security includes future advances to, or liabilities of, a person, the security becomes available to the transferee as security for future advances to that person by, and future liabilities of that person to, the transferee to the extent to which future advances by or liabilities to the transferor were secured by it immediately before the date of transfer,

( h) the transferee, in relation to any security transferred to it and the amount secured by that security in accordance with the terms of the security, becomes entitled to the same rights and priorities and subject to the same obligations as those to which the transferor would have been F48 [ entitled and subject if ] the security had continued to be held by the transferor,

( i) except to any extent that the relevant transfer order provides otherwise—

(i) agreements made or other things done by or in relation to the transferor shall be treated, so far as may be necessary for the purposes of, in connection with or in consequence of the transfer, as made or done by or in relation to the transferee (as the case may be), and

(ii) references to the transferor, or to any officer or employee of the transferor, in instruments or documents relating to the assets and liabilities transferred have effect as if they were references to the transferee, or to any officer or employee of the transferee (as the case may be),

and

( j) where, immediately before the transfer date, any legal proceedings are pending to which the transferor is a party and the proceedings have reference to the assets and liabilities transferred, the proceedings continue, and the name of the transferee is substituted (to any extent necessary) for that of the transferor.

(5) Where the transferor is F49 [ a building society ] and a share account is included in the transfer of assets and liabilities—

( a) where the transferee is also F49 [ a building society ]

(i) if the transferee has agreed that the account holders of the transferor shall have membership rights in the transferee, on and after that transfer the holder of the transferred share account has such rights in the transferee, and

(ii) in any other case, on that transfer the account becomes a deposit account and the account holder has no membership rights in the transferee,

and

( b) in any other case, on that transfer the account becomes a deposit account with the transferee.

F50 [ (5A) If

( a ) the transferor is a building society,

( b ) a share account is included in the transfer of assets and liabilities, and

( c ) the share account becomes a deposit account in the transferee pursuant to subsection (5),

the holder of that account continues to have the membership rights in the transferor that he or she had before the transfer, including (without limitation) voting rights and rights to participate in any surplus on a winding-up.

(5B) Subsection (5A) has effect notwithstanding anything in

( a ) the Building Societies Act 1989 , or

( b ) the memorandum of association or rules of the transferor. ]

F51 [ (6) The transfer of assets and liabilities under a transfer order takes effect notwithstanding

( a ) any duty or obligation to any person that would otherwise prevent or restrict the transfer,

( b ) any provision of any enactment, rule of law, code of practice or agreement providing for or requiring

(i) notice to any person,

(ii) the consent, approval or concurrence of any person, or

(iii) any formality such as registration,

( c ) any other rule of law or equity,

( d ) any code of practice made under an enactment,

( e ) the listing rules of a regulated market or the rules of any other market on which the shares of the transferor are traded,

( f ) the memorandum of association or articles of association of the transferor, or

( g ) any agreement which the transferor is a party to, is bound by, or has an interest in,

except to any extent to which the transfer order expressly provides otherwise. ]

Annotations:

Amendments:

F48

Substituted (28.10.2011) by Central Bank and Credit Institutions (Resolution) Act 2011 (27/2011), s. 110(5) and sch. 2 part 5 item 47, S.I. No. 548 of 2011.

F49

Substituted (28.10.2011) by Central Bank and Credit Institutions (Resolution) Act 2011 (27/2011), s. 110(5) and sch. 2 part 5 item 48, S.I. No. 548 of 2011.

F50

Inserted (28.10.2011) by Central Bank and Credit Institutions (Resolution) Act 2011 (27/2011), s. 110(5) and sch. 2 part 5 item 49, S.I. No. 548 of 2011.

F51

Substituted (28.10.2011) by Central Bank and Credit Institutions (Resolution) Act 2011 (27/2011), s. 110(5) and sch. 2 part 5 item 50, S.I. No. 548 of 2011.